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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.'"
The act defines a "child" as a "person":
(2) the term âchildâ(TM) means a person who has not attained
the age of 18 years and isâ"
ââ(A) under the perpetratorâ(TM)s care or control; or
ââ(B) at least six years younger than the perpetrator;
Plus as some cartoons are over the age over 18 like the Simpsons for example. They're 20 years old as a point of fact.
does it become illegal? Two stick figure drawings with a caption "10 year olds" would be considered illegal if you didn't pencil in some shorts? Madness.
In Australia, a guy got done for having cartoon porn of the Simpsons.
http://www.theage.com.au/national/simpsons-cartoon-ripoff-is-child-porn-judge-20081208-6tmk.html
Yet another reason for me to leave this backward backwater.
If it's fantasy, you can say the depiction is as old as you want. It's not real, rules of reality don't apply, at all.
"we've got trenchcoats and bad attitudes" - John Constantine, HellBlazer
So a disclaimer at the bottom that all characters pictured are based off real adults who are merely very young looking would make it safe?
Ok, so if I draw a picture of a person having sex with a sentient machine (non-human like, lets say a 1m cube with a penis sized hole in one side) and that machine is only 10 years old according to the crappy fan-fic I write about it, does that make it child pornography?
Oh wait, I know how to use up more of the courts time, where were those rule 34 pictures of ALF and the simpsons I had laying around...
...
I was under the impression that the reason for child pornography laws was to protect children from exploitation. It may not be possible to prosecute the people abusing children if they are in a foreign country, but you can help to reduce their market by prosecuting the people who buy their products. How, exactly, does society benefit from prosecuting artists who draw cartoons, however tasteless? The money would be better spent going after mimes.
I am TheRaven on Soylent News
So, who exactly is the victim in this case? If none is required then logically everybody involved in production of any work of (questionable) arts depicting killing, assault, robbery or any other crime should be convicted. Too bad over 80% or more of Hollywood and TV production would become illegal.
TFA states that he was also convicted for obscene e-mails describing sex acts with children. Anybody else find this even more worrying than the pictures?
I guess this means you can commit a felony by posting a few choice lines on slashdot?
(Posting anon since I don't want to be associated with this subject, however remotely)
This sig is just as redundant as the rest of this posting
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.
When we start trying to apply the laws of the
land to the realm of make believe our justice
system will have officially lost it's mind. . .
Next we'll be appointing a Cartoon Czar. . .
(Posting anon since I don't want to be associated with this subject, however remotely)
Now THAT'S funny.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
I'm reporting this thread immediately to the DOJ. You are all clearly trying to find loopholes around this important legislation that is vital to protect our cartoons and adults dressed as children.
Rule 34 on the Supreme Court.
...thinking about having sex with Children. And then writing about thinking about having sex with Children. Ooops. I'm in trouble.
Lucky for Nabokov he's dead, or he'd be jailed for writing Lolita...
For repeated and multiple murder, for torture, both physical and psychological, for cannibalism and for a few other things that I'd have to consult my library for and reread some of his work.
And while we're at it, I also ask to have the governor of California arrested for ... well, pretty much the same crimes.
No, they didn't commit them. They only depicted and acted them. But appearantly that difference is no longer important.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
was that its manufacture directly hurt children (the ones portrayed in it, not some abstract concept). While distasteful, virtual "child" porn, no matter how realistic, seems to be a freedom of speech which is protected under the Constitution. Otherwise, you are creating a thoughtcrime.
Also is the matter of arguing "age". Some are undeniably children, but we live in a country where 18 years old prosecuted for statutory rape of 16 years old isn't unheard of in our recent histroy. Do we really want to relegate to the prosecutors this power?
Also consider the common cartoon/anime characteristic of having an adult in mind in an essentially child like body. What then?
In summary:
-lack of victim
-Freedom of Speech, if only popular speech were to be protected, we wouln't need 1st amendment
-age ambiguities
So if pictures can depict real things...
Does this mean we can just pay off any fines by drawing large sums of money (or just sacks with $$'s on them, would be easier).
Finally, we'll be able to pay all of those software people and musicians the 'lost' money they are owed by those pirates!
End the economic crisis.
End world hunger.
It's all in our reach!!
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.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
This has already happened, article here. Basically the dude ordered some manga from Japan, and the postal inspector had a look at it when it arrived in the US. When the guy went to pick up his delivery, police followed him home, seized his comics and charged him with possession of child porn.
The serious problem with any witch-hunt - we'll take paedophilia as an example, because it's the current one - is that banning speech about an issue prevents rational discussion of that issue.
When Charles Dickens was concerned about the condition of children in Victorian London, he wrote novels about it. When Robert Burns wanted to express his opposition to slavery, he wrote poems about it. The novels and poems reached a far wider audience and ultimately affected political change far more effectively than dry factual accounts.
