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The Slippery Legal Slope of Cartoon Porn
BenFenner writes "Two out of the three Virginia judges involved with Dwight Whorley's case say cartoon images depicting sex acts with children are considered child pornography in the United States. Judge Paul V. Niemeyer noted the PROTECT Act of 2003, clearly states that 'it is not a required element of any offense under this section that the minor depicted actually exists.'"
If pedophiles will get in jail whether they are looking at real CP or drawings depicting children, then why would they bother with fiction? I believe this can only bring a higher consumption of real 3D child porn.
Okay, Solomon, how do we settle this one?
Easy, keep the crime illegal, but treat depictions of the crime like we do depictions of all other crimes, as evidence of a crime and not as a seperate crime.
1) The law in question was passed after the SCOTUS ruling. The judges may be thinking that the law was crafted intentionally to avoid infringing on that ruling.
2) The judges may be be hinting to the current supreme court that the 2002 ruling should be revisited. The judges may know good and well that their particular ruling may be overturned, they may just be hoping that the current Supreme Court will narrow the "if there's no real kid in the picture, it's legal" blanket exemption.
Personally, I suspect that #1 is the "cover" reason and #2 is the "real" reason. Why? Human nature.
I hope the circuit court takes this up en blanc and either reverses the 3-judge panel in favor of the 2002 Supreme Court ruling, or gives a point-by-point legal argument to the Supreme Court detailing exactly why the 2002 ruling either does not apply in this case or was itself wrong as it applies to this case and and why it should be refined to exempt cases like this one.
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Any idea where the "nude = porn" mentality came from? For thousands of years, there was a difference between nude and porn. Taking a picture of your 1-3 year old kids playing in a bathtub, covered with suds, is not child porn. Yet under most current laws, it could be prosecuted as such.
Where did your point number two disappear? When did a nude photo become "porn" in any sense? Are we going to start burning 12-15th century paintings now, because they "depict child porn"? Destroying Greek and Roman statues? Hell, even the Sistine Chapel might be in trouble. Those cherubs look a pretty young...
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Our republic is supposed to be setup so that the majority can't run roughshod over minorities. Democracy is nothing more than codified mob rule.
Tell that to the idiots that think pure democracy is the best thing since sliced bread. I would advocate at least two changes to get us back to what the Republic was supposed to be:
1) Repeal the 17th amendment. Senators should be responsible to the state and not the people, otherwise the US Senate might as well be abolished.
2) Pass a Constitutional Amendment to overturn Reynolds v. Sims. Reynolds v. Sims was a SCOTUS ruling that prohibited state legislatures from drawing districts geographically. So it's ok for the US Senate to be drawn geographically but not for the New York State Senate? WTF was that ruling for other than a urban power grab?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
That's, imo, a hugely insightful question. My answer is also just my opinion.
I believe we lost that point (defining CP as absolutely requiring that a child had to be raped to make it) when we criminalized simple possession. The problem is we didn't know we had lost anything when we did that.
In the context of the time, criminalizing simple possession was obviously the right thing to do. Back then, the only way to get CP was to buy it. If you possessed it, you had to have bought it. If you bought it, you were giving money to people to encourage them to rape children. That's bad, no matter how you look at it.
Nowadays, things have radically changed. Most CP isn't bought; it's found. Most CP isn't made for monetary profit; it's made by kids messing around and by adults who are seeking self-validation for their perversion by producing and releasing the material. Thus, possessing CP no longer encourages it to be made. If we were just now getting around to outlawing it, we probably wouldn't because outlawing possession no longer has any real purpose, i.e. outlawing possession no longer does anything to encourage or discourage production.
In response to this, lots of other justifications have come along to keep possession illegal. There's the grooming argument; pervs can show their porn to little kids, thus convincing the kids that this behavior is normal. There's also the "continuing rape" theory that says children in CP are raped again, mentally, every time someone looks at the CP in which they appear. That second argument is just goofy-stupid and I dismiss it out of hand. The first argument, however, probably has some small (very small) merit and is enough for me to argue that no change in the legal prohibition against possession is necessary.
