Sight Crime: The Complexity of Federal Child Pornography & Obscenity Laws
Derek W. Logue
30 Nov. 2015; Updated 25 May 2020

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. This report is merely to prove a point and should not be used as a substitute for legal advice. 

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. [2Under 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, [31SCOTUS 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 overutned a state law prohibiting 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 focuses 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 Whorleyinvolved 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 CP, 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]

Bellotte v. Edwards, 629 F.3d 415, 424 (4th Cir. 2011)

This case is a complaint over excessive force but is mentioned here because a no-knock raid was conducted on the basis of suspicion of CP production.  

“On May 31, 2007, Sam Bellotte printed some photographs from a memory card at a self-service station in a Winchester, Virginia Wal-Mart. When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store. The Wal-Mart employees charged with discarding the photos noticed one depicting male genitalia seemingly next to a child’s face…

The SORT Team leaders decided that their involvement was justified due to the possibility of a violent reaction from Mr. Bellotte and the concealed carry permits held by both Mr. and Mrs. Bellotte. After the three SORT squads were assembled and briefed, they arrived at the Bellotte residence around 10:15 p.m. The three squads took positions around the house, wearing tactical vests and helmets and armed with flashlight-equipped.45 caliber Sig Sauer pistols and “hooligan” pry bars for a possible forced entry. Then, the Bellottes claim, the SORT squads opened the unlocked front and rear doors without knocking or announcing their presence…

Mr. Bellotte, it turns out, had spent that night in his hunting cabin in Hampshire County, West Virginia. The next morning, when his wife told him what happened, he went to see Detective Edwards at the Jefferson County Sheriff’s Office. He gave a recorded statement and later produced a passport and birth certificate showing that the female in the photo was not a child, but in fact a 35-year-old woman who lived in the Philippines. Thus Mr. Bellotte did not in fact possess any child pornography, and no charges were ever filed against him.”

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): Secretly 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.”

US v Powers, 842 F.3d 177 (2nd Cir. 2016)

Mr. Powers had sex with a 7 year old girl and photographed his victim while she was nude; Powers took a guilty plea for multiple counts of CP distribution, production and possession. However, on one conviction, a topless photo of the girl was challenged on appeal. 

“The Government concedes that the District Court committed ‘plain error’ by allowing Powers to plead guilty to a count for which there was no “factual basis for the plea.” Specifically, the image of V-l that focused on her bare chest was not within the definition of ‘sexually explicit conduct’ prohibited by 18 USC 2251(a), and conduct relating to it cannot serve as a factual basis for a conviction thereunder. We agree that Powers’s count of conviction related to that image, but only that image, must therefore be vacated. The principal issue on appeal is thus the appropriate remedy where only part of a conviction is subsequently overturned.”

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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