VCP: B/c Am. I > Protecting our Children [2 of 8]

This blog entry should be read as part 1 of 2 intertwined discussions. This entry focuses on the creation of the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 et. seq. (1996) (current version at 18 U.S.C. § 2251 et. seq. (2010)) [hereinafter CPPA], and the corresponding legislative findings.  However, the Act has been declared unconstitutional.  I will discuss case law in part 2.  Thus, this blog entry may be seen as somewhat of a preface to the major case that one thinks of when discussing virtual child pornography (VCP).  Note that my reference to CPPA in this blog is talking about the older version, not the current version, despite use of present tense.

Surprisingly, the courts did not meddle with child pornography laws (or lack thereof) until its decision in New York v. Ferber.  458 U.S. 747, 764 (1982) (holding that the First Amendment does not protect child pornography).  For an interesting account of what happened during the time between Ferber and the passing of the CPPA, see Amy Adler, The Perverse Law of Child Pornography, 101 Colum. L. Rev. 209 (2001).

The CPPA states that “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d) . . . .”  18 U.S.C. § 2251(a).  As written, the depiction must actually have been, or the person must have reason to know that it “will be transported in interstate or foreign commerce or mailed.”  Id.  Notice that the statute does not mention the term “child pornography.”  However, looking to the definitions, one sees that “child pornography” includes

any visual depiction, including any . . . computer-generated image . . . whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where – – (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct . . . .

18 U.S.C. § 2256(8).

Therefore, child pornography is prohibited by § 2251(a) because child pornography is a visual depiction of sexually explicit conduct that involves a minor, and § 2251 prohibits creation of visual depictions of sexually explicit conduct that involves a minor.

Furthermore, § 2252A proscribes mailing child pornography, transporting in interstate commerce (including via computer) child pornography, receiving such, distributing such, reproducing it, selling it, possessing with intent to sell it, or possessing it.  Each crime requires a nexus to interstate commerce or use of the mails, but this prong will almost always be satisfied, especially since use of the internet automatically constitutes the required nexus.  The legislature covered their bases through the explicit language of § 2252A and through the definition of child pornography.

Take a closer look at subsections (B) and (D) of § 2256.  Subsection (8)(B) considers as child pornography any visual depiction that appears to be a picture of a person under 18 years old, if the photo displays sexually explicit conduct (which, by the way, is more than mere sexually suggestive positions.  See 18 U.S.C. § 2256(2) (1996).  This gets really interesting with the current version of the statute, which appears to encompass sex between two avatars, or even mere exposure by an avatar of virtual genitals. More on that later).  Subsection (8)(D) includes the advertisement or even description of a sexually explicit visual depiction in such a way that would suggest that the material depicts a minor.  Without a doubt, these are far-reaching definitions

The definition of child pornography includes VCP, which means that a “sexually explicit” computer-generated image (CGI) that appears to depict a virtual child, but that is not a real child and does not derive from an image of a real child, is illegal.  The person who creates such an image faces no less than 10 years in prison. 18 U.S.C. § 2251(d).

My first question is how to determine the age of a CGI.  Even with an objective standard for determining whether an image appears to be of a minor, it seems pretty absurd to think that a person who creates a virtual image of a naked person who looks 17 years old (can virtual “people” have ages?) can go to prison for  10 years.  Furthermore, how does one create an objective standard? What adult features does an 18-year-old have that a 17-year-old does not have?  While these questions are more easily answered when comparing an adult to a 5-year-old, the line becomes blurrier as the “minor” (or virtual minor) approaches the age of majority.

Could a person be held strictly liable for possession VCP?  That seems inherently unfair, considering it would be a court deciding whether the virtual images were of a minor, and hindsight may be 20-20, but that does not necessarily mean that the “offender” deserves 10 years behind bars for looking at some explicit animé.  (As a side note, I think it is reasonable to assume that a prosecutor is not going to go out of his way to prosecute, and would not be able to easily prove, a case involving a virtual image of a child that looks 17-years-old.  Still, the fact that it is possible cautions one against uncritically accepting this definition of child pornography).

On the other hand, it seems inherently wrong, and therefore punishable, when a person looks at an image of a virtual infant or 10-year-old having sex.  I don’t care if it is virtual.  It is reprehensible enough (for me) to warrant punishment.  Nonetheless, it becomes difficult to determine whether an image depicts an actual minor.  This is probably one of the compelling reasons why Congress chose to include in the definition of child pornography any image that appears to be of a minor.

