Fetish Friday: The Legality of Fictional Minors in Sexual Conduct

Welcome to Fetish Friday here on Lawyers & Liquor, and we’re not going to spend any time dicking around with being funny today.  We got a lot to talk about, so we’re going to just dive right in.

I’m the Boozy Barrister, and today we’re going to discuss the legality or illegality of drawn, sexually explicit images of fictional minors under federal law.

A BIG OLD DISCLAIMER

First, because I know it’s going to come up:

We’re having an esoteric and academic discussion of the law.  I am not your lawyer.  This is not legal advice.  Go see a lawyer in your jurisdiction if you need help with this.  Also, don’t message me about this shit and your issues.  I’m not interested, and there is no attorney-client privilege.

Second…Guys, I know this is a heated topic.  And I understand why.  And at the very end of the article today I’m going to tell you my thoughts before we wrap it up.  But I’m not here to discuss the morals and ethics on this stuff, but just to clarify and discuss the state of the federal law surrounding it.  I’ll say it again later, but I’m not a fan of even mentioning today’s topic, and frankly kind of wish it would stop popping up.  I have kids.  Fictional or real, this shit bothers the fuck out of me.

FEDERALLY, WHAT LAWS APPLY TO CHILD PORNOGRAPHY?

When we’re talking about federal prosecutions of child pornography, we’re talking about the Child Pornography Prevention Act of 1996, or the CPPA.  Now, we have to recognize first that the authority of the federal government generally doesn’t extend to things that happen solely within one state, and while I’m not going to go into a whole constitutional law and separation of powers thing here, that’s gonna be important to the purposes of our discussion. Where the federal government comes into play is where the activity takes place in several states or with a likelihood of entering several states, at which point the Commerce Clause of the Constitution gives Congress the power to regulate that activity.

[Note: This is a very high level overview.  Seriously, you spend weeks on the Commerce Clause in law school.  In no way is one general paragraph a full explanation of it.]

Because the CPPA criminalizes a lot of activity, but all of it is possession or receipt through some means of interstate commerce, or with the intent to place into interstate commerce and communications, an image of a minor engaged in sexually explicit conduct.  So if Joe Blow takes pictures of a kid being forced to do horrible things, or is physically handed such an image, it may not violate the CPPA.  But if they download or access the same image online, or have it mailed to them, or if it travels across state lines, then we’re in CPPA territory.

So we need to understand that federally, when we’re talking child pornography, we’re generally talking about laws that require some act of transmission across state lines in order to possess, or possession with the intent to do such transmission.  And for that purpose, violations of the CPAA, we need to answer another question as well, especially in light of the current controversies and happenings online:

WHAT ISN’T CHILD PORN.

Let’s start with what “artistic renderings” of minors engaged in sexual intercourse legally isn’t, and in doing so let’s rely on the Federal definition of things, okay?

First, drawings of this nature are not child pornography under a legal definition.  The law regarding what is defined as “child pornography” is set forth under 18 U.S.C. § 2256  (8), which states as follows:

(8)“child pornography” means 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.

18 U.S.C. § 2256 (8).

This alone seems somewhat vague, especially when we look at the words “minor” and “visual depiction,” which seem to encompass drawings of minors, even fictional minors, involved in “sexually explicit conduct.”  Or fucking.  We can just say fucking at this point.  The clarification comes from another part of the same criminal code, which we’ll remember is the federal code only at this point, 18 U.S.C. 2252a(c), which states that:

(c)It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that—

(1)(A)the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and (B) each such person was an adult at the time the material was produced; or

(2) the alleged child pornography was not produced using any actual minor or minors.

18 U.S.C. § 2252a(c).

If you don’t know what an affirmative defense is, it’s essentially a defense that says “even if every element is true, I’m still not guilty because of these additional facts,” and we have to note that under the federal definition of child pornography, right there under 18 U.S.C. § 2256a(c)(2), the defense that there is no actual child being harmed is explicitly available to a defendant who may just have or transmitted drawings of a fictional character.