I'm not arguing that paedophilia is acceptable. It's clearly an abuse of power for adults to prey on non adults. But the boundaries of that condition do have to be explored: why is the age of consent for heterosexual sex in Estonia, Hungary, Italy, Israel and parts of Germany 14, in Denmark, Iceland, France and Greece 15, in Finland and most of the United Kingdom 16, in Northern Ireland 17? Why, in the United States, is sex legal at the age of 14 in many conservative mid-west states, but illegal until 18 in liberal California?
There's also a concept in many parts of the world that sex between two people of roughly the same age is allowable able at a considerably younger age than sex between a young person and a significantly older person - and that seems to me entirely reasonable.
But so long as there is a witch-hunt in progress we can't have rational discourse about these things. We certainly can't use fiction to explore the issues. Could Nabokov's Lolita even be published today? This is in the end a civil liberties argument - not because children don't need protecting, of course children need protecting. But so does freedom of speech.
I'm old enough to remember when discussions on Slashdot were well informed.
If you're an oldster or a lawyer of the sort who can quote Dost, this may be sad but it isn't surprising.
For you young 'uns out there, listen up for a history lesson.
For a very long time in the U.S., child porn was legal. Admittedly, this point can be argued. Some say it was always illegal because it was always obscene. However, it wasn't prosecuted because the possibility existed that it could be produced in a way that was not obscene. Whether it was technically legal or illegal isn't important. The practical matter is that it wasn't prosecuted, wasn't specifically prohibited, and was easily available to anyone who wanted to send off a money order or walk into a big city adult book store.
IN the mid 1970s, the first laws were passed that said it was illegal. First amendment concerns surfaced but those were beaten back with the argument that producing it required that a crime be committed by an adult against a child. You couldn't produce child porn without actually raping a child. By the early 1980s, it was pretty much illegal everywhere in the U.S., though simple possession didn't get outlawed everywhere, uniformly until then. Even now, there have been major nations that didn't outlaw simple possession until recently. Simple possession didn't become illegal in Brazil, for example, until this year.
The U.S., though, was a different case. By the mid to late 1980s, the stuff had been mostly stamped out. In fact, immediately before the rise of the ubiquitous home internet connection, nearly all child porn sold in the U.S. was actually sold by the United States Postal Service as a part of sting operations.
In some of the early court decisions, the first amendment concerns were dismissed with the explicit allowance that depictions of underage sex for artistic purposes could continue unhindered as long as the actors involved were of age. At the time, the example often cited was "The Last Picture Show."
Since then, things have gradually changed from the sensible to the insane. The changes have been far too many and too complex to outline here and each change has been rather gradual. As the law now stands (IANAL, etc.) literally any picture of a child can be considered porn if a prosecutor can convince a jury that it was produced or possessed for prurient purposes. Nudity is not required. Sexual activity is not required. Prosecutors are willing to proceed on the flimsiest basis when motivated by stupidity or politics, sometimes successfully (the Pierson case, as a lead-in to prosecuting WebeWeb), sometimes unsuccessfully (as in the attempt in Oklahoma to criminalize the highly regarded movie "The Tin Drum.")
I'm not a big fan of Paul Little (the few minutes I've spent with him on several occasions convinced me that he's an ultimately harmless boor) but he should not be looking at jail time. Yet in this (U.S.) society, all rationality has flown right out the window where this subject is concerned.
Here are my two main points (and, incidentally, this is why I know so much about the subject):
1. If you value civil liberties, you need to know about child porn. It's the boogey man, just like "commies" back in the 1950s, that is used as an excuse to build freedom-destroying infrastructure into our laws and communications systems.
2. The original definition of child porn that justified outlawing it included one central tenet - that producing it requires adults to rape children. Nowadays, a large (probably the overwhelming majority) of child porn is produced by children for the consumption of children and there are no adults involved at any stage. If you have a 12-year-old with a web cam in their room or a digital camera built into their cell phone, there is a much-larger-than-you'd-like-to-admit possibility that you're providing a home for a child porn production studio.
Combine those two things and we're looking at a situation where child porn can be used to criminalize a huge portion of the populace. Forgive me for drawing parallels where
It shouldn't matter AT ALL the age depicted. The (Just) reason that child pornography is illegal is to stop the harming of children through its production. Adults have the right and ability to consent to be part of such productions as part of their own free speech rights. Children, almost by definition, do not, and thus their rights are violated when they are used in child pornography.
First in order to be child pornography a child, a real one has to be involved. Cartoon characters are not children and they have no rights to violate. Hand drawn pornography can be considered child pornography if and only if the drawings were done from an actual child model.
Secondly, though this doesn't apply in most cases, it has to be pornographic. Pictures of baby's first bath and similar don't count. Generally there is(and rightly so) less tolerance for what is and is not pornography when children are involved.
