VCP: Because Am I > Protecting our children [4 of 8]

(Blog 4/8)

Regarding last blog entry: Where I stated that the Court went on to reject all of the government’s claims, I should have clarified that the government’s claims centered on the Congressional findings (see blog #2).  “The Supreme Court refused to defer to Congress’s extensive findings in this case despite sufficient evidence for the Court to find in favor of the government.”  Stephen T. Fairchild, Note, Protecting the lease of these: A new approach to child pornography pandering provisions, 57 Duke L.J. 163, 187 (2007) (questioning how direct of a link between pandering and sexual abuse the Court is going to require before upholding a ban on VCP and stating that such a link may be impossible to prove).

Without suggesting that such a link may be impossible to prove, Stephen Treglia noted that Justice Kennedy’s opinion in Ashcroft left open the possibility that a ban on VCP would be upheld if future legislation “include[d] a [more direct] finding that [VCP] causes harm to real children . . . .”  Virtual Child Porn, 3/16/2004 N.Y.L.J. 5, (col.1).  Another solution might be to incorporate the Miller standard into the CPPA.  Id. In my opinion, the strongest argument that the Court in Ashcroft made in support of its holding was that the CPPA did not incorporate the Miller test.  Thus, I see this as a realistic solution.

One scholar argues that banning VCP would not prevent sexual abuse of children because VCP provides an outlet for those who would otherwise turn to abuse of real children.  Dannielle Cisneros, “Virtual Child” Pornography on the Internet: A “Virtual” Victim?, 2002 Duke L. & Tech. Rev. 0019 (2002).  This is the same argument we discussed in class earlier this semester with regard to general virtual crimes.  The idea is that providing an outlet that is arguably less reprehensible minimizes the likelihood that a sex offender will victimize real children.  Liu terms this the market deterrence theory.  See infra. Cisneros does not support her assertion with any study showing that this would be the effect, and I think it equally as likely that it would increase the likelihood of sexual abuse based on principles of desensitization and the notion that career criminals seek ever-increasing “thrills” in the form of more offensive, violent crimes (such as a rapist who then begins killing his victims).  See e.g., Aimee Tompkins, The Psychological Effects of Violent Media on Children, AllPsych J. (2003), available at (discussing the different hypotheses). Furthermore, she hypothesizes that the child pornography market might “spur” as a result of banning VCP.  Cisneros.

On the other hand, Liu argues that the Ashcroft Court’s reliance on the market deterrence theory relies on a “false assumption of pragmatic rationality,” stating that if it was true that pornographers are less likely to abuse children when they have VCP as an outlet because they would not risk criminal prosecution, then “they would not use or create child pornography in the first place.”  Ashcroft, virtual child pornography and First Amendment jurisprudence, 11 U.C. Davis J. Juv. L. & Pol’y 1, 39 (2007).

Cisneros does make a valid point that if the government’s goal is to protect children from sexual exploitation, then the solution should be to eliminate the illegal market.  Cisneros.  She also suggests harsher punishment for child pornographers because it would be more likely than banning VCP to prevent victimization of children.  Id. Because I do not believe that all criminals actually conduct a cost-benefit analysis that considers the penalties of conviction, I question whether one solution is really better than the other.  Perhaps both harsher punishments and a ban on VCP is the answer.

Going back to Ashcroft, Shepard Liu analyzes the Court’s holding and its consequences and concludes that there still exists tension between the First Amendment and VCP.  Ashcroft, virtual child pornography and First Amendment jurisprudence, 11 U.C. Davis J. Juv. L. & Pol’y 1 (2007).  In his own version of the Kennedy highway, Liu criticizes the court for failing to find as a compelling government interest the prevention of indirect harm as a result of VCP production.  Id. at 40.  Besides the Ferber court acknowledging a relationship between child pornography and indirect harm to children, id. at 36,  Liu considers the fact that the Ninth Circuit opinion does acknowledge the notion that indirect harm justifies a ban on VCP (but finds that VCP does not cause indirect harm), whereas the Court reverses the logic in its opinion.  See id. at 34 (discussing the procedural posture of Ashcroft).  Thus, the Court’s decision is inconsistent with precedent.  He further argues that the Court’s improper finding is used to reject theories that VCP “is used to seduce children;” VCP whets the appetites of pedophiles; and VCP promotes the child pornography market (which is the market deterrence theory discussed above).  Id. at 35-36

Liu discussed the Court’s departure from other case law, but I do not get into that here because it would require an analysis of at least three other Supreme Court cases.  Read Liu’s article for an interesting discussion of these cases.  Additionally, Liu comments that the Ashcroft decision placed on prosecutors a nearly insurmountable burden by requiring that they prove that an image used a real child.  Id. at 51, 54.  This is so because VCP is virtually indistinguishable from actual child pornography.  Id. at 51.  Lastly, he argues that the Court’s aim of consistency in the law failed.  Id. at 50.  First, Congress quickly passed the Child Obscenity and Pornography Prevention Act of 2002 (COPPA), which is more specifically aimed at regulating VCP.  H.R. Rep. No. 107-526 (2002).  Second, Congress passed the PROTECT Act, aimed at protecting children through successful prosecution of child pornography cases while ensuring that First Amendment rights are protected.  S. Rep. No. 108-2 (2003).  Third, lower courts have inconsistent adjudicated child pornography cases after Ashcroft by adopting different evidentiary principles.  Id. at 52.

Most of the cases to which Liu cites indicate a preference for sending to the jury the issue of real versus virtual.  See e.g., United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003).  The Eleventh Circuit in one case found as a matter of law that “no reasonable jury could have found that the images were virtual children . . . as opposed to actual children.”  United States v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002).  Thus, while some circuits leave the decision to a jury, others seem to be making the determination as a matter of law for the judge to decide (which is what I suggested earlier).  Other cases have tackled the issue of what evidence the government must present to prove that the images are real.  See e.g., United Stets v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (government need not present additional evidence or expert testimony).  Contra United States v. Hilton, 363 F.3d 58, 64 (1st Cir. 2004) (requiring the government introduce evidence beyond the mere images).

So what does Liu suggest?  For one, it appears he adopts partially the Rehnquist concurring/dissenting opinion onto which Scalia signed.  That opinion essentially stated that the CPPA is not overbroad when one considers the definition of child pornography, the scienter requirement, and the affirmative defense (that a defendant can claim an image was entirely virtual).  Id. at 47 (discussing the concurring and dissenting opinions from Ashcroft).  However, seeing a loophole in Ashcroft, Liu essentially asserts that the loophole must be closed “to remove the safe harbor for child pornographers” and does not get into specific recommendations.  Id. at 54.

These articles are meant to suggest that regardless of the outcome of Ashcroft, there remains considerable debate about whether it was the right decision, what should be done to protect children from the harms of child pornography (virtual or not), and what future legislation and case law can do to fill in the gaps or remain true to the Ashcroft rationale.  As you can see, lower courts are inconsistent in their applications of the law, and Congress expressed its adversity to Ashcroft by passing not one, but two, Acts in direct response to the Court’s decision.

Next week I hope to provide the text of the current version of the CPPA, the COPPA the PROTECT Act and assess whether it accomplishes its goal of being more narrowly tailored so as to survive strict scrutiny analysis. From there, I will look at international law, focusing on Germany, a country that prohibits production of VCP.  At that point I don’t know.  If this topic interests you and you’d like me to blog more on an aspect of the topic of VCP, let me know.


~ by hollyufl on October 31, 2010.

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