The problems arise when we accept any of these arguments *separately* from the original requirement that kids have to be raped to produce the stuff. If, for example, we accept that the possession of any material that can be used to groom children for abuse should be legally proscribed, then we are forced to look the other way when the forces of anti-freedom start outlawing anything they claim can be used for that purpose. They can outlaw text, drawings, photos - literally anything - if we allow the argument that anything that has the potential for misuse should be outlawed.
Since we, as a society, have accepted that the definition of CP no longer requires children to be hurt, we have opened the floodgates. Anything that a legislator considers icky enough can be outlawed. Anything that offends a prosecutor can get you arrested. Thus, things that were previously just dismissed as being, at worst, in bad taste can now result in people doing jail time. Take a picture of kids in the bath or your 10-year-old topless on the beach while vacationing in Brazil? You're risking your freedom. Use a computer to make a picture of some non-existent person who's apparently short and undeveloped? Same story. All a prosecutor has to do is convince a jury you got some kind of sick jollies from the process of creation and, wham-bam, you're in jail.
If you want to define an exact point in time, you should probably look to the early-1980s U.S. Supreme Court case where a film showing shirtless boys counting money on a bed while an adult male got dressed in the background was found to be CP. Given the overall context of the case and the implication of the film that the boys had just been paid for sex, the court held that neither nudity or sexual activity was necessary for the harmful-to-kids production of child porn. Really, though, it was a long process to get to this point. Short of Barack's oldest girl making a porn vid with her best friend and releasing it to the world, I can't imagine anything that could awaken the general populace to the notion that you really shouldn't call something child porn unless it involves grown-ups physically abusing little kids.
Any broader definition is an invitation to rampant irrationality. Just like we have now.
How about a cartoon of Muhammad having sex with his 9 year old bride?
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The big question is: does pornography heighten sexual urges (like an addiction), or satisfy them? If the former, then virtual child pornography might incite a pedophile into seeking out real child pornography or even lead them into child molestation. If the latter, then virtual child pornography can prevent them from taking more drastic action. Someone really needs to do some research and find the answer to this question before we make laws about cartoon child pornography. It's fairly likely that the answer to the question varies from person to person (just as some people can drink casually while others become alcoholics), in which case it would be nice to have some sort of test to see what kind of person any particular pedophile is, for their own benefit.
No one is responsible for whom or what they're sexually attracted to, and that includes pedophiles, necrophiliacs, bestiality fans, etc; they are responsible for controlling those urges when they are inappropriate. That said, people with socially unacceptable fetishes should be treated with sympathy and provided the support they need to control and channel their sexual energy. Painting them as Satanspawn only isolates them, forcing them to find their own ways to cope. If there's a way for people to satisfy their urges without exploiting other people, than that is to everyone's benefit. We should all be lauding the rise of virtual pornography, not condemning it.
No flamebait intended (some hyperbole ahead), but parents are idiots when it comes to their kids, and often kids in general. They will abandon the pursuits and benefits of a free society to "protect the children" at all costs. The problem is nowadays they don't actually know what the real threat is and so they are ripe to be manipulated.
There is nothing wrong with the protective emotion in that nature has selected people with this tendency to survive, as this emotional/instinctive reaction was probably exactly what was needed to actually "protect the children" from an attacking tribe. It's the emotion that causes you to cast aside your fears when something real is attacking but it's now being used to fuel fear of an unknown enemy.
We need to balance our emotional response. Children need protection from real threats. Looking at the child abuse stats from 2006 (most recent on the USDHHS site) only 10% of all child abusers are non-parental (and half of that 10% are relatives, with almost half of what's left after that foster parents/relatives).
If we stick with sexual abuse statistics, parents and relatives still account for 60% of that, with friends, neighbors, daycare providers and other professionals making up 10%. Under 25% of sexual abuse is "other", which I guess is your classic "child predator" that we hear about on the news. I was always lead to believe that parents never hurt their children and we really need to pass laws against the people "out there" who are stalking our kids. The enemy is in the home already.
A purely emotional reaction ignores these facts and might put resources in the wrong places than it would really be needed to help more of the kids getting abused.
Uuuh....You DO realize that a jury is 12 people too stupid to get out of jury duty, right? You may think I'm kidding, but here is a true story that should make you think-My mom served on a jury a few years back. When the trial was over she came in white faced and said to me "Don't you EVER have a jury trial if you get in trouble,you hear me? NOT EVER!" When I asked her what was wrong she explained what happened.
