Virtual Child Pornography — An International Issue

(Note: This is a resubmission as the previous post seems to have disappeared)
The criminalization of child pornography is a social and legal issue that has little polarization of opinion in the debate surrounding it. There is little to no support for the creation and distribution of child pornography except among ardent free speech activists and perhaps pederasts themselves. That being said, there are “non-real” forms of child pornography that theoretically would legally allow the creation, enactment, and possession of a variation of child pornography.

In this gray area of child pornography law is the virtual representation of children in sexual acts. By traditional child pornography laws, these virtual representations do not constitute child pornography. In these instances, there is no actual child being abused by the generators of the pornographic content, so the original public policy reasoning behind anti-child pornography legislation is satisfied. In the US, the issue of virtual pornographic material depicting children has been dealt with in part by the PROTECT act (at http://www.gpo.gov/fdsys/pkg/PLAW-108publ21/content-detail.html). The PROTECT act, however, does not explicitly prohibit representations of children in sex acts, as it calls for the three-pronged Miller test for obscenity. The Miller test uses highly variable standards that apply community mores in determining whether or not content is obscene. If the Miller test is not satisfied, then the pornographic material is determined to not be in violation of U.S. law. Less realistic portrayals of child sex seem to be not explicitly prohibited by the act, nor does U.S. law yet provide any other explicit criminalization of artificial non-realistic versions of child pornography. (http://abcnews.go.com/TheLaw/story?id=3159871&page=1)

However, other countries have already addressed the legality of animated, cartoon, or video game portrayals of children in sexually explicit situations. In the United Kingdom, the Coroners and Justice Act of 2009 (http://www.legislation.gov.uk/ukpga/2009/25/contents#pt2-ch2-pb1-l1g62) addresses whether or not virtual child pornography is to be allowed. In relevant parts, sections 62-69 of the Coroners and Justice Act state:

“(1)It is an offence for a person to be in possession of a prohibited image of a child.”

“(2)A prohibited image is an image which—
(a)is pornographic,
(b)falls within subsection (6), and
(c)is grossly offensive, disgusting or otherwise of an obscene character.”

and

“(6)An image falls within this subsection if it—
(a)is an image which focuses solely or principally on a child’s genitals or anal region. . . .”

(http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2)

The Act goes on to explain that any images representing the performance of explicit acts within the presence of a child are also now considered to be illegal. The Coroners and Justice Act’s broad and loose requirements for material to be considered child pornography have been created to combat the type of virtual pornography that has been known to occur in Second Life and other virtual environments. The Act allows the government of the United Kingdom to prosecute sexual activities occurring in these environments without satisfying a multiple-prong test for obscenity as in the U.S.

An article at The Register, a British website dealing with technology news and opinions, addressed the discussion this warrants when the law first came into effect. In the article, (http://www.theregister.co.uk/2010/04/06/cartoon_law_live/), author John Ozimek points out that if an individual possesses “non-real, non-photographic images” that satisfy the above listed requirements of depicting “principally a child’s genitals or anal region,” then that individual will be in violation of the law and eligible for prosecution. The article further examines the motivations for creating the law.

The public policy law for prohibiting child pornography is clear. The sexual abuse of a child is one of the most abhorrent acts a government can legislate against. To allow pornographic materials involving children to be created, purchased, or possessed would be to at least tolerate in part the sexual abuse of children in order to create the pornography. What then, some ask, is wrong with virtual child pornography? They would argue that no minors are harmed in the creation of the material, and therefore the original public policy driving the material to be outlawed has disappeared.

Ozimek’s article touches on this very issue. Apparently within the British legislation debate followed the act in additional arguments against non-real child pornography became apparent. The first was a simple appeal to general human morals, in that “if paedophiles enjoy it, it must be bad.” Clearly this appeal has some psychological weight, as discussed by Ozimek, however the overall value of the viewpoint from a legal perspective seems lacking.

The second additional point surrounding the criminalization of virtual child pornography is addressed by the Regsiter, quoting one Member of Parliament who states:
“If somebody is in the process of arousing themselves sexually by that process, it must be part of something. In a lot of cases, it will be part of something that will lead on to something else.”
This point hits a strong dividing line in the debate surrounding child pornography. Some believe that access to child pornography sates the desires of pedophiles, potentially providing them with an outlet for their sexual desires without incurring the harm of any children. Others feel that providing a pedophile with pornographic material depicting children will merely encourage them to finally indulge their desires in pederasty, regardless of whether or not children were actually involved in the production of the pornography. (http://www.radio.cz/en/section/curraffrs/child-porn-consumers-safe-from-prosecution-in-the-czech-republic) Regardless, the legislation surrounding child pornography in a number of western countries seemingly errs on the side of caution, taking steps in some form to prevent the production of virtual or pseudo-child pornography.

