I believe there have been a couple of cases where the "over 18" defense has been used successfully, which is why prosecutors generally don't like to pursue cases where the age of the participants in an alleged child abuse image is questionable. There was an exception in one recent Kansas case where a guy ordered two photographs of naked teenagers through Yahoo. Yahoo notified the U.S. Postal Service of possible child porn, and warned the consumer that the images he had ordered were possibly illegal. He immediately canceled the order, but the U.S. Postal Inspector instructed Yahoo to deliver the photos anyway. The guy was charged with attempted receipt of child pornography, but since the authorities could not prove that the girls in the photos were minors (as it turned out, they were over 18), they reduced the charge to obscenity, for which he received a probationary sentence. Generally, the burden is on the government to prove that an individual featured in an alleged illegal image is a minor.
In 2002, the Supreme Court effectively ruled that CGI-generated or morphed images, where no actual child is harmed, are protected under the first amendment. This was their ruling in Free Speech Coalition v Ashcroft. Which is why the Feds responded by building an immense database of known child pornography images, where they can prove the ages of the children involved in the course of prosecuting future cases.
So, yes, the law does provide for an affirmative defense if the defendant believed that he/she was obtaining images of adults posing as minors. If for example, the defendant downloaded suspicious images from a site containing an "all models are over 18" disclaimer, those images would generally be considered inadmissable. And under federal law, CGI-generated and morphed images are generally legal, but may still be subject to obscenity laws.
Obviously, child pornography is a very emotive subject, and it is one about which I feel particularly strongly. At the moment, I am working with a non-profit organization dedicated to hunting down those who use the Internet to exploit children. I am also co-authoring a book on the subject. Because this is a subject I feel so strongly about, this is likely to be an extremely long post. For that, I apologize in advance.
Our organization has worked very closely with law enforcement on several high profile cases, so it doesn't surprise me that there are so many popular misconceptions about the scale of the problem and the ability of law enforcement to deal with this crime. First of all, I think there are many misconceptions about the true nature of the child abuse images that are proliferating the web. Illegal child abuse material is so prevalent on the web that neither prosecutors nor organizations such as ours are concerned with "teen" pornography where the age of the models featured is ambiguous. The vast majority of child abuse material available on the web involves prepubescent children, and in many cases infants. Under U.S. law, a prosecutor has to convince judge and jury that the defendant not only knowingly obtained the images, but that he/she knew that the models featured in those images were under 18 (16 under many state child pornography statutes). That is an important distinction. If there is any reasonable doubt regarding the defendant's knowledge of either of these facts, it is common for prosecutors to either reduce the charges or drop them entirely in order to avoid an acquittal. This rule was cemented in 2002, when the Supreme Court struck down two portions of the Child Pornography Prevention Act as unconstitutional; namely the sections that criminalized images that "appear to" feature children. In other words, the evidentiary burden is on the government to prove that illegal images feature real children---as opposed to morphed or virtual images---and that the children were actually underage when the images were made.
From the perspective of law enforcement, they are completely outgunned and ill-equipped to deal with this scourge. According to U.S. Customs, there are more than 10,000 known websites containing images of child abuse. However, this number is difficult to quantify, given that many illegal websites change URLs every few hours or days, and many more are hidden behind layers of security designed to keep out the prying eyes of law enforcement. Anecdotal evidence provided by investigators familiar with this issue suggest that the true number of illegal websites is closer to 100,000. Of the known websites catalogued by federal authorities, more than half are based in the United States.
The frequency of media reports concerning child pornography arrests suggests that law enforcement is creating a huge dent in the "market". In reality, nothing could be further from the truth. We've all read and heard about "Operation Avalanche", the investigation that led to the arrest of Pete Townshend. Avalanche began with the 1999 investigation into a Texas-based Adult Verification Service called Landslide Productions, which provided subscriber access to a variety of adult and child porn websites. The vast majority of Landslide's profits were derived from child pornography subscriptions ($1.3 million in a single month). When authorities raided the business premises of Landslide, they discovered a subscriber list of 275,000 individuals who had used their credit cards to access illegal sites (the real number of subscribers was considerably higher, but this statistic discounts those who merely accessed legal adult pornography). This number gives you some idea of the scale of the problem, bearing in mind that internet usage is considerably more widespread now than it was in 1999. Of those subscribers, it is reported that barely 200 have been arrested in the United States, for reasons I will explain in due course.
