Does Kiddie Porn Require Kids?

ChubraA comic book collector has been been sentenced to six months in jail after pleading guilty to possessing “obscene visual representations of the sexual abuse of children.”  His crime was the possession of manga/hentai comics that depicted children being sexually abused by adults and engaging in bestiality.  He faced up to 15 years in prison if the case went to trial.  To reach a guilty verdict the jury would have needed to decide on

Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,

Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,

Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

But, as Siouxsielaw.com notes, no actual children are involved.  Laws against child pornography protect actual children from being actually exploited.  In these cartoons there are no children involved.  Some would argue that we should still criminalize these cartoons because they may lead to abuse of actual children later, but that seems to fly in the face of traditional First Amendment rights.  We don’t criminalize games like Grand Theft Auto, even though they glorify stealing cars, wanton murder, and beating up hookers to get your money back.

The other interesting legal angle to this, which wasn’t tested because the case never went to trial, is whether this could really be considered a representation of abuse of a child.  A child is a person under the age of majority.  Are cartoon children then children?  They look like they’re under the age of majority, but how do we know?  We can’t ask their age, because they have none.  The character’s bio may include a purported date of birth, but the character doesn’t have an actual birth date.

How old is Lucy from Peanuts?  Is she 8 years old, the age her character finally settled in to (after starting as an infant)?  Or is she 59, the age of the comic strip?  Is she in her sixties, combining her comic strip age with the number of years she’s been that age?  And what is Charles Schutlz had declared that the Peanuts gang were not eternally children, but rather had a condition similar to Gary Coleman, so that while they age, they continue to look like children?  Should a court accept the argument that Lucy is in her 60s but merely looks like an 8 year old?

Don’t be too quick to answer that if something looks like a minor, then it’s a depiction of a minor.  Would we say that a girl who is 18 but looks much younger should be barred from appearing in pornography?  Probably not, and it would almost certainly be a violation of her rights.  So then why a cartoon which is older but just looks younger?

In the end, prosecution for people who possess cartoon depictions of child sex is just our aversion to the idea.  We punish people for it because we think it’s really icky and know that it’s something we would never enjoy ourselves, so we don’t have to worry about being on the wrong end of the law.  But, it does not serve to protect children, at least no more than banning Fairy Tale Fights would protect children from people who develop a desire to slice kids to pieces in slow motion.

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21 Responses to “Does Kiddie Porn Require Kids?”

  1. Vernunft Says:

    Straightforward obscenity, man. You’re wide of the mark here.

  2. bl1y Says:

    Obscene? Most definitely.

    But does it exploit children? I don’t think so.

  3. es Says:

    In con law I asked my professor what would happen if I drew a picture of a (clearly) a child, masturbated to it, and then threw the picture away. He didn’t have an answer (they never do, somehow).

    Last year I sat on a jury where a man was being civilly committed to a state hospital here in CA after a lifetime of child molestation charges:

    http://www.meganslaw.ca.gov/cgi/prosoma.dll?searchby=offender&id=1869408304076

    It turns out that at the hospital where he was previously, some sex offender had done exactly that. He drew a crude image of a child and was caught masturbating to it, and it was considered some kind of violation, I can’t remember exactly what. He ended up being civilly committed himself, and that episode was used against him as evidence.

    I think it’s insane that we even have to consider this shit ever.

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