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Sight Crime: The Complexity of Federal Child Pornography & Obscenity Laws
Derek Logue
November 30, 2015; Updated Nov. 14, 2016

ABSTRACT AND DISCLAIMER

The intent of this article is to provide an overview and assist the reader in understanding the often confusing federal Child
Pornography (CP) statutes, focusing primarily on the charge of CP possession. Current Federal guidelines can, at times, consider
even fully clothed children as child pornography if the picture is deemed lascivious, age inappropriate, or obscene; however, there are
times when even nude pictures of children are not considered CP, such as medical or historical pictures, or other representations of
literary or artistic value. So-called “virtual CP” can also lead to obscenity charges under certain circumstances, but not child porn
charges because no real minors were used to create the images. A person may be convicted under the harsher “child pornography”
statutes, which are registrable offenses, or may be convicted under federal “obscenity” charges, which are not registrable offenses.
Current tests for determining whether an image violates federal CP or obscenity laws tend to be vague and demands the juror or
judge “think like a pedophile.”

This article is not intended to substitute for legal advice for CP defense. State Statutes may differ vastly from the federal statutes and
the arguments used in this article should not be assumed to apply equally to child pornography statutes in your state. The best advice
is to check the statutes in your state and consult a specialist in this field to determine if an image you stumble upon is illegal. For your
own safety, I advise to follow the mantra, “When in doubt, throw it out.”

Please note: This article focuses of the Federal definitions of child pornography and obscenity; individual states may deviate on the
definitions of child pornography and obscenity. Furthermore, some states may count obscenity-related charges as registerable
offenses. Please keep that in mind as you read this report.

INTRODUCTION

The Telegraph, a UK media outlet, conducted an interview with legal novelist and bestselling author John Grisham in October 2014
about his latest soon-to-be bestseller, when the subject turned to America’s problem with excessive incarceration. Among the
examples Grisham provided were white collar criminals and minorities arrested for minor drug-related crimes, but the examples John
Grisham used that generated the most controversy were child pornography convictions:

“We have prisons now filled with guys my age,” Grisham said. “Sixty-year-old white men in prison who’ve never harmed anybody,
would never touch a child, but they got online one night and started surfing around, probably had too much to drink or whatever, and
pushed the wrong buttons, went too far and got into child porn…We’ve gone crazy with this incarceration.” [
1]

The backlash was extreme—online commenters were calling Grisham a “pervert” and calling for the FBI to raid Grisham’s home. [
2]
Under public pressure, Grisham offered an apologetic statement on his website:

“Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography—online or otherwise—
should be punished to the fullest extent of the law. My comments made two days ago during an interview with the British newspaper
The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of
children. I can think of nothing more despicable. I regret having made these comments, and apologize to all.” [
3]

For a moment, there was a discussion on the complexities of the issue of child porn prosecutions in America. Sadly, much of the
discussion was devoid of any rational critique of the justice system; rather, most of the discussion surrounded outrage at Grisham’s
critique of child porn convictions. How much does society really understand about the issue of child porn laws? As with most
discussions of sex offender laws, the issue of understanding child pornography laws is not such a black-and-white issue.

THE EVOLUTION OF CHILD PORN LAWS

As the sexual counterrevolution and the abuse awareness movement rose to prominence in the 1970s, the issue of child pornography
became part of a larger discussion on addressing sexual morality in our culture. Starting in 1977, [4] a series of reports and
legislation was designed to eradicate the distribution of CP. The Meese Commission Report found that the production and sharing of
child pornography images causes serious harm and noted that “[i]f the sale or distribution of such pictures is stringently enforced,
and if those sanctions are equally stringently enforced, the market may decrease and this may in turn decrease the incentive to
produce those pictures.” The Child Abuse Victims’ Rights Act stated that Congress had “recognized the physiological, psychological,
and emotional harm caused by the production, distribution, and display of child pornography by strengthening laws [proscribing]
such activity.” [5]

Over the past three decades, the federal government has passed a series of laws targeting child pornography:

  • 1977: Protection of Children Against Sexual Exploitation Act, Pub. L. No. 95—225, 92 Stat. 7 § 2 (1978) (codified at 18 U.S.
    C. §§ 2251-2253).
  • 1984: Child Protection Act of 1984, Pub. L. No. 98—292, 98 Stat. 204
  • 1986: Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99—628, 100 Stat. 3510
  • 1986: Child Abuse Victims’ Rights Act, Pub. L. No. 99—500, 100 Stat. 1783, Title I, § 101(b) [Title VII, §§ 701-05 (1986)]
    and amended by Pub. L. No. 99—591, 100 Stat. 3341-75, Title I, §101(b) [Title VII, §§ 701-705] (1986)
  • 1990: Crime Control Act of 1990, Pub. L. No. 101–647, 104 Stat. 4789, Title III, § 323(a), (b) (1990), aka, “Child Protection
    Restoration and Penalties Enhancement Act of 1990”
  • 1996: Child Pornography Prevention Act of 1996 (CPPA)
  • 2004: 28 U.S.C. § 994(a) (as amended by § 401 of the Prosecutorial Remedies and Other Tools to End the Exploitation of
    Children Today Act, Pub. L. No. 108—21, 117 Stat. 650 (2003) (“PROTECT Act”))  [6]

The Child Protection Restoration and Penalties Enhancement Act of 1990 was particularly important because it made mere
possession of child pornography a federal offense (as well as sentence enhancements for CP offenses), as opposed to previous laws
which targeted the production and trafficking of child pornography. [7]

As of March 2015, the following federal child pornography-related crimes, or attempts & conspiracies to commit these crimes, are
all registrable offenses:

  • 18 U.S.C. §2252 (Material Involving the Sexual Exploitation of Minors)
  • 18 U.S.C. §2252A (Material Containing Child Pornography)
  • 18 U.S.C. §2252B (Misleading Domain Names on the Internet)
  • 18 U.S.C. §2252C (Misleading Words or Digital Images on the Internet)
  • 18 U.S.C. §2260 (Production of Sexually Explicit Depictions of a Minor for Importation into the United States)

“I KNOW IT WHEN I SEE IT”—HOW THE FEDERAL STATUTES DEFINE “CHILD PORNOGRAPHY”

In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be
indefinable. I have reached the conclusion…that, under the First and Fourteenth Amendments, criminal laws in this area are
constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be
embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…

—Supreme Court Justice Potter Stewart [8]

In 1964, as the “Sexual Revolution” was emerging in America, Justice Stewart proclaimed he would know “pornography” if he saw
it. In the years that followed, pornography would become more prevalent, causing alarm in some members of society. Pornography
and obscenity as a cause for sexual deviancy became a primary focus in the 1970s, and a number of “unconfirmed” statistics were
cited to justify this fear [9] and, as previously noted, Congress determined that child pornography causes harm to children and
society in general, thus justifying the need for tough penalties for CP offenses.