In Germany, much as in the UK, material depicting children in sexual acts is strictly outlawed, be the representations actual or merely two virtual characters interacting. So-called “ageplay,” in which two consenting adults enact a sexual fantasy in which one of them plays a minor is expressly prohibited by German law. The German Criminal Code expressly makes it a crime to possess or produce child pornography in any form. (http://www.iuscomp.org/gla/statutes/StGB.htm#184) The code also has broad provisions for crimes made with the assistance of computer technology; ergo both “ageplay” and virtual child pornography are strictly illegal in Germany, without any judicial test to be applied regarding obscenity.

When considering the varied approaches and standards that countries have towards child pornography within the context of the Internet, an inevitable discussion arises regarding the conflict of law between nations. This issue is discussed in some depth in article on the CYB3RCRIM3 blog, located at http://cyb3rcrim3.blogspot.com/2007/05/virtual-crimes-conflicting-laws.html. In the article, author Susan Brenner observes that ageplay acts and other virtual child pornography that is at least tenuously legal in the U.S. would be expressly illegal within Germany. Yet without an international law governing this form of pornography, there is little the German government can do to prevent the actual act itself or ensure that all parties are brought to justice. Due to the inherent internationality of the Internet, these issues crop up often.

As addressed in the article, a nation cannot simply extradite and prosecute foreign individuals when the crime they have committed is not illegal where they live. While Brenner addresses the issue of international law as if the individuals had decidedly perpetrated the crime within ones own territory, this fails to address the internationality of jurisdiction that occurs when the activity takes place online. If two individuals are engaging in virtual representations of sexual acts with children while in Second Life, where is the location of the crime? Is it at either user’s computer location? Is the event occurring at the particular Second Life server processing and hosting the information transfer? Is the crime simply occurring in the Internet?

Stephan Wilske and Teresa Schiller address these issues in their Indiana Law Federal Communication Law Journal note, “International Jurisdiction in Cyberspace:Which States May Regulate the Internet?” (located at http://www.law.indiana.edu/fclj/pubs/v50/no1/wilske.html). While the note examines laws from both an interstate and international level, it becomes readily apparent that there is yet to be a blank standard in the regulation and prosecution of virtual child pornography as described in Brenner’s CYB3RCRIM3 article. Accordingly, Brenner’s hypothesized end result in which German officials simply ignore the crime as perpetrated by foreigners seems to be the most likely outcome.

However, this does not stop a country from executing criminal laws prohibiting virtual child pornography against its own citizens. This year in Sweden a translator was fined for possessing pornographic material representing child. (http://www.thelocal.se/27984/20100725/) The Swedish translator in the article allegedly had accessed and downloaded Japanese comic book images representing child pornography for the purposes of keeping up to date with Japanese comic developments. In Japan, only photographic and live-action video depicting real children is outlawed. The production and dissemination of a pornographic comic depicting children is not illegal. (http://www.theage.com.au/world/child-porn-row-exposes-mangas-dark-side-20100219-olwo.html)

Obviously in Sweden this material is not legal. The punishment decided for the translator by Swedish courts was a fine, and not jail time, but the court case raised similar issues that prevail in virtual child pornography, especially when accessed online from a nation where virtual child pornography is legal. Regarding the case, a Swedish tabloid stated: “However unpleasant and nasty a work of fiction might be, and whatever one thinks about Japanese porn involving cartoon children, there is actually no victim here. The children in the Uppland man’s manga comics were not molested since they were characters in a comic.” This sentiment was echoed by the translator’s lawyer.

The issue of representative, non-real child pornography almost required the advent of the Internet age to come to a head. The Internet has allowed the vast dissemination of child pornography where it once was something that had to be hidden in a physical medium. Additionally, the broad accessibility of the Internet has created issues in which virtual child pornography may be created or accessed from locations where it is not expressly illegal. Many law enforcement officials around the world feel that the continuing tolerance of virtual child pornography is the result of a loophole and should be closed down. Others feel that virtual child pornography should be tolerated as it provides the content of child pornography without any explicit harm to children. Either way, it’s clear that without further international cooperation and legislation on the issue, virtual child pornography will continue to remain in the gray area of legality and be readily available to those who wish to access it.

