The Criminalization and Censoring of Ideas “Acted Out” in Virtual Spaces

Gabrielle Russell, in her article, Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, adopts a view on the censoring of “child pornography,” and all that it entails, that is difficult with which to disagree.  Although many people do not stand up for the rights of pedophiles who enjoy looking at images of children engaged in sexual acts, if the government can censor child pornography to the extent of prosecuting individuals for engaging in “virtual ageplay,” what will be next?  If an individual participates in virtual activity with another adult who is actually an adult, but whose avatar looks like a child, where is the harm? How can such “consequence-free experimentation” be criminal?

The Miller Standard and Child Pornography Laws:

Obscenity laws fulfill a well-meant purpose, however, they are overbroad and have the potential of being used haphazardly to prosecute a myriad of behaviors. Virtual ageplay seems to be vulnerable to the carved out exception under the First Amendment for obscenity because as Russell states “obscenity is unique because it is excluded from First Amendment protection despite the lack of a definite link between it and any unlawful conduct or specific harm.”

Child pornography laws are distinct from obscenity laws although the drafters of child pornography laws have conveniently seemed to pick and choose what they like from the obscenity laws. If the Miller standard has been relaxed for situations related to child pornography, why would the same standard apply to virtual ageplay, a situation that does not involve any actual children?  How can virtual ageplay be considered child pornography but only if the images created lack “serious literary, artistic, political or scientific values”?  How is this determination made? Who gets to be the judge of the values contained in an image?  This is too much of a slippery slope. If a test is used to determine if an image looks too much like a real child, where will the line be drawn? The PROTECT Act does not even adopt the entire Miller standard, merely a part of it. Additionally, sexually explicit digital or computer-generated images “indistinguishable” from a minor engaged in such acts are included under the PROTECT Act.  What is the standard for determining the distinguishing characteristics between an “identifiable minor” and a computer generated minor?  The tests are far too subjective.

Russell demonstrates that child pornography laws do not technically make virtual sex with a virtual child, that is really a consenting adult, a crime.  It follows, however, that such behavior is, in turn, deemed criminal because the images that are generated are criminal, therefore making the act a crime because it generates such “obscene” images. Virtual ageplay cannot technically occur without the images so virtual ageplay is a crime.

An affirmative defense is available under 18 U.S.C. § 2252 A (c) that the “child pornography” was not produced using any actual minor or minors.  Though having this affirmative defense is helpful if one were to be prosecuting for virtual ageplay, the defense should not have to be asserted at all in the context of private virtual ageplay between two consenting adults because individuals should not be prosecuted for such behavior to begin with.

Lawrence v. Texas:

Russell asserts that the sexual activity issues in Lawrence v. Texas are essentially no different than the sexual activity involved in virtual ageplay.  Government interference is unwarranted in legal, sexual behavior between two consenting adults.  Although in virtual ageplay an image is generated by the activity and can potentially be saved and distributed, the fundamental issue does not change.  If two consenting homosexual adults were to memorialize their actions in a photograph and keep it private, it would not be considered a crime.  If two consenting adults, whatever their sexual orientation, engage in virtual ageplay, privately, their behavior may become subject to prosecution.  Where is the sense in that?

Conclusion:

If the main purpose of child pornography laws has been to “protect a particular class of victims,” namely, children, if no children are harmed, why would such actions be subject to penalty?  If the behavior is private and images are generated privately and not distributed, the behavior should be legal.  Technology has provided us with so many fantastic opportunities and while it should be regulated, suppression of ideas and the criminalization of “consequence-free experimentation” should not be tolerated.

The same line of reasoning goes to the behavior of “sexting.”  When a teenager sends a naked picture of himself or herself to his or her boyfriend or girlfriend, the teenager runs the risk of being prosecuted under child pornography laws along with adult pedophiles, not to mention being labeled as a sex offender for the rest of his or her life. If child pornography laws are meant to protect children, why are we prosecuting them? Child pornography laws are being used as a catch-all to punish people for doing things labeled as obscene, immoral or just distasteful.

Child pornography laws are absolutely necessary in our world, however, as technology becomes more advanced, our world is changing. The law should follow suit.

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~ by mcmcguinness on November 2, 2009.

8 Responses to “The Criminalization and Censoring of Ideas “Acted Out” in Virtual Spaces”

  1. I agree with you in that a law should continue to change to uphold the policy for which it was created, so that it continues to fulfill its role while not becoming a burden. If it was created to protect children, then it should do so. I suppose the argument might be that such images can create moral decay, thus leading to harm to children. If such images exist, even if not real, they can affect the minds of people who view them. I understand that my argument leads to a slippery slope. Anything can lead to decayed morals, but this scenario can impact a child’s view of reality.

