VCP: Am I is still > protecting our children [8 of 8]



You may recall from last blogs that the PROTECT Act prohibits VCP only to an extent.  Included in the definition of VIRTUAL child pornography are the following elements: (1) image of a child; (2) sexually explicit; (3) CGI; (4) virtually indistinguishable from a real child.

Recall the earlier discussions about real versus fantasy crime.  One common thread throughout the discussion was whether there was real-world harm.  That is a major question we must ask here.  Does VCP on Second Life (such as sexual age play) create real-world harm?  One might say yes because it desensitizes people to VCP and indirectly causes harm to children by increasing the likelihood of child sexual abuse.  On the other hand, one might argue that the harm is intangible and does not rise to the level of harm that would warrant an exception to the constitutionally protected principle of free speech.  See Sabryne Coleman, You only live twice: How the First Amendment impacts child pornography in Second Life, 29 Loy. L.A. Ent. L. Rev. 193, 213 (2009) (arguing that cyber-sex with CGI does not harm real children).  In addition, we are talking about constitutional principles, not merely termination of one’s SL account for violation of the Terms of Service. Arguably, criminal sanctions go too far.  Nonetheless, it is a valid thought to insist that such morally offensive people be punished.

Another point to make is that SL is very different than other VCP in that avatars are clearly animated.  As Coleman points out, no reasonable person would believe that an avatar resembles a real person SO MUCH that it is “virtually indistinguishable” from a real child.  Id. at 194.  (Side note: Actually, the constitutionality of this element has never been addressed by the Supreme Court.  I doubt the Court would lessen the standard, but it could very well reinstate the requirement that the child be a “real identifiable minor.”).  Coleman makes another argument: in-world rape does not generate real world consequences and therefore neither does in-world chikd sexual abuse (i.e. the person controlling the avatar is not subjected to real danger or even an appreciable amount of mental suffering).  Id. at 213.  In a sense Coleman is on point with the analogy.  However, one difference I see is that if there is any appreciable amount of real-world harm, the adult “rape” victim can sign off and escape harm.  A child who is not directly involved cannot.  Congress has spoken: circulation of child pornography harms a child enough to warrant proscription. The question then circles back to whether sexually explicit conduct involving a childlike avatar (assuming we can conclude it is a child avatar) constitutes child pornography.

Before I make my conclusion I would like to point out that Coleman discusses the fact that no direct physical gratification comes from SL VCP.  Id. at 215.  In this sense, it is like watching a porno online.  Thus, no child is harmed.  Id. However, this logic fails.  A person can be prosecuted for possession of real child pornography, even if they did not produce it.  Thus, even though there is no direct physical gratification from real child pornography, physical gratification is not a consideration when discussing the offensiveness or illegality of the images.

In addition, Coleman discusses the rationale of shielding minors.  S/he (Sabryne – male or female?) focuses on the idea that SL users must be 18 years of age.  Id. at 217.  The mere possibility that someone under 18 might sneak onto SL does not justify a First Amendment exception.  Id. at 218.  But there is the real risk of indirect harm here through desensitization, a child watching what goes on in SL “age play” (which btw is grounds for being kicked off of SL), AND the sneaking onto SL scenario.  Do these risks combined create justification for criminalizing VCP found on SL?  Arguably they do, since Congress stated that indirect harm is a valid justification for banning child pornography (although the Ashcroft Court said that prevention of indirect harm does not constitute a compelling government interest, the Ferber Court did discuss the indirect harm that results from child pornography).

Despite me playing devil’s advocate here, and despite the fact that I think that VCP should be expressly banned in the United States, I do not think that sexually explicit child-like avatars should be criminalized as VCP, simply because there is no way an avatar can be considered “virtually indistinguishable” from a real minor.  HOWEVER, that being said, I think that there is a valid argument that such sexually explicit images should be proscribed under Miller because there is a good case for arguing that such material is obscene.  Congress would have to fashion a statute that prohibits obscene depictions of “child-like” avatars.

To conclude my serial blog, I discussed what VCP actually is, what it is not, and whether it is constitutionally protected in the United States.  Currently it is.  However, other countries such as the UK (consisting of England, Scotland, Wales, & Northern Ireland in case you were wondering) and Germany directly prohibit VCP.  Miller set forth the test for determining whether an image was “obscene” and Ferber expressly stated that child pornography is not protected by the First Amendment.  I discussed the 1996 CPPA, which was overruled by Ashcroft, and the legislative response, which came in the form of the PROTECT Act.  The Williams Court upheld the constitutionality of at least one prong of the PROTECT Act.  There are valid arguments on both sides about whether VCP should be protected under the First Amendment.  Nonetheless, it is my contention that the PROTECT Act does not go far enough because it does not expressly prohibit VCP.  Hopefully Congress and the Court see my way of thinking and listen to me someday…


~ by hollyufl on November 25, 2010.

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