But would any of us would really know “child pornography” when you see it? If you saw a video of a four-year-old child being
raped, there would be no question you are viewing CP. Is a nude picture always CP? Are pictures families may take of their babies
playing in the bathtub, pictures like the famous “Napalm Girl” picture from the Vietnam War, or pictures from nudist colonies
considered CP? Would possessing a reproduction of a picture of a nude prepubescent Brooke Shields, legal at the time it was taken,
be considered CP today? Can pictures be considered CP even if the subject is clothed? The answer to these questions is not as easily
answered as one might expect. The place to start answering these questions is the US Code.

The US Code, current as of October 2014, defines “child pornography” as “any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image or picture, 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 a digital image, computer image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted,
or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” [10]

“Sexually explicit conduct” as it relates to CP is defined as —“(i) graphic sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the
genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality;(II) masturbation; or (III)
sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.” [11]

“Lascivious” is defined as, “tending to excite lust; lewd; Indecent; obscene; relating to sexual impurity; tending to deprave the morals
in respect to sexual relations.” [
12] As we will discuss below, nudity alone is not a prerequisite for determining if an image is
lascivious.

“‘Visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable
of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any
means, whether or not stored in a permanent format.” [13]

The US Code section which criminalizes possession of child pornography reads as follows:

“[Any person who] knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films,
video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any
means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using
materials which have been mailed or so shipped or transported, by any means including by computer, if—(i) the producing of such
visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.” [14]

Up to this point, the US Code essentially defines possession of CP as any “visual depiction” of a “real child” engaging in “sexually
explicit conduct.” Efforts have been made since the mid-1990s, however, to expand the definition to include “simulated” or “virtual”
child porn. In 1996, Congress passed the Child Pornography Prevention Act of 1996 (CPPA), which criminalized visual depictions of
children engaged in sexually explicit conduct, regardless of whether real children are involved in the production of those images.
More specifically, an image was considered CP if it "appears to be of a minor engaging in sexually explicit conduct" or 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.” [15] “The regulation direction shifted from defining child pornography in
terms of the harm inflicted upon real children to a determination that child pornography was evil in and of itself, whether it involved
real children or not.” [16]

The CPPA was challenged by a group calling itself the Free Speech Coalition, and in 2001, the case was argued before the US
Supreme Court (SCOTUS). In 2002, SCOTUS ruled the CPPA was unconstitutional and overbroad. Materials that were not
prohibited under the Miller obscenity standard were declared illegal under CPPA. SCOTUS also ruled that virtual CP does not violate
the Ferber standards because it “records no crime and creates no victims by its production. Virtual child pornography is not
‘intrinsically related’ to the sexual abuse of children.” On the subject of being overbroad, SCOTUS noted, “Even if a film contains no
sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that
such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted.” [17]  

After SCOTUS ruled CPPA unconstitutional and overbroad, Congress responded by passing the PROTECT Act of 2003,[18] which,
in addition to increasing penalties for sex offenders and creating AMBER Alerts, reintroduced at least some the provisions of the
CPPA that were struck down by SCOTUS in the Ashcroft v. Free Speech Coalition decision. The current provisions in the US Code
allow prosecutions for “computer generated” child porn that is “indistinguishable” from an actual child or if an image is “created,
adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” [19] The PROTECT Act was
justified on the basis that the Ashcroft case led to a flood of defenses in CP offenses proclaiming the CP images in question cannot
be proven to be actual children.

An “obscene visual representation of the sexual abuse of children” is, as of March 2015, defined in the US Code as “depict[ing] a
minor engaging in sexually explicit conduct,” and is “obscene;” or it “depicts an image that is, or appears to be, of a minor engaging
in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite sex,” and “lacks serious literary, artistic, political, or scientific value.” In
addition, it is not required to prove that the child depicted actually exists. [20] However, “obscenity” is NOT “child pornography,”
and unlike CP-related offenses, is not necessarily a registrable offense (though, as shown in some court cases below, someone
convicted under obscenity laws can be subject to sex offender treatment and evaluation).

A ruling in 2008 by SCOTUS seemingly contradicts the Ashcroft decision. In US v Williams, [21] Williams argued that the
PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the “pandering” of
material as child pornography, even if the material is not in fact child pornography. SCOTUS, in a 7-2 decision, disagreed, noting “an
offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the
speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not
true that this means ‘a protected category of expression [will] inevitably be suppressed.’ Simulated child pornography will be as
available as ever.”

LEGAL STANDARDS FOR DETERMINING CHILD PORNOGRAPHY

Up to this point, I have discussed the Federal Statutes, but how do courts determine whether an image in question violates the federal
child pornography law?

The Dost Test was created in the US District Court case US v. Dost. The decision created a six-prong test to determine whether an
image is child pornography:

“Instead this Court feels that, in determining whether a visual depiction of a minor constitutes a ‘lascivious exhibition of the genitals
or pubic area’ under § 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the
particular case:

  1. Whether the focal point of the visual depiction is on the child's genitalia or pubic area;
  2. Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual
    activity;
  3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
  4. Whether the child is fully or partially clothed, or nude;
  5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
  6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Of course, a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of the genitals or pubic area.’ The
determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.

For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed.
Whether this visual depiction contains a "lascivious exhibition of the genitals" will depend on other aspects of the photograph. If, for
example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely
constitute a lascivious exhibition of the genitals. The combined effect of the setting, attire, pose, and emphasis on the genitals is
designed to elicit a sexual response in the viewer, albeit perhaps not the ‘average viewer’, but perhaps in the pedophile viewer. On the
other hand, if the girl is wearing clothing appropriate for her age and is sitting in an ordinary way for her age, the visual depiction
may not constitute a ‘lascivious exhibition’ of the genitals, despite the fact that the genitals are visible.”[22]  

Forensic computer analyst Chad Steel notes that not all elements need be present for an image to be considered child porn under
Dost. Also, the difference between child erotica and child pornography is not always apparent. [
23]

Amy Adler, a law professor at NYU, pointed out one fatal flaw with the Dost Test. The Dost Test creates an interesting paradox by
requiring people to adopt a “pedophilic gaze,” sexualizing children in order to determine whether an image is indeed child pornography:

“What does it do to children to protect them by looking at them as a pedophile would, to linger over depictions of their genitals, and
what does it to do us as adults to ask these questions when we look at pictures of children?" Said Adler, "As everything becomes
child pornography in the eyes of the law—clothed children, coy children, children in settings where children are found—perhaps
children themselves become pornographic.”[24]  

Even if an image passes the “Dost Test,” an image may still violate the “Miller Obscenity Test.” The Miller test [
25] is tripartite; an
image is considered obscene if the following conditions apply:

  1. If ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to
    ‘prurient interest;’
  2. If the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
    and
  3. If the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

While the Dost and Miller standards are by no means universal, [
26] they are the standards most often used by the courts. Thus,
courts have great discretion in deciding if an image violates either standard. This is especially problematic because it requires the
judge to “think like a pervert.” Of course, it is just as possible judges or juries are basing decisions on whether or not the images
makes the judges or jurists feel uncomfortable based on personal views on decency.

