Hello do me a huge favor. take this~ Main article: Child pornography laws in the United States
The legal treatment of simulated child pornography in the United States requires an understanding of the components of that phrase: pornography, child, and simulated. United States law treats these as separate concepts, each worthy of analysis.[citation needed]
In the United States, pornography is considered a form of personal expression, and thus governed by the First Amendment to the Constitution. Pornography is generally protected speech, unless it is obscene, as the Supreme Court of the United States held in 1973 in Miller v. California.[citation needed]
The United States Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition ruled that the Child Pornography Prevention Act of 1996 was facially invalid in prohibiting virtual or cartoon child pornography. The basis for the ruling was that the CPPA made unlawful some forms of protected 1st amendment speech, banning depictions of sex between children even if not obscene and not involving real child victims. Under New York v. Ferber, if the depiction is of real child abuse or a real child victim, as a result of photographing a live performance, for instance, then it is not protected speech. Under Miller v. California, obscene speech is likewise excluded from first amendment protection. The CPPA made all virtual child sex depictions illegal without regard to whether the speech was protected or not, so that part of the statute was struck down as facially invalid.
18 USC 1466A[edit source | editbeta]
In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003 by then president George W. Bush.[58] The law enacted 18 U.S.C. § 1466A, which criminalizes material that has "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 ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value. And mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the internet, or transported across state lines.[59] There is also an affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement.[60]
Criticism of the law has been levied on its wording. Lawrence Stanley noted that, "The moral slippage in the law is palpable in the way it conflates images of actual minors with fictional representations: it refers to "depictions of minors," and, by reference to the other provisions in the law, defines acts engaged in by "persons," but how is a cartoon character a person?"[61] The argument drawing on the definitions of 18 USC § 2256, which defines a minor as "any person under the age of eighteen years."[62]
In 2008, the law was tested in the courts. Parts of the law, such as the criminalization of a "visual depiction of any kind" were rendered unconstitutional by the judge in the Christopher Handley case. However, in the Dwight Whorley case, the conviction was been upheld on appeal to the 4th Circuit. The court noted that the minors depicted in obscene material need not exist. The Supreme Court would later refuse to review the Whorley case.
Cases[edit source | editbeta]
In Richmond, Virginia, on December 2005, Dwight Whorley was convicted under 18 U.S.C. 1466A for using a Virginia Employment Commission computer to receive "...obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males."[63][64][65] On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction.[66] The court stated:
"Thus, regardless of whether §1466A(a)(1) requires an actual minor, it is nonetheless a valid restriction on obscene speech under Miller, not a restriction on non-obscene pornography of the type permitted by Ferber. We thus find Whorley’s as-applied constitutional challenge to §1466A(a)(1) to be without merit."[67]
Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.[68][69] The request for rehearing was denied on June 15, 2009 and the petition for his case to be reviewed by the Supreme Court was denied on January 11, 2010.[70] A major part of the case was that Whorley also received real child pornography.[citation needed]
In October 2008, a 38-year-old Iowa comic collector named Christopher Handley was prosecuted for possession of explicit lolicon manga. The judge ruled that 2 parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional, but Handley still faced an obscenity charge.[71] Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation his lawyer, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images of question.[72]
In October 2010, a 33 year old Idaho man, Steven Kutzner, entered into a plea agreement concerning images of child characters from the American animated television show, The Simpsons engaged in sexual acts.[73][74] In January 2011, Kutzner was sentenced to serve 15 months in federal prison. According to court documents, Kutzner had been downloading, receiving and viewing sexually explicit images of actual children for at least eight years.[75] ~
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