|
| |
US Child Pornography Laws Post- Free Speech Coalition
The Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today Act of 2003
(PROTECT Act 2003)
Child pornography laws vary considerably from country to country. Some countries
only criminalize production, while permitting possession. Others, like the
United States criminalize
production, distribution and possession.
“Possession” in the
United States includes printing,
downloading and saving any images, as well as forwarding those images. Caching,
merely as the mechanism used to allow your computer to show a website image is
not generally considered “possession” in the United States, so visiting a
webpage with child pornography images, without more, is not technically illegal
in the U.S. In some countries, most notably Canada and the UK, however,
searching for and viewing child pornography is illegal.
As with all speech and content, in
the U.S. our First Amendment
applies and for any restriction of speech to be upheld, it must pass
constitutional scrutiny. In the United States, sexually explicit images and
media (called “pornography” for the purposes of this article) can only be
criminalized if they fall within the legal definition of “obscenity.”
“Obscenity” is a legal definition developed over decades. And while there are
several other tests in determining whether an image or media is “obscene” one
very important condition is that it not (when taken as a whole) have any
“serious literary, artistic, political or scientific value.”
But over the years, a special legal
category of sexually explicit and provocative images was developed under the law
– child pornography. It escaped the “value” test, which made it much easier to
identify and criminalize. Child pornography had two underlying reasons for its
special treatment. The weaker of these conditions involved the provocative
nature of the images. Studies and common sense revealed that child pornography
might encourage child sexual molestation. But this alone, given the controversy
surrounding whether content could be criminalized on the speculative basis that
it might cause someone to commit a crime, was insufficient to suppress otherwise
protected speech.
The stronger of the two reasons
depended on there being a real child used in the creation of the images. Because
minors are molested and exploited in the production of child pornography,
special rules were developed. Under the legal standards applying to child
pornography prior to April 2002 (when the U.S. Supreme Court struck down certain
provisions of the law), if the images appeared to be of a child or were
depicting a child they could be criminalized no matter how much “serious
literary, artistic, political or scientific value” otherwise existed in the
work. If children were used or depicted, or appeared to be used or depicted, it
was criminal. Period.
As computer imaging improved over
the years, 3-D and virtual imaging could alter images of adults to appear to be
children or create children entirely from computer code. And innocent actual
children could be artificially depicted as being engaged in sexual activity. The
only problem was that, since real children may not have been exploited or
molested in the creation of these kinds of images of child pornography, the
stronger of the legal arguments for different treatment of child pornography
from regular pornography no longer existed. And the child pornography laws on
the books since 1996 were challenged. Over the years, the lower courts took
differing views on the constitutionality of the laws as they relate to
computer-generated non-real child images. But the case was finally settled 3
years ago when the U.S. Supreme Court ruled on the question.
On April 16, 2002, in Ashcroft v.
Free Speech Coalition, the U.S. Supreme Court struck down certain sections of
the Child Pornography Prevention Act of 1996 (CPPA) relating to “virtual” child
pornography holding that these sections were "overbroad and unconstitutional."
The case was brought by the pornography industry trade association (The Free
Speech Coalition) fearing that the law, as written, could be interpreted to
criminalize the production of films such as “Lolita” and other more sexually
graphic (non-obscene) images and media where adult actors were portrayed as
minors. The court was troubled that the CPPA prohibited speech might have
"serious literary, artistic, political, or scientific value." The Court
emphasized that the "CPPA prohibit[ed] speech that records no crime and creates
no victims by its production." And, as many suspected, the Court held that
otherwise-protected speech cannot be criminalized merely on the basis that it
might be used for or encourage the committing of criminal acts in the future.
Congress, in trying to replace the
statutory provisions struck down by the Court, struggled to address its legal
concerns. They were required to precisely define the harm resulting from virtual
child pornography when no actual child is used to create the sexually explicit
image. The Government had unsuccessfully argued that virtual child pornography
fuels the demand for real child pornography and that accidentally encountering
virtual child pornography would have a devastating effecting on the viewers.
These arguments were flatly rejected in the majority decision, holding that "[v]irtual
child pornography is not 'intrinsically related' to the sexual abuse of
children… [T]he causal link [between virtual child pornography images and actual
instances of child abuse] is contingent and indirect." Without such a causal
link between speech and its resulting harm, the Court said, the government may
not suppress speech simply because it may "encourage" pedophiles and molesters
to abuse children.