Why did Congress pass the CPPA in the first place?  Like I said, read Adler’s article if you ever have a chance.  Perhaps the rising social outcry against child abuse, and specifically child sexual abuse, contributed to the CPPA’s passing.  Child sexual abuse was declared a national emergency in 1990.  See Ian Hacking, The Making and Molding of Child Abuse, 17 Critical Inquiry 253, 257 (1991).  The “need” to act was evidenced by the Supreme Court’s decision in New York v. Ferber, 458 U.S. 747 (1982), which came shortly after child sexual abuse became recognized as a significant social problem.  Adler, 101 Colum. L. Rev. at 219.  I do not doubt that media frenzy contributed to the rising awareness of this horrendous “epidemic.”  In short, there have been a number of factors that contributed to the need to pass something that would protect children from sexual abuse in the form of child pornography (remember the “recovered memory” fad in the early 1990s? I learned a lot about it in undergrad, and Adler talks about it briefly.  Psychotherapists would “tap into” patients’ memories and uncover repressed memories of sexual abuse.  However, many now contend that the therapists actually created false memories in patients).

In its findings used to justify creation of the CPPA, Congress stated that child pornography may be used to entice other children to “willfully” engage in such conduct. Child Pornography Prevention Act of 1996, H.R. 3610, 106th Cong. § 121(1)(3) (1996). For example, showing child pornography to a young child may convince them that such behavior is permissible, or even desirable.  Unfortunately, Congress does not cite to authority to support its findings.  Nonetheless, this finding that child pornography can be used as a tool of seduction has been supported by the Supreme Court.  See Osborne v. Ohio, 495 U.S. 103, 111 (1990) (stating that “pedophiles use child pornography to seduce other children . . . .”).

In addition, Congress found that technology allows a person to create VCP that is “virtually indistinguishable” from real photos. H.R. 3610, § 121(1)(5).  Technology makes it impossible to determine whether the image is of a real or fake child and whether the image depicts an adult or minor. H.R. 3610, § 121(1)(6).  It logically follows that if child pornography can be regulated, and one cannot tell the difference between real child pornography and VCP, then VCP should also be regulated.  Again, The Supreme Court did not necessarily agree, as we will see next time.

Notably, Congress found that the effect on the offender and the child, and the danger to the child, is the same, whether the image is real or virtual; this warrants a finding that “elimination of child pornography and the protection of children from sexual exploitation provide a compelling governmental interest for prohibiting the production, distribution, possession, sale, or viewing of visual depictions of children engaging in sexually explicit conduct.” H.R. 3610, § 121(1)(8), (9), (13).

Adler notes that “an expert testified that most child molesters possess pornography.  But not all possess child pornography . . . . And there are . . . no studies of which I am aware that document how many people possess child pornography but do not molest actual children.”  Adler, 101 Colum. L. Rev. at n.32.  It is possible that Congress based its findings on anecdotal evidence.  While I wonder how Congress reached these conclusions, I operate under the assumption that they are valid (although I would prefer scientific testimony to back it up).

Assuming that Congress does have a “compelling governmental interest” in protecting children against becoming victims of child pornography, enter First Amendment.  Any law abridging First Amendment rights must be necessary to achieve a compelling government interest.  Being that the compelling interest is protecting children, any law must be narrowly tailored to meet those ends.  In other words, if the CPPA can possibly be used to prosecute someone for possessing a photograph of an 18-year-old who looks 16 (or a virtual photo depicting the same), then there is a pretty strong argument that the statute is not narrowly construed.

On the other hand, Congress stated in its findings that sometimes technology makes it impossible to determine whether a real or virtual pornographic image depicts a minor or an adult.  So maybe it comes down to which is more important: protecting First Amendment rights at the risk of hurting a child, or protecting a child at the risk of hurting someone’s First Amendment rights?

As we will see next week, the Ashcroft case holds unconstitutional certain parts of the CPPA.  I will say that I think the definition of child pornography is broad, possibly too broad; but I have a difficult time fathoming a statute that protects all children against harm that can be caused by VCP (assuming Congress’s findings are valid) while guaranteeing that no one is prosecuted based on an image of an adult who looks like a child, or a virtual image that may or may not be an image of a child.

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~ by hollyufl on October 18, 2010.

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