THE USE (AND ABUSE) OF THE TANNER SCALE

The Tanner scale deserves a special mention because expert testimony used to attempt to determine the age of individuals whose
identities are unknown. The Tanner Scale, published in 1969 by Dr. James Tanner and a colleague, describes five stages in the
development of male and female sexual characteristics such as the shape of breasts and presence of pubic hair. Stage 1 represents
the prepubescent child, and Stage 5 depicts the typical adult. The problem with reliance on the Tanner scale is the difference between
Stage 4 and Stage 5, as “experts” relying on the Tanner scale have assumed every person reaches Stage 5 at age 18. [
27]

In 1998, Dr. Tanner (the creator of the Tanner Scale) and Dr. Rosenbloom wrote a letter to the editor in the publication Pediatrics
warning against the misuse of the Tanner Scale; the scale was intended to identify “early and late maturers” for medical, educational,
and sports purposes, not determining chronological age. The doctors warned that using the Tanner scale for determining
chronological age is “a wholly illegitimate use of Tanner staging: no equations exist estimating age from stage, and even if they did,
the degree of unreliability in the staging the independent variable would introduce large errors into the estimation of age, the
dependent variable. Furthermore, the unreliability of the stage rating is increased to an unknown degree by improperly performed
staging, that is, not at a clinical examination but through non-standardized and, thus, unsuitable photographs.” [28]

A 2012 study published in the journal “Pediatrics” addressed the difficulty in using the Tanner scale to determine chronological age.
In this study, four forensic investigators were shown a total of 547 images, all taken from Playboy magazine’s centerfolds from
1953 to 2007. (It is noted that Playboy magazine keeps meticulous records on age, thus every picture in the study were verified to be
over age 18.) At least 17 of these photos were considered underage (“Tanner Stage 4/ TS 4”) by the four investigators; a total of 145
of the photos (26.5%) were determined underage by at least one expert to be of an underage girl. The researchers noted that a
number of individuals called to testify as witnesses believe that TS5 equals a mature, 18 year old adult. Yet, other studies by Tanner
had found that some people bypass TS4 altogether, and the bodies of others show TS4 characteristics after reaching TS5. The study
concluded that adults can be either a TS 4 or a TS 5, and thus using the Tanner scale as a measure of deciding the age of the person
depicted in an image is improper. [
29]

Federal Rules of Evidence, Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.” Courts have continued to consider individuals that have experience in a field of study to be sufficient as expert
testimony. [
30] Sadly, the “experts” have been given too much value in regards to the use of the Tanner scale or simply determining
the age of an unknown person in an unknown image.

EVOLUTION OF LANDMARK CHILD PORNOGRAPHY COURT DECISIONS

The history of child pornography laws is a short history, and many of these decisions have already been discussed above. However,
looking at this short compendium of landmark court decisions is important for understanding what one would expect when facing a
child pornography charge in the courts. One point that may stand out in the course of reading these decisions is the vacillating nature
of each landmark decision. These decisions merely add to the confusion when trying to determine just what constitutes “child
pornography.”

New York v. Ferber, 458 U.S. 747 (1982): Banning CP apart from Miller obscenity standards

In
New York v. Ferber, [31] SCOTUS determined in a 9-0 ruling that the 1st Amendment did not prevent states from banning the sale
of child pornography. The Court determined that child pornography can be banned without being deemed obscene under the Miller
standard for five reasons:

  1. The government has a “very compelling interest” in preventing the sexual exploitation of children.
  2. Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children.
    The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of
    distributing such images if it is to be able to eliminate the production of child pornography.
  3. Advertising and selling child pornography provides an economic motive for producing child pornography.
  4. Visual depictions of children engaged in sexual activity have negligible artistic value.
  5. Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court's prior
    decisions limiting the banning of materials deemed "obscene" as previously defined by the Court. For this reason, child
    pornography need not be legally obscene before being outlawed. [32]

Osborne v. Ohio, 495 U.S. 103 (1990): “Mere possession” of CP outlawed

The 1990 decision
Osborne v. Ohio [33] extended the ability of states to ban child pornography beyond production to outlawing
“mere possession.” The majority opinion ruled, “Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has
enacted its law on the basis of its compelling interests in protecting the physical and psychological wellbeing of minors and in
destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials.
Moreover, Ohio's ban encourages possessors to destroy such materials, which permanently record the victim's abuse and thus may
haunt him for years to come, and which, available evidence suggests, may be used by pedophiles to seduce other children.”

Unlike the Ferber decision, the Osborne decision was not unanimous. The dissent, written by Justice Brennan (with Justices Marshall
and Stevens joining in dissent), invoked
Stanley v. Georgia [34], which prohibited possession of adult pornography pictures in one’s
own home. The dissent also found Ohio’s statutes “overbroad;” “nudity alone” does not place otherwise protected material outside
the mantle of the First Amendment.

Jacobson v. United States, 503 U.S. 540 (1992): A case of entrapment using CP materials

The 1992 case
Jacobson v. United States [35] is an important case because it involved “entrapment” or “sting” operations, an issue
that is increasingly associated with child pornography cases. In a 5-4 decision, SCOTUS overturned a criminal conviction for a man
who, after being solicited by undercover agents repeatedly by mail for two and a half years, was arrested for finally breaking down
and accepting some magazines in the mail advertised to depict underage boys.

The Majority opinion (written by Justice White) determined in
Jacobson the Government overstepped the line between setting a trap
for the "unwary innocent" and the "unwary criminal," failing to prove the defendant was predisposed to crime. In fact, it was
determined the government’s constant advertisement of illegal materials over the course of 26 months of continuous mailing was the
cause of the defendant’s only purpose of giving in to the proposition to receive illegal materials. (“When petitioner was asked at trial
why he placed such an order, he explained that the Government had succeeded in piquing his curiosity.”) The government had
targeted Jacobson because he had paid for explicit images that were once legal, but once child pornography laws made obtaining
such photographs illegal, Jacobson stopped buying the images until the government pressured him into buying more. Finally, the
Court recognized the government pressured Jacobson to accept illegal images under the guise of fighting censorship and the
infringement of individual rights.

The dissenting opinion, written by Justice O’Connor, attempted to justify the lengthy time of entrapment because “cold calling”
individuals by sending explicit materials from the beginning would “not only risk rebuff and suspicion, but might also shock and
offend the uninitiated, or expose minors to suggestive materials.” Instead, Jacobson was sent a series of questionnaires that led police
to believe Jacobson was interested in viewing sexual images of pre-teens. The dissenters denied the correspondence from
government agents promoted engaging in illegal activity in any way in this case. The dissenters argued that this decision would hinder
sting operations by essentially requiring a finding of “reasonable suspicion” before police could even conduct an investigation.

