I just read a brief piece in the paper about a guy (in the US, this is) who was sentenced to prison for having child pornography on his computer. I’m wondering about how these laws have passed muster with the courts. I’m not talking about production and distribution here. I’m talking about possession. If the courts have ruled that kiddie porn is so repulsive and socially destructive that the first ammendment no longer applies, what prevents the courts from ruling that possession of pornography in general or certain religeous or political content can be prohibited, as is the case in some countries? It seems to me that this is a mighty slippery slope.
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- You silly! Just because the government does something doesn’t mean it isn’t unconstitutional. It has to do mostly with public opinion, those publics being firstly the one that occupies the supreme court seats, and (rarely) secondly the one that loafs around in Congress. - MC
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Let’s say that I’m surfing the Web, and a site disguised as something worthwhile in the search engines is instead a kiddie porn site. I hut the [back] button as quickly as possible, but there’s still an “inappropriate” picture in the cache. Guilty?
In Scots Law Possession = Knowledge and Control.
If a kiddie porn picture is on your hard drive but is inaccesible to you (without recovery software) you are not legally ‘in possession’ of it.
As a criminal prosecutor who has a basic understanding of the internet (and there are not that many of us, I’m afraid) I would not be prosecuting someone for one or two stray pictures, unless there was an indication of intent, as I understand how easy it is to find yourself at a porn site without warning. I can’t say how many pictures would be the cut-off point, that would depend on the circumstances. How they were saved would be important indicator of intent. Obviously even one or two pictures in a folder labelled “Kiddies” would indicate something more than ‘innocent’ possession.
If recovery software revealed that a person had downloaded many kiddie porn pioctures and then deleted them from his memory so that they were inaccessable to him, then we hit a problem. Obviously we have passed the stage of innocently stumbling onto a website, but the pictures are no longer within his control and therefore not in his possession.
This is still a growing area of criminal law and has far to go yet.
Here’s an interesting article related to the slippery slope theory:
Whatever, MC. :rolleyes:
Let me parse out for yas why possession of kiddie porn is (constitutionally) illegal.
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The moment of harm is when the photographer poses the child. The child is either being manipulated or coerced into sexual behavior at a young age, which is criminal abuse or molestation, or is being forced or manipulated into having sex, which is statutory rape.
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Because it is this action that causes the harm, the First Amendment never even comes into play.
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To possess the kiddie porn is to pay for the above crimes being committed, and to create market demand for the above crimes to be committed.
IOW, possession of kiddie porn is a crime for the same reason possession of untaxed liquor is a crime.
Sua
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- Um, Sue, the US fed gov’t does lots of things not specified in the constitution.
–Secondly, the internet reaches many places, some of which laws concerning child poronography are rather loosely inforced, or lacking.
—Thirdly, the gov’t doesn’t tax kiddie porn, so it’s not like that at all: that would involve a rationalization of lost tax revenue, which they don’t bother using. Arguments against child pornography tend to focus on the emotional aspects of it, rather than any technical reason it can be included with anything else already illegal for other reasons. That it is illegal is a matter of regional public opinion, as I said. It’s not that way everywhere, and it wasn’t always that way in the US, either.
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-All that said, one or two images might be enough for them to arrest you, but most newspaper stories about the guys they usually bust for child porn have hundreds or thousands if images on their computers, not just one or two. - MC
- Um, Sue, the US fed gov’t does lots of things not specified in the constitution.
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I don’t think SuaSponte mean that kiddie porn was illegal due to tax reasons. If I read it correctly, the analogy was that possession of kiddie porn and untaxed liquor are both illegal for the same reason- because they both imply the creation of kiddie porn and untaxed liquor, both of which are illegal.
As SuaSponte said, the main beef against kiddie porn is the harm done to the child in the creation of it.
According to this CNN article, the US Supreme Court is deciding whether possession of child pornography that was create without the use of children is illegal.
Arjuna34
The Supreme Court of Canada has just ruled on a big B.C. kiddie porn case in which the existing law was challenged. The ruling focuses more on stopping the dissemination of materials rather than their creation. In the interests of freedom of expression the court allowed for two exceptions:
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A person may create their own material (i.e. drawings or stories) on their own so long as they do not distribute it.
