VCP: Is Am I > Protecting our Children? [6 of 8]

(6/8)

 

Germany bans VCP and it is punishable by up to 5 years in prison.  http://abcnews.go.com/TheLaw/story?id=3159871&page=2.  I have had trouble finding specific information on the language of the statutes but I did find some interesting new stories. For example, the German police have claimed that pedophiles have invaded Second Life and even have “VCP meetings.”  http://abcnews.go.com/TheLaw/story?id=3159871&page=2.  One investigator stated that he went into a VCP meeting and was subsequently offered real pornography.  http://www.guardian.co.uk/technology/2007/may/09/secondlife.web20.  In 2007, German prosecutors actually launched an investigation to uncover German participants who were purchasing in Second Life what essentially amounted to VCP.  This raises an interesting issue involving age-play, one that I brought up in previous blog entries.  How does one determine the age of an avatar?  The actual inability to do so explains why the CPPA used the language “appears” to be of a minor.  This is one reason why I think Germany and the UK have it right by explicitly prohibiting possession of VCP.

I learned from Maureen Lewin that the UK does prohibit “prohibited images of children” in the 2009 Coroners and Justice Act.  The image must be grossly offensive or obscene and must be produced for the main purpose of sexual arousal.  The motive for production is an issue for a jury to decide.  The Act actually catches in its net cartoon images, avatars, and imaginary children (aka VCP).

Interestingly, however, Ms. Lewis indicated that she was unaware of any case that dealt with prosecution of VCP alone.  Most police use the legislation to confiscate VCP when arresting an offender for a more serious crime.  In the UK, there is also the Protection of Children Act of 1978 and the CJA of 1988, both which address the possession or publishing of certain images.

The Protection of Children Act of 1978 (1978 Act) prohibited creation, distribution, and possession of child pornography but it did not reach VCP.  Through amendments, the 1978 Act came to proscribe creation, distribution, and possession of morphed images, or as the UK termed it “pseudo-photographs.”  John Ozimek, Cartoon law goes live: Time to burn your Japanese comics, The Register, April 6, 2010, available at http://www.theregister.co.uk/2010/04/06/cartoon_law_live/.  The part of the Coronors and Justice Act of 2009 (2009 Act) covering VCP came into effect on April 6, 2010.  Id. According to Ozimek, the rationale behind the 1978 Act was the notion that all indecent photos of children constitute child abuse.  This is similar to Congress’s rationale when it passed the CPPA and PROTECT Act.  The 2009 Act went a step further and indicated (like Congress) that VCP also encourages child abuse because it makes pedophiles desire to act out their fantasies.  Id. Ozimek appears to question the truth of this proposition.  However, recall my previous blog where I mentioned a study conducted in the U.S.  This study at least suggests that VCP desensitizes people to the sight of child pornography.

Again, Ozimek raises the same issues that were raised with the CPPA.  How does one determine the age of a cartoon? What constitutes “in the presence of a child” when we are talking about a cartoon?  Id. These are issues that the UK will have to deal with in the future.  However, as I indicated above, Ms. Lewin said she was unaware of any prosecutions that solely involved VCP.

The following language of the UK Coroners & Justice Act can be found at: http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2.  Various impact statements and other information regarding the Act may be found at http://www.justice.gov.uk/publications/coroners-justice-bill.htm.

The 2009 Act makes it an offense to possess a “prohibited image of a child.”  See 2009 Act, §62(1) (2009).  To be considered a prohibited image, the image must be pornographic, must be “grossly offensive, disgusting, or . . . obscene, ” and must fall within subsection (6).  § 62(2).  Subsection (6) includes any image that focuses on a child’s genitals or anal area, or portrays any act in subsection (7) (WOW it’s like a treasure hunt).  Moving on to subsection (7), it includes as a qualifying act sex or oral sex with a child or in the presence of a child; masturbation with a child or in the presence of a child; penetration of a child’s vagina or anus with another body part or any object; penetration of anyone else’s vagina or anus in the presence of a child; etc. (it includes sadistic or masochistic activity, bestiality even if the animal is IMAGINARY. . . yes, it includes sex with an imaginary animal in the presence of a child….and the CPPA was unconstitutional as overbroad? Yikes!).

OK so what we have here is the criminalization of possession of any image that involves consensual adult sex if it is in the presence of a child.  Obviously it also includes sexual acts committed upon a child.  This “presence of a child” language, as Ozimek points out, is problematic.  Does that mean that it is illegal if there is a child in another room within earshot?  Yes there are proof issues with that, but suppose it could be proven.  That seems kind of crazy that an Act that prohibits possession of “prohibited images of children” encompasses images of adults as well.

It gets even more confusing.  The image(s) must be produced principally for the purpose of sexual arousal.  §62(3).  I find this interesting because the statute prohibits possession.  This allows prosecution of a person who possessed but did not produce the image.  Yet the statute still requires proof that the producer made it for this purpose, not just that the possessor used it for that purpose.  I could foresee a major proof issue there, especially if the producer cannot be located.  Furthermore, Section 62(5) states,

 

“[s]o, for example, where – (a) an image forms an integral part of a narrative . . . and (b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic . . . .”

 

In other words, if there is a movie or a series of photographs and only one is pornographic, then it might not be considered pornography.  But it might!  I hardly think anyone wants to chance it because who is to say whether the image is or isn’t pornography? A jury.  I will say that I think it is hilarious that the statute actually says “so . . .” as if it is conversational.

Section 65 ensures that VCP is included in the definition.  An “image” includes data that can be used to create an image.  §65(2)(b).  It also includes an image that conveys the impression that the image is of a child.  §65(6)(a).  Section 65(8) explicitly states, “[r]eferences to an image of a child include references to an image of an imaginary child.”  Thus, if there was any question before, there is not now.

I am not going to discuss the defenses found in section 64 but I find it interesting that the defenses are explicitly spelled out in the statute.  Section 67 addresses entry, searches, and seizures.  It cross references other Acts and provisions relating to these topics.  It shows an interesting difference between American and “foreign” legislation.  Perhaps it is necessary because this Act applies in England, Wales, and Ireland.  In any event, it is just something I noticed.

To conclude briefly, one can clearly see that the UK has addressed head-on the issue of VCP.  The PROTECT Act comes close, but not quite.  While I think the 2009 Act has some quirks of its own (such as the language “in the presence of a child”), in terms of addressing VCP I think it got it right.  Whether or not VCP actually does promote pedophilia, I don’t really care.  For me, the fact that it might is enough.  VCP has little or no artistic value, and therefore the US should tackle the issue head on and expressly ban VCP.

Next week I am going to explore why the PROTECT Act has not really been analyzed after US v. Williams (see last week’s blog for that case).

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~ by hollyufl on November 21, 2010.

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