US v. Knox, 32 F.3d 733 (1994): Even fully clothed minors can be considered CP

In
US v. Knox, [36] the Third Circuit Court of Appeals ruled the federal child pornography statute “contains no nudity or
discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as ‘lascivious
exhibitions,’ and that this construction does not render the statute unconstitutionally overbroad.” Since “lascivious” meant lewd or
arousing sexual lust, the Court determined images were judged by whether the image in question “provides considerable interest and
excitement for the pedophile observer,” not on the presence (or absence) of nudity. The Court reasoned that “[c]hildren posing for
pornographic pictures may suffer dramatic harm regardless of whether they have an ‘adult’ look of sexual invitation or coyness on
their face.” This justifies the broad interpretation of lascivious in the eyes of the Court.

The Court reasoned, “In several sequences, the minor subjects, clad only in very tight leotards, panties, or bathing suits, were shown
specifically spreading or extending their legs to make their genital and pubic region entirely visible to the viewer. In some of these
poses, the child subject was shown dancing or gyrating in a fashion indicative of adult sexual relations. Nearly all of these scenes
were shot in an outdoor playground or park setting where children are normally found. Although none of these factors is alone
dispositive, the totality of these factors lead us to conclude that the minor subjects were engaged in conduct — namely, the exhibition
of their genitals or pubic area — which would appeal to the lascivious interest of an audience of pedophiles.”

This case was granted certiorari by STOTUS and remanded to the Third Circuit, but was denied a subsequent writ of certiorari after
the Third Circuit reaffirmed their original decision.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002): “Virtual CP” is not prohibited

The Child Pornography Prevention Act of 1996 (CPPA) prohibited “any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit
conduct,” and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that
conveys the impression” it depicts “a minor engaging in sexually explicit conduct.” An adult-entertainment group known as the “Free
Speech Coalition” challenged the CPPA, arguing that virtual images did not meet the Miller obscenity standard or the Ferber child
porn standards (because no actual children were used in the making of virtual CP).

In
Ashcroft v. Free Speech Coalition, [37] SCOTUS ruled 6-3 in favor of the Free Speech Coalition; the Court ruled that the CPPA
extended prohibited speech well beyond the Miller and Ferber standards. The CPPA prohibited speech that may have artistic value
(such as scenes from “Romeo and Juliet” or modern films like “American Beauty”), as “the redeeming value” of works are taken as a
whole under Miller.

The Court also determined the CPPA does not meet the Ferber standard because virtual CP “records no crime and creates no victims
by its production.”  The Court stated, “Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children. While
the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The
harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.”

The prohibition of CP in
Ferber is based on how it is created, not on what was communicated, nor does Ferber claim CP lacks any
value. “The contention that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs
afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children
from it… The argument that eliminating the market for pornography produced using real children necessitates a prohibition on virtual
images as well is somewhat implausible because few pornographers would risk prosecution for abusing real children if fictional,
computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the
CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that,
because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of
images must be prohibited. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial
amount of protected speech is prohibited or chilled in the process.”

In short, CPPA was held to be unconstitutionally overbroad. CPPA violated Miller because it prohibited speech that has “redeeming”
value as opposed to appealing to prurient interests. CPPA violated Ferber because no actual victims are created by the production of
virtual CP, and because the Government failed to make a compelling argument that viewing virtual CP necessarily leads to sexual
abuse. Finally, CPPA was overbroad for prohibiting virtual CP simply because it is hard to distinguish virtual CP from actual CP.

The dissenting view, written be Rehnquist, argued CPPA only banned “hard core… child pornography” already banned in Ferber, not
“mere suggestions of sexual activity.” Rehnquist considered CPPA as an “anti-pandering” provision.

There is one important point to discuss regarding the
Ashcroft v. Free Speech Coalition decision. The Court recognized that
obscenity is judged in the court by “contemporary community standards.” This means cultural factors unique to a geographical
region could play a key role in deciding obscenity cases.

United States v. Williams, 553 U.S. 285 (2008): Even claims of possessing CP can lead to conviction

Upon first glance, it seems that the
US v. Williams [38]  decision contradicts the earlier Ashcroft case. However, the issue in
Williams is the act of “pandering” (in this case, promoting or advertising an image “in a manner that reflects the belief” that the image
is CP). The Court upheld Williams’s conviction 7-2.

The majority opinion stated, “Rather than targeting the underlying material, this statute bans the collateral speech that introduces such
material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover
agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child
pornography as depicting actual children also falls within the reach of the statute… The statement or action must objectively manifest
a belief that the material is child pornography; a mere belief, without an accompanying statement or action that would lead a
reasonable person to understand that the defendant holds that belief, is insufficient.” Offers to engage in illegal activity are not
protected by the 1st Amendment, even if the illegal activity is not “commercial” activity.

It should be noted that if a person sells a legal substance, such as powdered headache medicine, while claiming it is an illegal drug,
that person can be charged with a crime. [39]  The principle behind the Williams case is the same.

The dissenting opinion, written by Justice Souter, accused the majority of contradicting or at least diluting the Free Speech Coalition
decision. In the dissenting view, an exception to the “real child” requirement in the Free Speech Coalition decision has already been
created.

NON-LANDMARK CASES OF NOTE

Although this report is focusing on major developments in the child pornography statutes, a couple of lower court decisions should
be mentioned because these cases have helped lead to some confusion in determining what images constitute child pornography.

Shields v. Gross, 58 N.Y.2d 338, 448 N.E.2d 108, 461 N.Y.S.2d 254, 9 Media L. Rep. 1466 (N.Y. 1983): When a picture of a nude
child isn’t considered Child pornography

Famous actress Brooke Shields had already been immersed in controversy from the film “Pretty Baby,” but it was a photospread
involving a 10-year-old Shields that landed in court, though not for issues of pornography or obscenity. In 1975, Shields posed for
“Portfolio 8/ Sugar n’ Spice,” a Playboy publication, and some of the photos feature full-frontal nudity. Shields sued the
photographer, Garry Gross, in 1983 in order to try to wrest control of the photographs as they were being republished in other
outlets.

It is important to mention the court “noted that plaintiff did not contend that the photographs were obscene or pornographic. Her
only complaint was that she was embarrassed because "they [the photographs] are not me now." The trial court specifically found
that the photographs were not pornographic and it enjoined use of them in pornographic publications.” Thus, the issue at the heart of
the case was not whether the photos were considered CP or obscenity; the issue was control over the use of the photos and consent
to republish the photos. Both Brooke Shields and her legal guardian signed full consent forms, and thus the court ruled in favor of
Gross. [40]

While the Brooke Shields nude photos were considered “non-pornographic” by court standards in 1983, the Brooke Shields photos
have sparked controversy as recently as 2009. A showing of one of Brooke’s nude photos (now known as ‘Spiritual America”) at
London's Tate Modern museum was scheduled as part of “Pop Life: Art in a Material World,” an exhibit on works by artists that
used art to “shock the world.” However, public outrage ensued; protesters called the photo “bordering on child pornography,”
“exploitative,” “obscene,” and a “magnet for pedophiles.” [41]  The museum responded by stating they were shocked by the outrage;
“Spiritual America” was shown at New York’s Guggenheim Museum in 2007 without complaint. [42]

City of Cincinnati v. Contemporary Arts Center, 57 Ohio Misc.2d 9 (Ohio Misc. 1990), 57 Ohio Misc.2d 15, 566 N.E.2d 214, Ohio
Mun. 1990: The Robert Mapplethorpe Obscenity Case