A guy was accused of burning down his business. According to her there was NO evidence that it was arson, even the fire investigator admitted on the stand they weren't really sure what caused the fire. The defense pointed out it would have been insane to burn it, as he didn't have enough insurance to cover his losses and now would most likely lose his home as well. Easy Not Guilty,right? WRONG! My mom ended up having to hang the jury at 11-1 because the jury said, and I quote, "He is Italian and they burn down businesses because they are in the mob and he looks shifty anyway." So this guy would have been in jail for years not because of any actual evidence, but because he looked shifty and he is Italian and mobsters burn down buildings.
So don't bet you life on a jury having a brain ESPECIALLY on a hot button issue like kiddy pr0n. I would love to see the conviction rate because I'm willing to bet that just by having the words kiddy pr0n in the charge you are probably guaranteed a 95% conviction rate. And I don't know about you but I don't want my freedom decided by somebody guessing how old some CARTOON character is. I mean seriously, we are now going to have to look at everything from stick figures to mythological characters and decide whether some judge would view them as "jailbait" or "looking lolita". Does anybody else see the problem? How old is a vampire? Are they the age when they turned or the centuries that they have lived? This is just beyond insanity. I am all for protecting KIDS, but these are not kids. They are splotches of ink and paint on a page. This is just nuts.
ACs don't waste your time replying, your posts are never seen by me.
You're proceeding as if child porn were illegal for the reason that it depicts something illegal. But that's not the case, and no legislator or judge has ever suggested that. It is illegal because of its deleterious effects on individuals and on society, combined with its lack of any conceivable beneficial value. Sexual fantasy is an extremely powerful motivator. I don't think it makes any sense to allow materials that serve no purpose other than bolstering adults' fantasies of having sex with children.
I remember reading about a case like this in Canada. Guy picked up girl at the bar when the drinking age was still 21. Went back to her place for sex. Got caught by the parents and charged.
The judge was very apologetic as he sentenced the poor guy to 5 years.
Afterwards the law was actually changed so that honestly believing that someone was of age was a valid defense for statuary rape.
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Rather the point I made up above -- if fantasy depiction of one crime is illegal, and is to be penalised as if it's the real thing -- then ALL fantasy depictions of crimes must, in fairness, be equally penalised as if they are real.
But this is a special case. Taking a picture of a murder is not itself illegal. However, taking a picture of under-age sex is illegal. So the picture is illegal. It is not that someone made a depiction of an illegal act, but that they made an immitation of an illegal item. The item of child porn itself is a crime. The reason this is to confusing is because child porn has so many thousands of laws against it. There are the rape laws, the statutory rape laws, the child abuse laws, the transporation of minors laws, the traveling across state lines to have sex with a minor laws, the laws against recording such acts, and those are duplicated in every state, the federal level, and possibly on some local city/county levels. So what is "child porn" in this case? It's a photograph of an under-age person and someone else (whether under age or an adult is irrelevant). Child porn can be child porn even if both parties are not in violation of any other law (see the cases of the teens that took pictures of themselves and sent them willingly to others of their age who they were legally sexually active with and were charged with child porn). So, the focus here is not on children, their wellbeing or anything else, it's about a photograph. That photo is illegal. Holding it is illegal. Making it is illegal.
And the case here is whether creation of a simulation that resembles something that could otherwise have been illegal should also be illegal. Remember, child porn isn't about exploitation of children. Taking the picture of two 17-year olds having perfectly legal sex is child porn. Taking a picture of yourself at 17 is child porn, and most laws are written that you could go to jail for taking your own picture. Child porn is about thought police telling people they shouldn't fantasize about under-age people. Supposedly it started out as protection for children by restricting the profit motive for creating child porn, but if that were the actual case, then simulated child porn would be encouraged as a replacement, not discouraged. That leaves thought police as the only other possible explanation of why child porn is illegal and why it should be applied here. But, of course, if you talk like I just did, people attack you as a supporter of child abuse, rather than a person who hates child abuse and wants it stopped, but only with sensible laws that make child abuse illegal, and catch and punish those involved in it.
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