  2. I guess I’m undecided on this issue. Russell compares the PROTECT Act to old, obviously flawed laws discriminating against homosexuals. I do think that part of the reason the Supreme Court has upheld discriminatory laws in the past is that the unenlightened and unsophisticated moral climate at the time favored discrimination. And yes, the moral climate today favors discrimination against child pornography, but I have trouble believing that the morality which disfavors pedophilia is unenlightened. I think we’re already enlightened when it comes to pedophilia; that is, we are right to object to it, and there will never come a time when we realize we were wrong to object to it. And that’s because pedophilia, unlike homosexuality, is not between consenting adults and never will be. So maybe there’s a good reason to use a heavy hand to prevent it, a reason that never existed with respect to other kinds of past discrimination that we have rightfully outlawed by now.

  3. I would have to agree with dguillaume22’s comment here. It’s seems like we are getting into semantics by distinguishing real images from virtual images in this instance. True, real images involve an additional level of child abuse because real children were used to make them. But both real and virtual images appeal to people who entertain sexual thoughts about children. Of course, I am not a psychologist, but it seems that such individuals are never cured (if that is the right term to use) and are often repeat offenders of child sexual abuse. So, perhaps the images, both virtual and real, only feed and encourage such behavior. However, I do agree with the author on the sexting issue – I think that teenager relationships involve a completely different level of culpability and behavior that should never be pooled in the same class with pedophilia.

  4. The regulation of specific images should be treated very cautiously. For reasons I generally disagree with, speech that is deemed obscene has been denied protection under the first amendment. That said, if any words or images can be regulated under obscenity laws, why can’t images of child pornography be? If the image is what is actually being regulated, then it shouldn’t matter if that image is the creation of pure imagination or based on an actual child. However, once the law purports to protect children, only those images that involve actual children should be regulated. Images and virtual age-play where no real children are ever involved could create an outlet for those desires without harming children, and as such, should not be criminalized under child pornography laws.

  5. I agree that child pornography laws were enacted to protect children. This is an extremely divisive issue that is littered with constitutional law issues such as freedom of speech and expression. However, “virtual age play” should not be a protected form of online expression for the same reason our laws do not allow someone to possess child pornography. The reason that virtual age play should not be protected is that it could lead to a hands-on offense. This logic follows much in the same way as does gateway drugs. At first, the user may simply use marijuana, but eventually, that drug may lead to something stronger, and so on. With an attempt to not generalize, it is apparent to me that people who engage in virtual age play are reaping some personal satisfaction. At some point, this personal satisfaction may no longer be satisfied in the virtual world, and the person will turn elsewhere to maintain the previous level of satisfaction. This is where the problem of children being in harm’s way comes into play. Children are vulnerable in real life and online, and this is the concern being addressed with pieces of legislation that prevent virtual age play.

  6. Child pornography is definitely a volatile issue. I think “age-play” is particularly interesting because of its digital rendering: something that would put it in the same category as drawn images of child pornography. I found this article about drawn images (http://www.msnbc.msn.com/id/28319199/) and wholeheartedly agree that courts seem to be dealing out harsh sentences not because a child has been harmed, but because they want to punish specific acts for morality purposes. Interestingly enough the drawn images the defendant in question received were from Japan, and Japan has a large market for drawn images of child pornography that (for the time being) are legal. I believe there has been a report from the Japan Bar Association on the lack of connection between pornographic images of children and actual sexual exploitation of minors, but I feel like a comprehensive study in the United States would be well warranted in adding more objective data to the debate.

  7. The understood purpose of child pornography laws is to prevent the victimization of children. When combating child pornography enters the realm of prosecuting people that have not directly nor indirectly caused any harm to any child, the law goes way too far.

    The use of obscenity laws to prosecute a victimless behavior is a gross misuse of the law in my opinion. What we have here is what I would consider a behavior that might seem “different”, but certainly not obscene or immoral. Criminalizing this behavior is tantamount to the outlawing of S&M websites, foot fetish websites, and animals having sex on the discovery channel. While it seems weird to some that there are people that enjoy viewing such things, we as a people should not be so quick to outlaw all victimless behaviors that do not conform to our world views.

    I have seen the argument put forward that these kinds of behaviors will later lead to these people actually victimizing children. Such arguments are horribly misguided, and they are analogous to arguments stating that gay-marriage will soon lead to marriage with animals, violent video games create serial killers, and that flight simulators create terrorists. There is no reason to think there will be any harm coming from two consenting adults acting out sexual acts with avatars that appear to be children. The actual reasons for going after people that participate in these behaviors are confusing to me, and I think that the actual reason cannot be any more complicated than “those people are weirdos”.

  8. The main purpose of the Child Pornography statutes is to protect minors, and on the surface it would appear that allowing virtual acts to be performed on virtual representations of minors presents no danger to real life minors. There’s no actual minor being affected by the virtual act…on the surface. I’d be curious to explore research done as to whether taking part in these acts with a virtual minor truly does serve as a gateway to the commission of actual offenses. Those ‘actual offenses’ encompass not only physical acts on a minor, but the purchase and dissemination of Child Pornography. Economics makes it simple enough to understand why increasing the demand for Child Pornography will lead to an increase in criminal acts committed upon minors.

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