The case revolved around a set of photographs by artist Robert Mapplethorpe involving a nude male and female, both under age 18.
The Hamilton County Municipal Court concluded the museum is not exempt from obscenity laws. [43] Later, the same Court
determined that despite the phrase “taken as a whole” in the obscenity law, each image in question should be subjected to obscenity
tests individually, rather than in the context of the art exhibit as a whole. In other words, each individual image constitutes a “whole.”
This is important because this helps explain how an individual can amass numerous charges even for a single film, book, or other
display. The case went to trial, and both the museum and the curator were found not guilty of violating obscenity laws. [44]

US v. Whorley, 550 F. 3d 326 - Court of Appeals, 4th Circuit 2008: Drawn images and explicit emails

The case of
US v Whorley [45] involves 75 total charges—charges 1-20 were for “receiving” 20 “manga cartoons” depicting explicit
sexual acts between prepubescent children and adults; counts 21-40 were charges of downloading obscene materials as someone
with a previous conviction for CP (thus Whorley was charged two times for the same image); counts 41-55 were for receiving
lascivious images of real, naked children; counts 56-75 were related to “obscene” emails of words (no pictures) of individuals
describing molestation stories. Whorley was convicted of 74 of the 75 counts (one of the real images could not be proven to be an
image of a minor).

The 4th Circuit upheld the conviction. In relation to the drawn images and explicit emails, the Court reasoned that the protection of
Stanley v. Georgia, [46]  which allowed for “mere possession” of obscene material in one’s own home, did not apply in Whorley
because Stanley did not extend to “receiving” images “using instruments of commerce,” merely “possessing” obscene materials. The
Court also noted the Miller decision used the term “works,” and a similar case decided by SCOTUS interpreted works as “both
pictorial representations and words.” [47]  

The PROTECT Act, written in response to the
Ashcroft v. Free Speech Coalition case, had rewritten USC § 1466A to prohibit “a
visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” adding “[i]t is not a required element of any
offense under this section that the minor depicted actually exist.” The PROTECT Act is not a complete circumvention of the Free
Speech Coalition case; only “obscene” visual depictions of minors.

Justice Gregory dissented in part because he disagreed that Whorley should have been prosecuted for counts 21-40 (as the anime
characters were obviously not real children) and counts 56-75 (as the emails constituted “free speech”).

US v. Handley, 564 F. Supp. 2d 996 (S.D. Iowa 2008): Lolicon collection leads to jail time

In many ways, the court case US v. Handley [48] mirrored the Whorley case. The Handley case involved drawn images; in this case,
“lolicon” (Japanese manga images of prepubescent children, often in sexualized form). The Handley case also involved obscenity
charges. Like Whorley, the Handley Court also concluded the Stanley decision protecting private possession of obscene materials did
not extend to “interstate commerce” of the material.

The
Handley case involved a more sympathetic person than the Whorley case. Handley was merely a collector of manga, had no
criminal record, had a career in the military and in technology, and when the police raided his home, they failed to find any actual
child pornography. The lolicon was only a small fraction of his massive manga collection. Handley “received or possessed more than
150 but less than 300 such images in total. Not 150 to 300 magazines, but cartoon pages with one or more panels or individual jpgs.”
[49]  In other words, a few manga comics led to multiple charges as each individual frame, rather than the publication as a whole,
constituted a charge. It should have been obvious that Handley was not interested in children or exhibited signs of pedophilia.

The
Handley court diverged from the Whorley court in finding USC § 1466A subsections (a)(2) and (b)(2) overbroad and thus
invalid. “The observable differences between these subsections are (1) subsections 1466A(a)(1) and (b)(1) incorporate the Miller test
as essential elements, whereas subsections 1466A(a)(2) and (b)(2) do not; (2) subsections 1466A(a)(2) and (b)(2) include the
‘appears to be’ language in relation to ‘a minor;’ and (3) subsections 1466A(a)(1) and (b)(1) encompass a broader list of sexually
explicit conduct. Subsections 1466A(a)(2) and (b)(2) are not subject to a limiting construction that would avoid the constitutional
problem of prohibiting images that neither involve the use of actual minors or constitute obscenity.”

A 2011 case involving a Maine man arrested for having lolicon was dismissed because it did not violate Maine Law. [50]  However,
in 2012, a Missouri man pleaded guilty for possessing cartoons depicting “incest porn.” He pleaded to a charge of obscenity in
exchange for dropping the child pornography charge. [51]

US v. Kutzner, No. CR-10-0252-S-EJL (D. Id. 2010): The “Simpsons Porn” case

Kutzner, like Whorley, involved more than simply drawings. However, this case stands out because of the nature of the drawings,
particularly cartoon drawings of characters from the cartoon show “The Simpsons” engaged in a variety of sexual activities which
involved the siblings Bart, Lisa and Maggie.

According to the “Government’s Sentencing Memorandum,” [52] Steven Kutzner pled guilty to possessing obscene visual
representations of the sexual abuse of children in violation of 18 U.S.C. § 1466A(a)(2). Kutzner admitted he had downloaded CP in
the past but because he used a hard drive wiping software service, it could not be proven and the charge of possessing child porn
was dropped. Kutzner also had 524 images of nude females appearing to be teens, though the ages could not be determined (and
none were prepubescent), so none could be identified as CP.

The Sentencing Memorandum also determined, “Kutzner’s computer also contained more than eight-thousand files containing images
child erotica involving younger children, many of them prepubescent. “Child erotica” refers to non-nude or semi-nude photographs
and videos of children in sexually suggestive poses that are not themselves images of child pornography, but still fuel the sexual
fantasies of pedophiles and others who have developed a sexual interest in minors… These images are not cartoons. They depict real
children in poses that a person with a sexual interest in minors would likely find sexually provocative. The fact that Kutzner saved
images like these, that skirt the edge of what the law defines as a lascivious display of the genitals or pubic area, in such large
quantities strongly suggest that Kutzner has a sexual interest in prepubescent female children.”

Fortunately for Kutzner, he not only evaded CP charges be destroying the files using Eraser and CCleaner, he was fortunate to only
be charged with possession of obscenity rather than receiving, which would have given Kutzner a harsher sentence. Under a plea
agreement, Kutzner received 15 months in federal prison, three years of supervised release, and must participate in a sex offender
evaluation and treatment. [53]  Thus, Kutzner was indeed convicted for “The Simpsons” porn, but as obscenity, not child porn.