At the time of writing, federal authorities are winding up an almost identica
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I believe there have been a couple of cases where the "over 18" defense has been used successfully, which is why prosecutors generally don't like to pursue cases where the age of the participants in an alleged child abuse image is questionable. There was an exception in one recent Kansas case where a guy ordered two photographs of naked teenagers through Yahoo. Yahoo notified the U.S. Postal Service of possible child porn, and warned the consumer that the images he had ordered were possibly illegal. He immediately canceled the order, but the U.S. Postal Inspector instructed Yahoo to deliver the photos anyway. The guy was charged with attempted receipt of child pornography, but since the authorities could not prove that the girls in the photos were minors (as it turned out, they were over 18), they reduced the charge to obscenity, for which he received a probationary sentence. Generally, the burden is on the government to prove that an individual featured in an alleged illegal image is a minor. In 2002, the Supreme Court effectively ruled that CGI-generated or morphed images, where no actual child is harmed, are protected under the first amendment. This was their ruling in Free Speech Coalition v Ashcroft. Which is why the Feds responded by building an immense database of known child pornography images, where they can prove the ages of the children involved in the course of prosecuting future cases. So, yes, the law does provide for an affirmative defense if the defendant believed that he/she was obtaining images of adults posing as minors. If for example, the defendant downloaded suspicious images from a site containing an "all models are over 18" disclaimer, those images would generally be considered inadmissable. And under federal law, CGI-generated and morphed images are generally legal, but may still be subject to obscenity laws.
Obviously, child pornography is a very emotive subject, and it is one about which I feel particularly strongly. At the moment, I am working with a non-profit organization dedicated to hunting down those who use the Internet to exploit children. I am also co-authoring a book on the subject. Because this is a subject I feel so strongly about, this is likely to be an extremely long post. For that, I apologize in advance.
Our organization has worked very closely with law enforcement on several high profile cases, so it doesn't surprise me that there are so many popular misconceptions about the scale of the problem and the ability of law enforcement to deal with this crime. First of all, I think there are many misconceptions about the true nature of the child abuse images that are proliferating the web. Illegal child abuse material is so prevalent on the web that neither prosecutors nor organizations such as ours are concerned with "teen" pornography where the age of the models featured is ambiguous. The vast majority of child abuse material available on the web involves prepubescent children, and in many cases infants. Under U.S. law, a prosecutor has to convince judge and jury that the defendant not only knowingly obtained the images, but that he/she knew that the models featured in those images were under 18 (16 under many state child pornography statutes). That is an important distinction. If there is any reasonable doubt regarding the defendant's knowledge of either of these facts, it is common for prosecutors to either reduce the charges or drop them entirely in order to avoid an acquittal. This rule was cemented in 2002, when the Supreme Court struck down two portions of the Child Pornography Prevention Act as unconstitutional; namely the sections that criminalized images that "appear to" feature children. In other words, the evidentiary burden is on the government to prove that illegal images feature real children---as opposed to morphed or virtual images---and that the children were actually underage when the images were made.
From the perspective of law enforcement, they are completely outgunned and ill-equipped to deal with this scourge. According to U.S. Customs, there are more than 10,000 known websites containing images of child abuse. However, this number is difficult to quantify, given that many illegal websites change URLs every few hours or days, and many more are hidden behind layers of security designed to keep out the prying eyes of law enforcement. Anecdotal evidence provided by investigators familiar with this issue suggest that the true number of illegal websites is closer to 100,000. Of the known websites catalogued by federal authorities, more than half are based in the United States.
The frequency of media reports concerning child pornography arrests suggests that law enforcement is creating a huge dent in the "market". In reality, nothing could be further from the truth. We've all read and heard about "Operation Avalanche", the investigation that led to the arrest of Pete Townshend. Avalanche began with the 1999 investigation into a Texas-based Adult Verification Service called Landslide Productions, which provided subscriber access to a variety of adult and child porn websites. The vast majority of Landslide's profits were derived from child pornography subscriptions ($1.3 million in a single month). When authorities raided the business premises of Landslide, they discovered a subscriber list of 275,000 individuals who had used their credit cards to access illegal sites (the real number of subscribers was considerably higher, but this statistic discounts those who merely accessed legal adult pornography). This number gives you some idea of the scale of the problem, bearing in mind that internet usage is considerably more widespread now than it was in 1999. Of those subscribers, it is reported that barely 200 have been arrested in the United States, for reasons I will explain in due course.
At the time of writing, federal authorities are winding up an almost identica