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~ by scottyufl on November 22, 2010.

10 Responses to “Virtual Child Pornography — An International Issue”

  1. I think the opinion that they aren’t actually hurting children by looking at VCP holds some water. It does seem like if the market can be 100% non-real children porn then that is something we should promote.

    However, I imagine that most people that enjoy that type of pictured image would quickly grow tired of it and want the real thing.

    I’m pretty liberal when it comes to social issues but I don’t think the creators of the First Amendment had child pornography in mind when they created the First Amendment’s Free Speech. The whole idea of it is just to morally reprehensible to have any value to society, in my opinion.

    I think the UK got it right, in this case. But we still have Dodge Challengers and Freedom. FTW.

  2. I would echo my comments to the previous blog here since they are so related. I’ll keep this one to just the international and jurisdictional issue.

    I think the location of the crime is where the user intentionally causes the depiction to be displayed, as far as the kind of thing like SL age play goes. The server presumably doesn’t render a depiction of the data it’s processing, so that wouldn’t fit within the statute. It might seem anomalous that one user would face penalties in a jurisdiction that criminalizes this while another person participating in the same depiction in a non-criminalizing jurisdiction would not face penalty; however, that’s just an odd result of sovereignty and international communications. Further, the crime is the actual depiction, so a single event could be depicted to a number of users who could each face penalties for intentionally causing those to be displayed.

  3. I agree with Frankie that it is vital to note the importance of the argument that virtual child pornography does not hurt actual real living children. And on that same token, I can even understand how people who would want to harm children in a sexual manner could benefit from watching virtual child pornography.

    It provides a means for them to get their kicks, so to speak, without physically harming a child or partaking in an illegal form of pornography (noted countries where virtual child pornography is illegal excluded). But I can totally understand the concern that creating a depiction of such an abhorrent act may lead people to be desensitized to it, or even, as Frankie suggested, may just cause them to desire the real thing.

    Overall I can understand the difficulty that this subject is causing lawmakers, but at the end of the day I think that child pornography, in any form, is something that our country and society are better of without completely.

  4. This may seem like a minor point, but in going after citizens of a country for various types of possession of virtual child pornography, there seems to be a (probably untrue) assumption that people of a country know exactly what the law is. If a person can easily get material from Japan that is legal there, they may not know that it’s illegal in their country.

    The only solutions I can see are (1) public education – unlikely because who really wants to put child pornography in the news and say that any part of it is actually ok? or (2) ignoring possession beyond things that would obviously be considered illegal and go after the source, if they’re jurisdictionally available or the internet service provider for allowing those images through. Neither of these seem like they’re going to work, so I’m at a bit of a loss.

  5. I think that the standard set forth in the UK statute is overly broad and would likely not be held constitutional in the US. When using subjective standards it is important that the objectives be narrowly construed and a legitimate objective to be clear.

    Even the Miller test has a narrow definition and the community standards have been subject to much debate. In Sable v. FCC, the Supreme Court held a general ban on commercial indecency was overbroad.

    In order to comply with diverse obscenity standards throughout the country, the Supreme Court has proposed commercial providers of adult services either monitor source of calls on its own or contract with carriers to arrange for the advanced identification of calling communities and determination of their community standards of obscenity.

    Although I believe that virtual child porn should be regulated, I believe broadening the definition to the point where any “non-real, non-photographic images depicting principally a child’s genitals or anal region” is too broad in is objectives.

    However, I do agree with members of Parliament who have argued that the arousal of a pedophile using virtual porn can be a gateway. (see my comment on Natalie’s blog for more info)

    In regards to the conflict of laws, governing parties have the abilities to decide the laws that apply for the contract. In order to access SL you are in fact contracting with Second LIfe directly, regardless of where you are physically located. Inserting a choice of law clause or a clause that users must comply with all laws of State X would not completely resolve, but would mitigate the problem. The fact that someone obtains the pornographic material from a legal country and violates a law in his or her own country is a minimal issue. Each person is responsible for complying with the laws where they live; ignorance of the law is not excuse of the law.
    Here is an example of what I mean: Marijuana is legal in Amsterdam, but if fly back from the Netherlands to the US with a quarter of blueberry in my pocket, I’m going to be arrested when I go through customs anyway. The fact that is was legal where I got it is irrelevant.