In other words, a drawing of a fictional minor engaging in sexual activity is not child pornography that violates the CPPA, and therefore the federal law.  And this isn’t just supposition, the Supreme Court of the United States has weighed in on this as well in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), wherein the highest court in the land took a look at the CPPA in the specific context of classifying and prosecuting people for the possession of child pornography based on such works and found it inapplicable as follows:

“We need not decide, however, whether the Government could impose this burden on a speaker. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is incomplete and insufficient, even on its own terms. It allows persons to be convicted in some instances where they can prove children were not exploited in the production. A defendant charged with possessing, as opposed to distributing, proscribed works may not defend on the ground that the film depicts only adult actors. See ibid. So while the affirmative defense may protect a movie producer from prosecution for the act of distribution, that same producer, and all other persons in the subsequent distribution chain, could be liable for possessing the prohibited work. Furthermore, the affirmative defense provides no protection to persons who produce speech by using computer imaging, or through other means that do not involve the use of adult actors who appear to be minors. See ibid. In these cases, the defendant can demonstrate no children were harmed in producing the images, yet the affirmative defense would not bar the prosecution. For this reason, the affirmative defense cannot save the statute, for it leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.

In sum, §2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.”

Id.

So, in essence, the Supreme Court and the federal law itself state that fake images, including drawings of fictional children and actors/actresses that are legal adults but appear not to be, cannot sustain a child pornography charge because they do not contain actual children.  I mean, it’s a little more complex than that, but not by much really.  That’s the gist of it.

SO DRAWINGS OF KIDS BEING ABUSED AREN’T ILLEGAL THEN.

See, I didn’t say that.  I said that such images, which don’t feature any actual children, aren’t legally defined as “child pornography” because that term has a specific meaning under the federal law.

This doesn’t mean that such work isn’t illegal though.  Once SCOTUS came down with its holding in Ashcroft v. Free Speech Coalition and essentially invalidated a means of prosecution for the possession and transmission of such images, Congress got back to work and in 2003 enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or as its more commonly known, the PROTECT Act of 2003.

While the PROTECT Act did a lot of stuff, in a part pertinent to today’s conversation is also amended Title 18 of the United States Code, Chapter 71 to add 18 U.S.C. § 1466A, a statute regarding “Obscene visual representations of the sexual abuse of children.”

We’re going to start here with the actual words of the statute, then I’ll talk about what we mean, okay?

(a)In General.—Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

(1)(A)depicts a minor engaging in sexually explicit conduct; and (B) is obscene; or

(2)(A) 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 (B) lacks serious literary, artistic, political, or scientific value;

or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

(b)Additional Offenses.—Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

(1)(A)depicts a minor engaging in sexually explicit conduct; and (B) is obscene; or

(2)(A)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 (B) lacks serious literary, artistic, political, or scientific value;

or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

18 § U.S.C. 1466A(a)-(b).

Alright, there’s two big differences right off the bat there with the CPPA.  First, unlike the CPPA, this statute explicitly states that a “drawing, cartoon, sculpture, or painting” that “is obscene” or “lacks serious literary, political, or scientific value” is going to make criminal prosecution quite possible if it’s done in conjunction with any circumstances listed in 18 U.S.C. § 1466A (d) (which is basically in relation to interstate communication and transportation and in the special zones where federal law applies only like a U.S. Territory). That’s a difference from the CPPA, which wasn’t enough to trigger that.

Secondly, there’s the “obscene” language, which wasn’t present at all in the CPPA.  And that’s important because in Ashcroft v. Free Speech Coalition the Supreme Court had struck down the CPPA’s depiction on cartoons of minors engaging in sex specifically because the CPPA was not an obscenity based statute.  In other words, it didn’t say “we’re restricting this because it’s obscene” but rather “we’re restricting this because it’s child porn,” and the Court had said “that’s fine for real things, but we’re not letting you do that for drawings.”

And in case there’s any doubt that the PROTECT Act meant to capture fictional minors in its grasp, 18 U.S.C. § 1466A(c) removes that doubt entirely, instead saying:

(c)Nonrequired Element of Offense.—

It is not a required element of any offense under this section that the minor depicted actually exist.

18 U.S.C. § 1466A(c).

In other words, yes, the restriction on drawings of fictional children engaged in sexually explicit conduct is illegal under the federal act if such depictions are obscene or without any serious literary, artistic, political, or scientific value and so long as they happen in a manner that federal jurisdiction would apply.