US v. Simon-Timmerman, Criminal No. 09-296 (FAB): Porn star saves man from CP charge

It is doubtful this case will make the cut for a Law & Order “ripped from the headlines” episode, but it should. Simon-Timmerman
was arrested for possession of child porn for possessing three DVDs of well-known porn star “Little Lupe.” During the trial, both
ICE Special Agent Alek Pacheco and a pediatrician (Dr. Pedro Juanarena) testified that they believed without doubt Little Lupe was
under 18 (the Agent estimated Little Lupe’s age as 13-14). It is apparent that the prosecution witnesses used the Tanner scale to
estimate Little Lupe’s age. [54]  In a rare instance of diligence from a public defender, Simon-Timmerman’s attorney tracked down
Little Lupe. The prosecutor, Jenifer Yois Hernandez-Vega, demanded Little Lupe testify in person, so the actress flew from
Venezuela to Puerto Rico to testify in court. (Perhaps the prosecutor hoped the actress would not appear). After showing proof of
age, the case was dismissed. [55]

New Jersey man placed on public registry for making simulated image of teen in a sex act

Details on this case are scarce, but the Cliffview Pilot reported in 2015 that a 35 year old man pleaded guilty to third-degree child
endangerment for what an Assistant Bergen County Prosecutor called “sexualization of a minor.” The man had photoshopped a
teenage girl into pictures of the man and his wife having sex to make it look like they were having a threesome. Because the teen was
not nude, the man only charged with “child endangerment” and the greater charges of “inducing a minor to simulate a sex act” was
dropped. [56]  The article is confusing because it states the man was not charged with CP, yet the article later states the man had
“100 images” of CP, which, the article states, included the fully clothed image of the photoshopped teen; the man’s registry flier also
states he possessed “child pornography.” It seems the confusion over the definition of what constitutes child pornography came into
play in this case.

State of Tennessee v. Thomas Whited, E2013-02523-SC-R11-CD (TN Sup Ct, Nov. 7, 2016): Secreting Videotaping Teens
Undressing is not CP under state law

In a November 2016 court decision, the Tennessee Supreme Court reversed and remanded the sentence of a man who was
sentenced to 22 years for secretly videotaping teenagers while they undressed. Unlike other states' statutes, Tennessee's statutes do
not take intent of act into account, only whether the images themselves are lascivious in nature (i.e., depicting sexual activity). Since
the pictures lacked lasciviousness, the charge for CP was invalid:

"In assessing whether material is prohibited under these statutes, we reject the use of the Dost factors as a ―test‖ or an analytical
framework. The material at issue must be evaluated based on what is depicted, without reference to the defendant‘s subjective intent,
because the Tennessee statutes on the production of child pornography do not include the accused‘s subjective intent or purpose of
experiencing sexual arousal or gratification as an element of the offense. Assessing the surreptitious videos taken by the defendant in
the instant case, we conclude that the videos do not depict a minor engaged in ―sexual activity,‖ defined by statute as the lascivious
exhibition of a minor‘s private body areas. For this reason, the videos are insufficient to support the defendant‘s convictions for
especially aggravated child sexual exploitation."

THE DIFFICULTY IN DEFINING POSSESSION OF CHILD PORNOGRAPHY

It doesn’t surprise me that things like this still happen. It’s all in the eye of the beholder. What one person thinks is pornographic or
suspicious, to another person, it’s nothing.
” – Marian Rubin, Retired New Jersey social worker false accused of CP in 2000 for
taking innocent pics of her kids playing in a bathtub [57]

Supreme Court Justice Potter Stewart proclaimed he would know child pornography when he sees it, but since it is illegal to even see
child porn in the first place, how do we know if an image is of child pornography (a registerable offense), obscenity (illegal but not a
registerable offense), or “child erotica” (not illegal)? The only people legally allowed to view possible child pornography in the US are
law enforcement agents, attorneys, or, in some cases, juries during trials. Only on rare occasions have journalists and legal scholars
have ever been granted access to images the FBI or law enforcement agencies have considered child pornography, further
complicating the effort to understand exactly what constitutes “child pornography.” Even the suggestion that child pornography
should be studied is taboo, and as a result, studies on the true extent of child pornography in the US are extremely limited. This taboo
is also unique because evidence of other crimes can be viewed by members of the public, even acts of murder, and when people
write about other crimes like serial killers, there is no need to explain that the author does not condone or support the actions of the
subjects of the work. [58]

This iconoclastic approach to child pornography can even interfere with providing an adequate defense. In 2012, an Ohio defense
attorney was forced to pay $300,000 in damages for photoshopping pictures of two children from “stock photos” in an attempt to
illustrate the complexity of the child pornography statutes. In February 2004, Dean Boland downloaded images of two identifiable
children, given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation, from a stock photography website. See
Doe v. Boland, 630 F.3d 491, 493 (6th Cir. 2011). Boland digitally manipulated (“morphed”) the photographs to make it look like the
children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating a doughnut; Boland replaced the doughnut with
a penis. In another, he placed six-yearold Jane Doe’s face onto the body of a nude woman performing sexual acts with two men. In
March and April 2004, Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal
criminal trial in Oklahoma involving child pornography. He displayed “before-and-after” versions of the images, testifying that it
would be “impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor.” [59]  

The 6th Circuit Court ruled that the attorney was not immune from liability because they minors suffered a “personal injury.” “‘Like a
defamatory statement,’ pornography injures a child’s ‘reputation and emotional well-being,’ and violates ‘the individual interest in
avoiding disclosure of personal matters.’” [60]

The 6th Circuit Court also notes the Federal Child Pornography statute offers a unique interpretation of “personal injury” regarding
recovery for damages. “Section 2255 requires that a person be a minor when she is the victim of a sex crime, but allows that person
to recover when she incurs an injury, ‘regardless of whether the injury occurred while such person was a minor.’ In this instance,
the plaintiffs became victims of Boland’s conduct at the same time that they suffered injuries, namely the moment Boland created the
morphed images with their likenesses. But victimhood and injury need not occur simultaneously. A child abused through a
pornographic video might have one § 2255 claim against the video’s creator as soon as it is produced and another against the
distributor who sells a copy of the video twenty years later…” The definition of “actual damages” under the Federal Child Porn
statutes is also unique from other torts. “Boland separately argues that § 2255 requires victims of child pornography to show that
they incurred ‘actual damages,’ and plaintiffs offer no evidence of any such damages. Most tort plaintiffs, it is true, must show the
amount of their damages. But § 2255 is no ordinary cause of action. The statute declares that any victim ‘shall be deemed to have
sustained damages of no less than $150,000 in value’” [61] Thus, not only is the creation of an image considered victimization no
matter when the pictures are altered, there is a minimum amount of damages awarded to alleged victims.