  6. Great article, Scott. The jurisdictional issue is definitely an interesting one. I think Fmari’s idea of placing the action at the location where the images are displayed definitely has a ring of fairness to it. Ignorance of the law is no defense, at least in America, so holding citizens accountable to the laws of their country wouldn’t be any manifest injustice. This also means that individuals displaying/making available content that is not illegal in their country (say Japan) wouldn’t need to worry about access to their content – a heavy burden to place on any content provider, even insidious ones.

    On the topic of Japan, I will be spending next semestre studying abroad in Tokyo. I have received a lot of culture-shock warnings and advice from other students, and though everyone assures me that Tokyo is one of the safest cities on the planet, almost everyone I’ve spoken to has warned me about being groped on the subway lines. One former student told me to dress more like an adult, because the younger you look, the more frequently this problem will occur. I can’t help but think about this warning while considering the debate over the benefits/detriments of virtual child pornography – could this phenomena be a result of it’s legal status in Japan?

  7. Not to restate the obvious, but I highly doubt there will ever be a complete international agreement over what people can and cannot do on the internet, and that is where the problem lies. I don’t see how it is possible for any one country to attempt to police within their own borders when the activity may have originated from another country. The very essence of the internet is the fact that it allows for communication across the physical boundaries of a nation.

    As brought up in previous replies, the idea of culture is also an issue. What is considered acceptable in one country may not be acceptable in another. I just find it hard to believe that a plausible solution is possible. Rather, I think there will be more cases where countries must overlook their own rules as applying these rules will be next to impossible.

  8. Very well-written. This reminds me of the issue from our CFAA reading about where internet crimes actually occur, but on a much more grand scale. If we have such disagreement about how to handle location for purely domestic internet crimes (like the Drew case), then how could the globe be expected to come to any sort of consensus on the matter?

    Even if we “solve” the issue for crimes that take place in America, I would be shocked to see much of the world follow suit. In addition to the inherent sovereignty issues and the general trend of America losing international clout, as you noted other countries have completely different schemes to regulate the behavior that likely would not directly translate into agreement on how to prevent this content. Not only do many countries lack a similar version of our First Amendment, but the difference in how to respond to these issues is overwhelming. From the extreme of Japan, where the only prohibition is depictions of actual minors and I understand there is a thriving market for material like the manga you described, to the other extreme of Germany, where all forms are prohibited, an international consensus seems optimistic, to say the least.

    I think you’re right that, if any topic would do it, this may be the issue that brings countries together regarding the legal treatment of the internet. It has enough social and moral appeal to at least have an international consensus on the underlying issue, which is a great start considering the lack of international agreement on many other issues which are potentially more damaging, like terrorism and nuclear proliferation. Hopefully the powers that be can come up with some regulations that will prevent pedophilia by allowing different countries to work together towards that goal.

  9. If you read my serial blog you know that I think the US should just ban VCP altogether. There are issues where we want to make the law as narrowly tailored as possible in order to pass strict scrutiny. However, I do not see the sense in beating around the bush with this issue.

    Children may not be directly harmed by true VCP; but indirect harm serves to justify an explicit ban. Miller’s obscenity test can serve as a buffer, as well as the definition of sexually explicit.

    On another note, you raise some interesting jurisdictional issues that inhere in a world-wide internet system. International law has principles of jurisdiction, such as nationality or universal jurisdiction (I forget the names of the other 3) that may be applicable. For example, the offender’s nationality could serve as the basis for jurisdiction. However, if there is an American citizen sitting in a cafe in the UK sending child porn to a person in Germany, this person should not go unpunished. Perhaps if each country includes a jurisdictional statement in their statutes some confusion may be resolved.

  10. I would think that some way or another, VCP is going to be all-together banned in the United States. I would guess there are not many people out there that even know this is going on. It would probably just take an incident where someone got caught molesting a child and it was found out that for a long time leading up to the incident this person was engaging in VCP online. Something like that is bound to hit the presses and start a public push.

    I am not sure where I stand on the issue of whether it’s something that prevents pedophiles from engaging in actual bad acts or whether it makes them want actual bad acts more. I would guess that it’s somewhere in the middle where some have their desires fulfilled and some it makes want the real thing. I’m not sure that advocates either a complete ban or just allowing it.

    I find the issue of where the violation occurred to also be interesting. It will be difficult without some international agreement for VCP laws to be uniformly enforced. That will, of course, never happen.

    I just don’t see this issue catching a ton of steam until the media grabs a hold of it. In that circumstance, we will see many outspoken people very. very opposed to VCP.

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