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A person may be in possession of materials for the purpose of pornography so long as they do not depict any unlawful sexual activity.
I always get a bit uncomfortable when the government regulates anybody’s ideas. I mean, there are already laws which forbid making pornography with minors and it’s not as if this actually addresses pedophiles in terms of their interaction with kids. It’s a tough issue and one which will probably never be addressed entirely rationally. It’s just too political. You’re simply not going to see a meaningful dialogue on a topic where good and bad are so obvious. Well, unless the pedophile lobby has more clout than I have been led to believe…
That certainly seems like a rather reasonable idea.
ie, using (documented…exceptionally important for their sakes!) 18 year old girls that look like 14 year olds in kiddie porn-like situations. I certainly can’t see a problem with this as these girls ARE 18, and let’s face it, a lot of guys have a thing for teenage girls (hence the popularity of 18 year old sites on the Web)!!!
And to muddy the water even more, there is the issue of simple nudity vs. pornography. When emotions come into play, nobody seems to be able to make the distinction, leading to things like the recently publicized case of the woman who had been snapping hundreds upon hundreds of pictures of her daughter getting turned in by the photo-developing place when she included snaps of the daughter in the shower. It probably eventually got thrown out, but was undoubtedly a HUGE hassle for the woman.
In addition to family photographs, we’ve got nudist publications and art photographers like David Hamilton and Jock Sturges who are continually getting in hot water.
I suppose you can argue that whatever the material’s original intent, it has a high probability of being used for erotic turnons by pedophiles if made publically available, thus contributing to the “market” for kiddie porn, even if no overtly sexual acts involving a child are depicted. I would not choose to defend that argument.
SuaSponte
What about a underage girl with a webcam, who choses to take pictures of herself naked or in sexual poses? Or takes pictures of herself with her equally underage boyfriend or girlfriend?
No one’s asking her to take them, but of course society has informed her that pictures of naked women attract men. so a level of manipulation or coercion can be considered to be present, even if there’s no single person doing so.
Yet of course, that’s still child pornography, and if she sends them to an adult, that person could be charged, as could, I assume her parents if the pictures were discovered on her computer.
Hadn’t thought about that aspect of it, but that’s going to add an interesting twist to the debate in coming years.
-Doug
To yabob: Yeah but you could also argue that even though WATER is used to provide life and liquids to people, it is still used sometimes to get people high(ie:drink twenty gallons of water to screw up your body) so it should be illegal to have water. A steak knife is used to cut meat of dead animals but some people use knives to kill people; Ban knives. Money is used to buy Legal items but some people buy illegal substances; ban money. etc…
Stupid ideas desrve stupid responses.
Is there any doubt in anyone’s mind that this discussion is already a debate, and it’s going to become more so? No? Good, 'cause I’m moving it to GD.
To Yabob: I didn’t mean to attack you. I was attacking the idea. You were just the punching bag.
So that’s where this went.
Just to clarify one point…
Look in your “Windows” directory (if you use Windows) and look for a “Temporary Internet Files” folder. If you mistakenly go to a Kiddie Porn site, you’ll most likely find the pictures in there. Just wanted to bring up the other “Accidental Possession” possibility.
Anyway…
That seems slightly related to this… what if a girl’s underage, but she LOOKS older, and SAYS she’s older? What if she meets a guy in a chat room and she starts sending him pictures? Is he still guilty of possessing child porn if he thought he was looking at pictures of an 18-year-old girl?
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*Originally posted by MC *
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It’s Sua. I’m male (you should see the looks of shock at Dopefests :D).
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True, but that doesn’t mean those actions are unconsitutional. The language of the Constitution is deliberately general, to take into account changing circumstances. For one example, nowhere in the Constitution are airplanes mentioned. However, government regulation of the airline industry is constitutional under the provisions of the Constitution that govern interstate and international commerce and travel.
In any event, this wasn’t the point of your original statement:
Your implication was that the prohibitions on kiddie porn are in fact unconstitutional, but the laws stay in place because because popular opinion wants kiddie porn illegal.
This is untrue for two reasons: (1) the illegal conduct in kidding porn is the act of filming the child, not the dessemination of the idea of kids having sex; and (2) given the strong civil liberties thrust to American law, I doubt that public opinion is relevant. We allow Nazis to march, fer chrissakes - I’m not sure how much more unpopular an idea you could find.