Central to our iconoclastic approach to child pornography is the claim by the victim industry the images cause irreparable harm to
those in the images by the mere existence of the image itself. An article featuring Ashley Reynolds, an alleged “victim of child
pornography” states the common argument of continuing harm:

“That’s a problem for me, because since first grade, I wanted to be a journalist. My life’s goal has always been to be a news anchor.
And I have to worry about my pictures being out there exposed on the Internet…[I]t’s psychologically damaging. It’s not fair.
People think victims of child pornography are not touched. It’s not like rape. It’s just overlooked. … They don’t realize what we’re
doing when we have to send those pictures. We’re doing it ourselves. We’re forced to. ... We could not say no… You’re
contributing to it [i.e., the demand for child porn]. You can’t be a law-abiding citizen if you’re contributing to extortion.” [62]

This line of reasoning may be appropriate in Reynold’s situation because she was allegedly blackmailed online into taking the pictures
against her will, but this line of reasoning makes far less sense in the numerous cases of teens facing prosecution for taking nude
pictures of themselves or possessing pictures of teens above the age of consent. This creates an interesting dilemma, since only a
dozen states set the age of consent at age 18 as of 2012. [63]

The Human Rights Watch reported one story of a 15 year old charged with “manufacturing and disseminating child pornography for
having taken nude photos of herself and posted them on the internet. She was charged as an adult, and as of 2012 was facing
registration for life. [64] A 2015 story from North Carolina further illustrates the absurdity of applying CP laws to teens taking nude
selfies. Cormega Copening and his girlfriend Brianna Denson sent each other racy pictures. Denson pleaded guilty to lesser charges
and received a year of probation. Copening, however, is still facing two counts of second-degree sexual exploitation and three counts
of third-degree exploitation as of October 2015, with the third-degree charges stemming from Copening taking pictures of himself.
As the Reason.com news blog points out, “The implication is clear: Copening does not own himself, from the standpoint of the law,
and is not free to keep sexually-provocative pictures, even if they depict his own body. But consider this: North Carolina is one of
two states in the country (the other is progressive New York) that considers 16 to be the age of adulthood for criminal purposes.
This means, of course, that Copening can be tried as an adult for exploiting a minor—himself.” [65] Typically, juveniles charged with
crimes are not publicly listed, but because NC charges 16 year olds as adults and adults accused of crimes are publicly disclosed,
Copening faces the unusual position of being charged as an adult for exploiting himself as a child and having his name publicly
disseminated.

If our iconoclastic approach to child pornography confounds legal scholars and journalists, then the general public cannot be
expected to “know” child pornography when they “see” it. In 2007, the Demarees brought vacation photos into a local Wal-Mart for
development; some of the images were innocent pictures of the Demarees’ toddlers playing nude in a bathtub. The Wal-Mart
employee called the police and the Demarees were placed under investigation for child pornography. The children were removed
from the home for over a month, the Demarees were even placed on a sex offender registry, and Mrs. Demaree was suspended from
her job at a school. Ultimately, a Superior Court judge ruled in favor of the Demarees. They sued both the government and Wal-Mart,
[
66] though ultimately they lost their case as the 9th Circuit granted summary judgment to the Defendants. The 9th Circuit ruled that
people reporting suspected child abuse without showing malice is immune from liability. [
67]

Sadly, these stories are not isolated incidents conjured by overzealous law enforcement agents; these stories have existed since the
passage of legislation outlawing child pornography in America. James Kinkaid, writing for Salon.com in 2000, documented a few
examples as far back as the mid-1980s of innocent people dragged through the mire because someone, be it a photo lab technician or
a law enforcement agent, “knew” they “saw” child pornography. Kinkaid finds the comparison of a photograph of a child as
tantamount to molestation problematic. Kinkaid also shares the view that Amy Adler from NYU discussed regarding the rules that
essentially require a prospective juror or judge to “think like a pedophile.” “Every photo must pass this test: Can we create a sexual
fantasy that includes it?” Kinkaid asks.  “Such directives seem an efficient means for manufacturing a whole nation of pedophiles…
Actually, given that the focus of the law has shifted from the photo to the reaction of the viewer, the wise technician will consult his
or her loins: A turn-on means porn.” The law thus turns everyone into a prospective agent of upholding a “murky” law, and we are
expected to have a mindset of someone who actively fantasizes about having sexual relations with minors. [
68]  

The Internet complicates CP statutes even further by causing confusion to the very concept of “possession.” The federal CP statutes
do not define possession. Possession is legally defined as “The detention and control, or the manual or ideal custody, of anything
which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and
either held personally or by another who exercises it in one's place and name. That condition of facts under which one can exercise
his power over a corporeal thing at his pleasure to the exclusion of all other persons.” [
69] There are various types of “possession,”
but the type of possession most likely to be used to justify CP prosecutions is “constructive possession.” Constructive possession is
defined as, “The legal possession of an object, even if it was not in a person’s direct physical control, often used in criminal law
prosecutions for possession crimes, such as possession of illegal drugs. Generally, for a court to find that a person had constructive
possession of an object, the person must have had knowledge of the object, and as well as the ability to control it. For example,
someone with keys to a safe deposit box may have constructive possession to the contents of that box, and the owner of a car may
have constructive possession of the contents of its trunk.” [
70] We can conclude the act of possession requires both “the knowledge
the object is illegal” and the “ability to control it.”

Of course, when does possession actually begin in regards to the Internet? Giannina Marin explains the complexity of possession
quite well:

“The concept of ‘possession’ seems intuitive when one thinks of a physical object: holding something, touching it, feeling it, having it
physically present. Therefore, mere viewing, even window-shopping, does not constitute possession of what is on the other side of
the glass because one cannot hold it, touch it, or feel it. Even though the legal definition of possession sets forth constraints that limit
this basic idea, the general intuition behind possessing an item does not change. In contrast, the concept of possessing something
digital is more elusive. Looking at materials on a computer screen might seem more like window-shopping than physical interaction
with the materials. However, surfing the Internet involves significant interaction and exchange of information between a user’s
computer and the web servers visited. Furthermore, the user retains a significant level of control over the information on the
computer.” [
71]

No one will argue that “downloading” images onto a storage device or your computer’s hard drive constitutes willing possession of
child pornography, but many people are unaware that computers store website information even after you leave the website.
“Temporary Internet Files is a folder on Microsoft Windows which serves as the browser cache for Internet Explorer to cache pages
and other multimedia content, such as video and audio files, from websites visited by the user. This allows such websites to load
more quickly the next time they are visited.” [
72] This causes a problem because if you stumble across child pornography,
immediately clicking off the page may not be enough. If you accidentally find CP online, immediately click off the entire browser,
run a virus check, clear the cache, and use a drive scrubber like CCleaner or similar programs to wipe the deleted files away
permanently.

