The U.S. Department of Justice has recently trumpeted the conviction and sentencing of Dwight Whorley, a 52-year-old parolee on child porn charges, for once again having downloaded images of actual children engaged in actual sexually explicit conduct – but the new wrinkle is that Whorley was also convicted of downloading sexually explicit Japanese cartoons, known as anime.
"Whorley was convicted under a new federal statute enacted in 2003 that criminalizes the production, distribution, or receipt of, or the possession with intent to distribute obscene drawings, cartoons, sculptures, paintings or any other obscene visual representation of the sexual abuse of children," reads the Justice Department press release. "Whorley's conviction for receiving cartoons is the first conviction under the statute that was not based on actual photographs of children."
That "new federal statute enacted in 2003" is the PROTECT Act, touted as giving federal approval for a nationwide "Amber Alert" system but also containing substantial revisions to obscenity and child pornography laws, in part to attempt to thwart the adult industry's Supreme Court victory in Ashcroft v. Free Speech Coalition (FSC). That suit struck down certain portions of the Child Pornography Prevention Act of 1998, which had criminalized sexually explicit material which "appear[ed] to be" of minors engaged in sexual conduct, or whose advertising "[gave] the impression" that it contained such material.
In its Ashcroft ruling, the high court declared, "The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice."
"In the case of the material covered by [New York v.] Ferber," the Court continued, "the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive... We need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the Government's market deterrence theory were persuasive in some contexts, it would not justify this statute. Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter."
Of course, that simple concept was unacceptable to a Congress that looks to the Bible rather than to the Constitution for legal advice. Hence, the PROTECT Act of 2003 sought to overturn Ashcroft v. FSC through a series of "findings" exactly contrary to those in the Supreme Court's 2000 decision.
Besides claims that in 1982, when the Supreme Court decided Ferber, the technology did not exist to create computer-generation depictions that were indistinguishable from depictions of real children, to composite images of several real children into one unidentifiable image or to disguise pictures of real children by making them look "computer generated" – all canards, since that technology did not exist even in 2000 when the Court decided Ashcroft, nor in 2003 when Congress passed the PROTECT Act – Congress "found" that "technological advances since Ferber have led many criminal defendants to suggest that the images of child pornography they possess are not those of real children," and that "[t]he mere prospect that the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution." Both claims are lies; they were lies in 2003, they remain lies today, and will continue to be lies for the foreseeable future.
But despite Congress' several claims in the "findings" of the real or potential indistinguishability of computer-generated imagery from photos of real children, the criminal sanctions it passed in the PROTECT Act went much further. Sec. 504 of the Act makes a criminal of anyone who "in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that ... depicts a minor engaging in sexually explicit conduct; and ... is obscene; or ... 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; or attempts or conspires to do so." [Emphasis added]
Subsection (d) defines the "circumstance" as "any communication involved in or made in furtherance of the offense [that] is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense."
Enter Dwight Whorley who, according to the Justice Department press release, received on a Virginia Employment Commission computer "20 obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in sexual intercourse with adult males."
As anyone who's seen sexually-oriented Japanese anime knows, the images therein can by no stretch of the imagination be mistaken for "composite or computer-generated depictions that are indistinguishable from depictions of real children." They're cartoons, and could never be mistaken for anything but cartoons. The fact that the jury convicted Whorley in part for his possession of the anime material – he was also convicted of receiving 14 digital photos of actual children in sexual situations, and of sending and receiving e-mails graphically describing adult/child sex – and that the Justice Department trumpets this victory, flies directly in the face of both the Ashcroft and Ferber decisions.
Noting the possible value of fictional depictions of children's sexual activity, Justice Byron White wrote in Ferber, "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." [Emphasis added] The Ashcroft Court reaffirmed that concept, noting, "In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children, as were the materials in Ferber."
In other words, in the 2003 PROTECT Act, Congress created "findings" out of whole cloth that the Supreme Court had specifically rejected as both false and irrelevant to the real crime of child sexual abuse just three years earlier. But that didn't stop a Virginia jury from finding Whorley guilty in part on the anime material, nor did it stop a federal judge from handing down a 20-year sentence that in part reflected the conviction on the anime material.
In some ways, this was the perfect case for the Justice Department, since it dealt with both actual and virtual child porn, and parole violations to boot, so it's unlikely that Whorley will appeal just the anime portion of the verdict and sentence. And it's clear from its press release that the Justice Department will hold Whorley up as an example of someone convicted for possessing childless "child porn" – which means that not only will Whorley suffer for this miscarriage of justice, but so will the free speech rights of all of us.