The person who received it over the internet in a foreign country is not going to be prosecuted by U.S. authorities, obviously. It is outside of their jurisdiction. Not sure how this is relevant to a discussion of U.S. kiddie porn law.
Arjuna34 was right on point. The purpose of the analogy is that the buyer of untaxed liquor isn’t the person who owed the tax in the first place. However, his/her possession of the untaxed liquor is illegal because he/she is rewarding an illegal act/creating a market pressure for more of the crime to be committed.
Obscenity is a matter of regional public opinion (or “community standards”), not kiddie porn. Kiddie porn is illegal everywhere in the U.S.
As for your “emotional aspects”, personally, I’m not arguing this from an emotional POV, but a legal POV. The legal issue is the injury caused to the child.
As for your assertion that kiddie porn was ever legal in the U.S., cite please. To my knowledge, before the enactment of specific kiddie porn laws, kiddie porn was covered by other morality laws. They usually weren’t constitutional, but they did criminalize kiddie porn.
What’s this mean? Are you arguing that the possessor of thousands of images should be arrested, but not the possessor or one or two. If so, please explain.
Sua
Very interesting question. I believe the rationale for criminalizing possession of this type of kiddie porn is twofold. First, even with direct coercion, etc., the child is still suffering psychological harm by developing a warped view of sexuality. The possessor is encouraging her to act in this manner by consuming the images, thus encouraging the child to inflict more harm on his/herself.
Second, even if these particular images were free, the possessor is still helping to create a market for illegal goods. If someone gives you a joint for free, you still can be charged with possession.
Sua
Umm…
Apparently, if someone in the United States produces a piece of artwork–not a photograph–portraying a child having sex, that is now illegal.
So, if someone in the U.S. purchases such a piece of artwork, the purchaser also breaks the law?
What if the artwork was produced before the law was written, or outside the U.S.? Then the “pornographer” is outside the jurisdiction of the law–does the buyer still break the law?
Note that such artwork can be produced without children being sexually assaulted in any way. The buyer is not paying to have children sexually abused. He’s buying a work of art. No American child has been assaulted–nor even approached. Where is the harm?
The offense appears to be in the portrayal of children in sexual positions.
OK, some of you will say, we agree with that. Some ideas are hateful, and ought to be regulated as such.
But U.S. law considers any human being under 18 a child! Even for the purposes of child-porn laws! Go back and read the above paragraphs with “17-year-old” substituted for “child”. Does that make sense?
I once read a thread on this message board (& I’m sure there are others) where a poster discussed sex with her boyfriend when they were in high school. That, apparently, was “kiddie porn”–according to Congress.
I think these laws have been made largely by people who are against erotica/pornography generally, but no longer have popular support for a total ban on sexually explicit material. Thus, we have a compromise position, claiming to protect “children”.
I think a more coherent “cut-off” for what is considered obscene as art would be the sexual maturity of the figure or character portrayed.
As for people actually involved in sex acts for photographic porn, I think current law is pretty good. The abuse of teenagers by pornographers is rightly discouraged. But understand this: sexual abuse by pornographers is not the same as the portrayal or recording of same. If we discuss this rationally and informedly, we can parse differences in kinds of sexual abuse. But that’s apparently too much for some people–including Congress–to accept.
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I once read a thread on this message board (& I’m sure there are others) where a poster discussed sex with her boyfriend when they were in high school. That, apparently, was “kiddie porn”–according to Congress.
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Cite please. As noted above, this wouldn’t fall within U.S. descriptions of kiddie porn. If it did, every memoir that mentioned the author’s pre-18 sexual experiences would be illegal. They aren’t.
In a perfect world, you are right. But given the costs involved, the blanket restriction makes sense.
But you can’t have one without the other. If the sexual abuse doesn’t occur, there is nothing to record. Further, there is a secondary argument that the existence of the kiddie porn photos harms the child. He/she did not (could not, under law) consent, his/her parents cannot consent for him/her, under law, to an illegal act (the sexual abuse), and therefore the child is left with photos out in the world of them being sexually abused. The psychological impact of that is obvious.
Sua