The real impetus behind child porn laws that go against those who merely possess or re-distribute the material and do not produce it or harbor those that do, especially once written, drawn, and cartoon porn is made illegal where a child was never involved at all(though if someone is making a lot of written porn they might not be up for jail but a mandatory talk with a psychologist might be in order), is generally to protect those persons' who are pushing for the law sensibilities. Just like segregation protected those same sensibilities by keeping the dark people out of sight, and such laws in the end are only a little less unjust, mainly due to fewer peoples' rights being violated on a generally smaller scale.
I'm now declaring that every child character in any cartoon series is actually an adult with a rare disease that keeps them in a child state. They're all over 18.
PROBLEM SOLVED.
It's a bad summary.
The opinion makes it clear that the child pornography charges were related to the actual child porn he received, while his convictions related to the anime and emails were obscenity convictions. This is an important distinction.
In Miller v. California, the United States Supreme Court held that the First Amendment did not protect obscene speech, and that such speech could be banned by the government. However, the test for whether speech is obscene is so broad that very little pornography is subject to regulation. According to Wikipedia (since I'm too lazy to look it up on Findlaw), the three prongs of the test are:
* Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).
If each if these prongs is met, then the work is obscene and may be banned.
In contrast, in Ferber v. New York, the Supreme Court held that child pornography is never protected by the First Amendment, regardless of whether it is obscene. The rationale being that the government has a compelling interest in preventing the sexual exploitation of children, and that by its nature child pornography causes injury to the children involved in its production.
So, in brief: child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene. Whorely was convicted under an obscenity statute, rather than a child pornography statute.
--AC
Witch Hunt.
Pedophilia and child pornography are morally reprehensible to most people, not to mention damaging to those exploited in its production. It's also worth pointing out that COPA and PROTECT are two prime examples of how our system of government fails to do what it set out to achieve.
COPA basically stated (among other things) that your first amendment right to free speech was null and void when the content of that speech was fictional child pornography. The supreme court ruled COPA unconstitutional, and rightly so, due to the fact that COPA very specifically abridged free speech; something the first amendment very specifically states Congress does not have the power to do.
Due to the fact that Congress's fast one wasn't able to slip by the Supreme Court (whose job is to filter out this bullshit), they changed a couple of words and relabeled COPA as the PROTECT act. PROTECT, like its predecessor, also abridges free speech by again making fictional work, which is deemed morally reprehensible by the majority of voters who reelected the folks who pushed the bill through----er, wait a minute...
This is the most prime example I have borne witness to of flagrant abuse of power by the Congress in my life:
1. Congress passes law.
2. Supreme court says "wait just a fuckin' minute"
3. Congress changes wording on law, renames and repasses it, while supreme court bickers over previous law.
4. ????
5. Congressman Asshole wins reelection for being "Tough on Crime." (also known in politics as "Profit")
As long as anything is morally reprehensible enough, Congress can throw the bill of rights out the window to enforce their agenda while the flak takes years to tear its way through the judicial system only to finally be struck down by one court or another.
Just goes to show that politics really can be a system that clogs down on its own bullshit as long as there's enough of a popular opinion in the first place to ramrod the shit past its initial threshold.
Laws against child pornography are an easy route to power
It's also difficult to oppose a law against child pornography without sounding like you're endorsing child abuse, especially when you're a public figure, so these measures usually are passed without much opposition.
Since God is the attributed author of the Bible, I think we should prosecute god!
Since Abraham strapped his son to an altar and was in the process of performing ritual sacrifice on him. Or that naked Moses, that's offensive. God only knows what those three "wise" men really wanted with a swaddling clad Jesus and his virgin (and underage I might add) mother.
If we're going to get the religious right nutters involved, we might as well get the completely involved!
I wonder where this idiocy will end. It's probably being pushed by the same people who want to make it a crime to burn the US flag. Ask them if it's OK to burn a picture of a US flag, or something that looks like a US flag but is one or two stars short, and they start to look at you with that same lost, betrayed expression a dog gets when you pretend to throw the ball, but hide it behind your back.
These assholes are a lot more dangerous to society than the occasional pervert who gets off on drawing dirty pictures.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
They may have created the image, or they may have filtered the image in PhotoShop to remove any digital signatures from the camera that took the image. Okay, Solomon, how do we settle this one?
Uh, innocent until proven guilty?
When information is power, privacy is freedom.
It's also difficult to oppose a law against child pornography without sounding like you're endorsing child abuse,
Which, on the face of it, is retarded. Nobody who is even semi-rational is going to endorse child abuse, yet people are so easily convinced of such things when the topic comes up. Rather than consider that someone has a sophisticated opinion on the subject, too many people are all too willing to jump on the "why do you hate children?" bandwagon.
When information is power, privacy is freedom.
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.