Marin argues that “surfing the Internet involves significant interaction and exchange of information between a user’s computer and
the web servers visited. Furthermore, the user retains a significant level of control over the information on the computer,” [73]  but
notes in the article itself “the average computer user does not know how or why the process works.” Even users that have a general
idea of the process’s function and operation might not know how to prevent it. A user needs advanced computer skills to directly
access files in the cache while the computer is offline… Once properly accessed from inside the computer, however, temporary files
are, for all relevant purposes, real files that contain images that can be managed and manipulated like any other file, independent of an
Internet connection. Finally, the cache can be easily deleted through the web browser without any special knowledge, or it can be
deleted as part of routine computer maintenance.” [74]  

Marin argues, “Many courts consider factors such as control, seeking out the image, knowledge, and deletion without detailed
explanations.” [75] As noted earlier, federal CP guidelines list the active attempt to remove offending images from the computer as an
affirmative defense. Marin analyzed
US v. Tucker, [76] in which a man was convicted for knowingly accessing a website and
viewing, but not downloading, child pornography. Marin concludes the courts in Tucker erred because “courts did not consider at all
how the programming of the computer works to store the information to the cache automatically.” The courts erred in concluding
that Tucker’s deleting the cache files gave him “control” over the files as well as the ability to “control” them while they are on the
computer screen. Marin concludes, “Therefore, the court’s conclusion that deletion is definitive evidence of control as—‘one cannot
destroy what one does not possess’ — is flawed.” The courts concluded that Tucker had enough knowledge of the files to control
them, but the ability to destroy a file does not mean one controls it any more than “destroy[ing] any scooter, mailbox, fence or other
car in sight by crashing into it” with your own vehicle does not mean you “possess” every object you destroy. [77]

The Oregon Supreme Court ruled in
State v. Barger [78] in 2011 that it is not a crime to look at child pornography while surfing the
Internet if none of the images are purposefully downloaded, printed out or bought. The Court concluded both the terms “possess”
and “control” meant the same thing, namely, to physically or bodily possess or control something or to exercise dominion or control.
However, the issue was the statute “chose not to criminalize the act of viewing child pornography, unless that act is accompanied by
paying, exchanging, or giving ‘anything’ of value.” “The intangible nature of a web image is analogous to seeing something that a
visitor has temporarily placed in one's own home.  One may be aware of it, may even have asked the visitor to bring it for viewing,
but one does not thereby possess the item… Looking for something on the Internet is like walking into a museum to look at pictures
-- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him
possession of them.” Furthermore, having the ability to control an object does not equate to actually being in control of the item.

Because the Oregon Supreme Court ultimately ruled that the legislature did not add mere viewing CP as a crime into the criminal
code, the Oregon legislature “declared an emergency” and passed SB 803 [
79] on June 24, 2011. In passing SB 803 through the
Senate, State Senator Joanne Verger said on the Senate floor stated, “This bill corrects an oversight and very clearly outlines that
viewing child pornography on the Internet is considered a crime in Oregon. Offenders need to know that there are serious
consequences to their actions. This bill establishes that their behavior will not be tolerated in Oregon.” [
80]

The definition of child pornography can be especially problematic to minors who engage in sexting. While the minimum age in which
one can engage in pornography in America is age 18, 30 states place the age of consent at 16, while 8 more states place the age of
consent at 17. [
81] In 38 states, it is legal to have sex with someone under 18 but illegal in all 50 states to take nude pictures of
someone under 18. There are plenty of cases in which teenagers and young adults just above the age of consent have faced sex
charge and inclusion on the registry, [
82] and many individuals may see the problems this rigid application of the law creates. But in
cases where an individual more than a decade older than his or her  16 or 17 year old lover, the law may be harsher.

In People v. Hollins, [83] the defendant was 32 while his girlfriend was 17, the legal age of consent in the state of Illinois. Hollins
argued that the Illinois CP statute created a conflict because the “child” in the pictures was his 17 year old girlfriend, legally old
enough to have sex with Hollins, and thus ‘does nothing to accomplish the legislative purpose of protecting children from sexual
exploitation and abuse.” The state rejected this argument, stating that “there are rational, reasonable arguments in support of having a
higher age threshold for appearance in pornography than for consent to sexual activity.” The Court argued that the dangers of sexual
activity are “apparent” (STDs, pregnancy, etc.), and most 16 to 17 year olds have been readily exposed to the dangers, whereas “the
dangers of appearing in pornographic photographs or videos are not as readily apparent and can be much more subtle.” Hollins also
argued the enhanced right to privacy and the state’s inability to give adequate warning of the illegality of his act, but was also rejected.

SUMMARY

"Looking at that picture today makes me cringe. It was done in the worst possible taste. Back then I was too immature to see that.
Shame on me — I should have done everything in my power to stop it. The record company came up with the idea, I think… Virgin
Killer is none other than the demon of our time, the less compassionate side of the societies we live in today — brutally trampling
upon the heart and soul of innocence.
” -- Uli Jon Roth, former guitarist for the rock band Scorpions, discussing the cover for the
album “Virgin Killer,” which depicted a nude 10-year-old girl [
84]

To summarize the legal definition of “child pornography” based on this lengthy discussion, it appears any actual child OR image that
is indistinguishable from a real child engaging in graphic (explicit) or lascivious (strongly sexually suggestive) sexual activity is
considered child pornography. In addition, a non-pornographic image may be considered CP if the image is modified to look as if a
child is engaged in illicit sexual activity and the image lacks “serious literary, artistic, political, or scientific value.” If an image is
promoted or advertised in any way that would lead one to believe the image is of child pornography, this is also a violation of the law
(this opens the door to law enforcement entrapment “sting” operations). The prosecutor does not need to prove the image in question
is of an actual child to charge an individual with production or possession of CP. While there is not a universal standard of
determining what constitutes child pornography, most courts use the Dost standard, a six point test, though not all criteria need to be
met for an image to be considered child pornography.

In addition to child pornography laws, a person may be prosecuted under Federal Obscenity laws. Unlike child pornography,
obscenity is not currently a registerable offense in the federal courts (though some states may force those convicted of obscenity
laws to register as a sex offender). The Miller test, a three pronged test, is generally accepted as the standard for determining
whether an image is obscene. Furthermore, there seems to be another category called “child erotica” which is not illegal in itself, but
may be considered paraphernalia to those suspected of sex crimes against children.

Because the federal guidelines (as well as state guidelines) on child pornography are rather vague and a universal standard for
determining an image constitutes child pornography, citizens are left to decide for themselves whether an image is illegal. Because
even the mere viewing of a pornographic image of a minor is considered damaging to the person in the picture and thus a uniquely
inherent evil, the American public has taken an iconoclastic view of such images. As a result, virtually no research can be performed
to study the issue and determine when an image becomes illicit.

We may believe, as Justice Potter, that we will “know child pornography” when we “see it,” since members of law enforcement,
judges, and juries in limited cases can even legally view child pornography, however, we are left to rely on our imaginations. The
rather vague legal tests require us to “think like a pedophile would,” which has led to disastrous results. A number of individuals have
been prosecuted for such actions as taking pictures of their children playing nude in a bathtub or taking a nude selfie while under the
age of 18.

Our iconoclastic approach to questionable imagery stems from the belief that child pornography is in inherent evil by its very
existence, since the existence of CP is considered intrinsically linked to actual child abuse. This approach has also killed the ability to
reason within our court systems; rather than ruling against such vague and blatantly unconstitutional laws, courts seem content with
finding ways to justify the existence of such stringent laws, no matter how asinine the laws have been applied. As a result, our courts
have had to struggle with prosecuting parents taking pictures of their children in the bathtub, sexting teens, or even people with
images of iconic cartoon characters having sexual relations with each other.

Ultimately, an entire generation of child pornography laws has failed to create a dividing line between truly damaging pictures and
innocent pictures or artistic expressions. Instead, we have created an environment that places even the viewing of an image on the
same level (or even a higher than) a hands-on offense. Hopefully this article will inspire future reforms to this complex issue.

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