But as difficult a task as it was,
Congress succeeded, and on
April 30, 2003, President George W. Bush signed into law the Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today Act of 2003
(PROTECT Act 2003). I was present in the Rose Garden that day for the signing
and applauded the closing of an enormous gap in the laws protecting children
from sexual exploitation.
Both before and after the
Free Speech Coalition decision, there was no real debate over the criminalizing
of any image or media where "the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct." In addition, the
decision left in tact the law prohibiting "visual depiction[s] [that] ha[ve]
been created, adapted, or modified to appear that an identifiable minor is
engaging in sexually explicit conduct." (Criminalizing computerized "morphing"
of images of actual children into manufactured sexually explicit depictions of
that child.)
The challenged provisions had been
added in The Child Pornography Prevention Act of 1996 to address the growing
problem of virtual child pornography. They specifically prohibited visual
depictions of sexually explicit conduct where "such visual depiction is, or
appears to be, of a minor engaging in sexually explicit conduct" and also
prohibited anyone from advertising, promoting, presenting, describing, or
distributing visual depictions of minors engaging in sexually explicit conduct
in a manner that "conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexually explicit conduct."
When they were added, Congress
noted that new technologies "make it possible to produce by electronic,
mechanical, or other means, visual depictions of what appear to be children
engaging in sexually explicit conduct that are virtually indistinguishable to
the unsuspecting viewer from unretouched photographic images of actual children
engaging in sexually explicit conduct." The Senate emphasized that computers
could now alter sexually explicit images so that it becomes impossible to detect
if the images were created using actual children.
The PROTECT Act 2003 addresses the
Court’s concerns about the "appears to be" language and substituted:
"[C]hild pornography" means any visual depiction, including any photograph,
film, video, picture, or computer, or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other means, of sexually
explicit conduct, where…such visual depiction is a digital image, computer
image, or computer-generated image that is, or is indistinguishable from, that
of a minor engaging in sexually explicit conduct[.]
In
addition, the PROTECT Act 2003 defines "sexually explicit conduct" for the
purposes of the new amendments: "[S]exually explicit conduct" means --
(i)
graphic sexual intercourse . . . whether between persons of the same or opposite
sex, or lascivious simulated sexual intercourse where the genitals, breast, or
pubic area of any person is exhibited;
(ii)
graphic or lascivious simulated;
(I)
bestiality;
(II)
masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area
of any person[.]
It also added definitions of
“Graphic” and “Indistinguishable”:
"[G]raphic," when used with respect
to a depiction of sexually explicit conduct, means that a viewer can observe any
part of the genitals or pubic area of any depicted person or animal during any
part of the time that the sexually explicit conduct is being depicted; . . .”
”[I]ndistinguishable"
. . . means virtually indistinguishable, in that the depiction is such that an
ordinary person viewing the depiction would conclude that the depiction is of an
actual minor engaged in sexually explicit conduct. This definition does not
apply to depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults.”
The pandering sections of the law
were amended to add:
“[Any person who] knowingly…advertises, promotes, presents, distributes, or
solicits through the mails, or in interstate or foreign commerce by any means,
including by computer, any material or purported material in a manner that
reflects the belief, or that is intended to cause another to believe, that the
material or purported material is, or contains-- an obscene visual depiction of
a minor engaging in sexually explicit conduct; or a visual depiction of an
actual minor engaging in sexually explicit conduct.”
Some commentaries question the
constitutionality of this pandering section, but to date it remains good law.
Congress also added affirmative
defenses (which is when the defendant must assert the defense and bear the
burden of proof on such defense). The defendant can escape conviction if he is
able to prove that “the alleged child pornography was produced using an
actual person or persons engaging in sexually explicit conduct; and
[emphasis added] each such person was an adult at the time the material was
produced; or [emphasis added] the alleged child pornography was not
produced using any actual minor or minors [.]”
|
Parry
Aftab, Esq., 
Marvel and
all character names and the distinctive likenesses thereof are trademarks of
Marvel Characters, Inc., and are used with permission. TM & © 2004 Marvel
Characters, Inc. All rights reserved. “Super Heroes” is a Co-owned registered
Trademark.