No, it does not matter if the children are real or based on real people.

But we can’t even end the analysis there, because that whole “obscene” thing is another legal question in and of itself.

KIDS FUCKING IS ALWAYS OBSCENE, BOOZY.

No, no it isn’t. WAIT. BEAR WITH ME. I’M ABOUT TO QUALIFY THAT STATEMENT.

Say an artist draws something that’s Romeo and Juliet engaging in sexually explicit conduct, but NOT sex. Or some of the great masters’ of art’s paintings.  Or a dramatic animated feature that presents the rape of a child in a not-at-all erotic and completely bone-chilling manner.

Those are not “per se” obscene, because they could have some serious literary or artistic value.  The same would apply to, say, an in-depth scientific or legal study that reproduces images of child sexual abuse.  Those as well could have genuine political or scientific value.

And when we get to obscene, that subparagraph (2) that we’re looking at are all “per se” obscene things, which are definitely obscene unless they have such values.

So we do have to look at the context in which the work is created to determine the value of it and the circumstances surrounding it, and it isn’t an easy test to apply.  Even for the courts.  But I’m not going to rehash obscenity, because we’ve actually talked about it before in the context of bestiality.  I’ll just copy and paste what I said then:

Alright, so obscenity is a real thing when it comes to the First Amendment, and the Supreme Court of the United States has held that it isn’t protected by the First Amendment. But the famous line from Justice Stewart is:

“I shall not today attempt further to define the kinds of material I understand to be [hardcore pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

That’s a really fucked up and easy to misinterpret standard, so SCOTUS came up with one slightly better than that in 1973 in the case Miller v. California, 413 U.S. 15, which established a three-pronged test known as The Miller Test that goes as follows, as amended for laymen:

  1. Does this shit appeal to someone’s sexual desires, taking into account the community standards?
  2. Is this the sort of shit that would violate some state law regarding sexual conduct?
  3. Does this shit have any serious non-sexual purpose, such as artistic, scientific, etc?

If the answers are, in order, Yes, Yes, and No, the material is likely going to be treated as being obscene. Once it’s obscene, it’s no longer First Amendment protected speech. Once it’s no longer First Amendment protected speech, the state can regulate it under its obscenity law…something every fucking state has.

“Fetish Friday: Banging a Beagle is Illegal or Zoophilia and the Law”

So, frankly, it’s only illegal if it meets the obscenity test (which subparagraph B of the sections meet except for the value).

But we’re going to take it a step past what I said back then, because I need to explain what an obscenity conviction is and how it’s reached, and for that we need to actually look at Miller itself.

WHO DECIDES WHAT’S OBSCENE.

Miller and the line of cases that come from it are the basic rules for obscenity in the United States, and the reason they’re so important is an issue of the First Amendment.  The First Amendment, as we all know, is the right to free speech and expression without government interference.  However, there are certain types of speech that the First Amendment simply doesn’t apply to, and therefore it can be regulated by the government (such as making it illegal, like we’re looking at here).

For example, obscene speech is never protected by the First Amendment.  Therefore when something’s obscene, we can make it illegal, and that’s what the PROTECT Act is seeking to do.  However, the question becomes “Who makes the determination of what is obscene?” and the answer is…the jury.

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts,

Miller, 413 U.S. at 24.

That whole block of text up there opens with the words “the trier of fact,” which means the question of obscenity isn’t one of law but one of fact, and in the United States we leave questions of fact (for the most part) up to the jury.  That means that those three factors:  Prurient interest by community standards (is it meant to appeal to the sexual side), patently offensive sexual conduct, and no merit.  Where the conduct being depicted is, itself, illegal and sexual, we’re likely going to see the first two factors of that analysis met.  Bestiality pornography in a state that outlaws bestiality itself is a good example: It exists for sexual gratification, the underlying activity depicted is illegal, and if it has no artistic, literary, political, or scientific merit it will likely be held obscene, because the final question is the only real one out there.

This, by the way, is why most pornography is not obscene:  the underlying act is not illegal.  Two consenting adults engaging in sex is not illegal, and there’s no state statute saying it is, so the work’s not obscene.

