ANCHORAGE, AL.—Instead of worrying about drilling in the North Slope, Alaskans may be headed down a free speech slippery slope as the state legislature considers strengthening state child pornography laws to include cartoons, drawings and animation. In other words, for the content to be considered contraband no actual human being would need to be involved.
According to the Anchorage Daily News, the idea is supported by the chair of the House Judiciary Committee and others in the state legislature.
"The fight needs to happen," said Aaron Sperbeck, the crimes-against-children prosecutor in the Anchorage District Attorney's Office who is behind the idea. "[Cartoon images] are almost as graphic and disturbing as real children. We need to get the conversation going."
Alaskan House Judiciary chair Rep. Jay Ramras, R-Fairbanks, supports adding cartoons and computer-generated images to the list of photos and videos of child sexual abuse currently criminalized under state law.
"I'm awestruck that it even exists," he said, adding the prosecutor "has got a good idea and I'm going to support him."
In attempting to draft new laws that cover what has come to be known as “virtual child porn,” state legislators will have to abide by the limitations of the PROTECT Act of 2003, the most recent federal law dealing with depictions of child sexual abuse.
The PROTECT Act was passed in large part to offset earlier court defeats, most notably in Ashcroft v. Free Speech Coalition, the 2002 ruling in which the U.S. Supreme Court struck down certain sections of the Child Pornography Prevention Act of 1996 (CPPA) relating to “virtual” child pornography, holding that these sections were "overbroad and unconstitutional."
While it strengthens many provisions having to do with child sexual predators and sexual offenses, the PROTECT Act directly addresses “virtual” depictions by:
- Prohibiting computer-generated child pornography when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).
- Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the Miller test of being obscene, OR are engaged in sex acts that are deemed to meet the same obscene condition. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors).
Thus, any Alaska law related to depictions of alleged child sexual abuse will also need to be deemed obscene under the Miller test for it to avoid conflict with the PROTECT Act. Significantly, Congress also added affirmative defenses defendants can use to escape conviction if they can prove that “the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and each such person was an adult at the time the material was produced; or the alleged child pornography was not produced using any actual minor or minors [.]”
However, Alaskan legislators may be heartened by the recent decision by the Fourth Circuit U.S. Court of Appeals in Virginia to uphold the conviction of a man who received on a computer obscene Japanese anime cartoons depicting minors in sexually explicit conduct.
While most of the judges voted not to review the conviction in U.S. v. Whorley, the lone dissenter, Circuit Judge Roger Gregory, wrote that Whorley should take his case to the U.S. Supreme Court.
"I am hard-pressed to think of a better modern-day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless 'crime' of privately communicating his personal fantasies to other consenting adults," he wrote.
For Alaska Assistant U.S. Attorney Audrey Renschen, however, the issue comes down to actual harm done to real children. She insists images of “virtual” child porn can be harmful because predators use them to groom children for abuse. By showing them the images, she claims, children are taught that rape or adults having sex with children is okay.
"When you talk about anime, even though a real child wasn't used, it still sexualizes the child. And cartoons are naturally conducive to attracting a child," she said.
Needless to say, free speech advocates disagree. Joan Bertin, executive director of the National Coalition Against Censorship in New York, said Americans have the right to privately possess such materials; no matter how disgusting most people find them, they are not hurting anyone and did not hurt anyone in their creation.
"That represents someone's fantasy life," she said. "When you start regulating that kind of matter, you are getting into thought control and that is very dangerous."
The federal government has already proven it has no problem going after people for thinking about, or more accurately writing about, child sexual abuse. Karen Fletcher was charged in 2006 with posting to her “Red Rose” website fictional stories that depicted the rape and torture of children—including infants. Fletcher challenged the charges, but last year, succumbing to the fear induced by her agoraphobia, pleaded guilty to six counts of distributing obscenity online.
Industry attorney Reed Lee, Reed Lee, a Chicago-based First Amendment attorney who also has successfully defended a number of obscenity cases, said he believed Ms. Fletcher had a viable defense partly because it is more difficult to find something that patently offends "contemporary community standards," one of the Miller test prongs.
"I don't think many people think the standards are getting stricter. With text, you can always stop reading," he said. "You're less likely to be offended than if an image is just splashed at you."
Late last year, a judge in Melbourne, Australia refused to overturn the conviction of a man who used characters from The Simpsons to make sexually explicit images.
“The alleged pornography comprised a series of cartoons depicting figures modeled on members of the television animated series The Simpsons,” Justice Michael Adams said. “The mere fact that the figure depicted departed from a realistic representation in some respects of a human being did not mean that such a figure was not a ”person.”
If the Simpsons also are considered people in the United States, someone should quickly tell Playboy magazine, which has decided to grace the cover of the November issue with a sexy image of Marge Simpson. While no one could accused the magazine of engaging in the creation of “virtual” child porn, has anyone actually checked Marge’s driver’s license or other government-issued ID? Unless she is in the country illegally, as a person she is legally required to have one.