Further, this determination has to be made by looking at the work as a whole, not simply a single part of it.  One panel of a comic may be obscene, but we don’t let that panel stand alone in an obscenity prosecution.  The Jury has to review the whole comic and then make a determination as to whether that one panel makes the whole work obscene.  So, one page in a manga could be obscene, but if the rest of the pages aren’t and have value, then the who thing isn’t obscene.

Starting to understand why we don’t bring these prosecutions often?

WHAT DOES THIS MEAN IN RELATION TO TODAY’S TOPIC?

Essentially, what these laws are saying is if you’re going to draw minors, even fictional minors, explicitly engaging in sexual activity, it better have some serious literary, artistic, political, or scientific purpose.  Same if you’re going to download those images from the internet.  And yes, while it’s rare, people do get prosecuted for having such images, such as in United States v. Whorley, 569 F.3d 211 (4th Cir. 2009) or in the case of United States v. Handley, Case No. 07-cr-00030, S.D.Ia., Decided July 2, 2008.  In the former, the defendant was charged in addition to having actual child pornography on his computer, while in the latter it was a prosecution (which ended in a plea deal) for only having manga depicting sexually explicit conduct by fictional minors.

SO LOLI MEANS JAIL.

No.  Not…not really.

It’s hard to explain this part, but it’s the reality of the law.  Handley, in the history of 18 U.S.C. § 1466A, is an outlier.  Most prosecutions brought under 18 U.S.C. § 1466A, and there really haven’t been that many, are being brought in situations where there’s actual child pornography found as well.  In fact, Handley is the only case I could find where the charge was brought just on the cartoons and nothing else.

Which matches what one would really expect, because while a prosecutor can charge under the PROTECT Act, they’re also going to have to convince a jury to convict under the PROTECT Act, and that’s going to be a harder thing to do…especially when the images are in a form that most laypeople would consider sort of de facto artistic or literary in nature, such as writing or a drawing…and especially because what is “obscene” when left to a jury really is a question of to what extent the jury is willing to accept the work as acceptable…and all those arguments you see online?  “It’s okay because it’s all fiction…no real kids are being harmed….there’s no crime here at all”?  Those are the same arguments a defense lawyer will make to the jury to try and get them to see things in the light favorable to their client.

And they may work.  Because, and I’m going to be frank here, even I have a hard time academically with the “even fictional characters should carry the same punishment as real kids” position.  And I’m a parent who finds the concept of such work reprehensible.  I think it’s horrible, I don’t want to really associate with anyone who has it or creates it, but I’m torn on whether I could vote to convict someone whose only crime is having such work.

SO YOU SUPPORT…

No.  I don’t.

I’m not in support of works of that nature.  I’m just torn on whether or not I can equate them to actual artifacts of child sexual abuse and exploitation when it comes to punishment.  Being torn academically or esoterically about something is a far cry from supporting it.  Especially when we base the prosecution on obscenity and not on the harm that results from the production and dissemination of those images.

I mean…Handley was a Manga collector, a veteran, and had no criminal history.  But just collecting Manga was enough to get him tossed in jail, despite the fact that out of all the manga he collected only three volumes had anything violating the PROTECT Act in them.  That bothers me, because you could definitely have made the argument that was possession for a literary or artistic purpose.  But in the same vein…yeah.  There are people out there who are using it to normalize the molestation or children or as a stepping stone to actual abuse of actual kids.  And…that’s wrong, too.

I don’t know, guys.

SO…CONCLUSION?

Yeah. Let’s do that.

The take away here is drawings of fictional minors engaging in sexually explicit activity is not legally child pornography, and cannot legally be considered child pornography, based on the holding of Ashcroft v. Free Speech Coalition.  However, that does not mean it’s legal.  If the work is obscene, as we discussed above, and has no literary, artistic, political, or scientific merit, then such drawings of fictional minors are illegal federally under the obscenity laws if any of the circumstances that invoke the federal government’s jurisdiction on the matter apply.  However, while still technically illegal, people aren’t really prosecuted on it due to the difficulties of getting obscenity convictions (they’re notoriously hard) where there’s no actual victim in the images, and accordingly it’s rarely prosecuted without there being some other charge like abuse of a child or child pornography.

So…technically illegal – possibly – but rarely prosecuted.

And now if you’ll excuse me, I need to go shower with steel wool or something.

-BB