Imagine the following hypothetical situation: A girl of sixteen or so years finds herself strapped for cash, and, having views about sexuality on the far end of the bell curve, decides to sign up for a nude photo shoot. Having views on recreational chemical usage that match her views on sexuality (lots, often, and with lots of other people), said girl has fake IDs, and is stacked enough to be mistaken for an 18-year old.
Now, if the company that produces shots of said girl in the altogether gets raided, and it comes to light that the pix are child pornography, what happens, legally? What should happen?
What happens, legally? It depends on who nails the porn company, and whether or not kiddie porn is in the public spotlight at the time.
What should happen, legally? If the company legitimately believed that she was 18, and had good reason to (as it would seem they would, in your hypothetical), then they should be forced to recall all pornographic materials associated with the underage girl, and that should be it. They didn’t know they were commiting a crime, they had no good reason to believe they were committing a crime, and they should not be prosecuted as such. Just like if you unwittingly buy stolen goods. If I buy a used TV for a reasonable price from someone at their house, I have strong reason to believe it’s a legitimate deal. If it later turns out the TV was stolen, it should be returned to the rightful owner, and I may be out the money I paid for it, but I shouldn’t be prosecuted.
I believe this is how the law would handle it if it was feeling reasonable. If we were in the middle of a kiddie-porn witch hunt, then it’s possible that the company would be tried in court, found guilty, fined, sued, and forced out of business. It’s pretty much a crap shoot.
Jeff
It would depend on the state’s kiddie-porn statute, I suppose. Most laws require a particular mens rea or “mental state” to be guilty of a crime. (For example, you’re not guilty of murder if you accidentally kill someone, because murder requires the intent to do so which must be proven by the prosecutor.) Assuming that the statute had a requirement of “knowingly” or “willfully” commiting the crime, the company would probably be off the hook. There’d probably be an exception if they willfully blinded themselves from knowledge that she wasn’t 18. (I.e., if she casually revealed that she was born in 1986, the manager can’t tell the court, “Well, I never investigated whether she was 16 or if she just misstated, so I’m not guilty.”)
Didn’t this exact situation happen to Traci Lords? She made most of her films while under 18, and when the state found out, they announced that everything she’d made as a minor was illegal.
She was never convicted of anything (I think), but the porn companies that hired her were raked over the coals. Don’t think anything ever come of it, though.
Ask Traci Lords, or rather the producers who shot her movies. She got involved in the porn industry at age 15 with a fake name and fake birth certificate and driver’s license. The government did try to prosecute the producers of her films, but it turned out that Lords had also used a fake passport to travel to Europe. Figuring that if her bona fides were good enough to fool Uncle Sam, they were good enough to fool a porn movie maker, the charges were dropped. Meanwhile, her movies are no longer available commercially.
Hmmm. I have a slightly OT question.
First, can I assume that child pornography laws are an acceptible restriction to free speech because of the government’s interest in protecting children?
If this is true, then what happens when the child becomes an adult?
What if Traci Lords wanted to sell her age 15 movies today? What possible reason could there be to restrict the commercial distribution of such movies?
Have I just thought up a viable business plan? 
Another hypothetical child pornography question that I believe has occurred:
Suppose a half-sane artist draws numerous sexually explicit portraits, all of them sexually objectifying children by depicting acts that would be unmistakably and almost universally illegal if they were photographs rather than drawings. Further suppose that no live models were used for the drawings and that the artist took precaution to limit viewing by minors or unintentional surfers. Should this be illegal or subject to prosecution under child pornography laws?
If you answer yes, suppose what the artist depicted was explicit portrayals of rape or other sexual violence against adults. Opinions?
IIRC from Criminal Law class last spring, there’s a SCOTUS decision about the mens rea for a distribution law in California. They held that mens rea was only required as to the “distributing” element of the crime, and that it’s strict liability on the age-of-model element. So if you “knowingly” or “purposefully”, in MPC intent-level terms, distributed pornography, the mens rea requirement is met. At least, they were willing to read a statute that way, they might very well do so again.
Traci Lords can only sell the videos she made while of age. The videos of her at 15 are still of a 15 year old girl, which is a no-no.
BTW, Traci Lords only made one adult movie while she was of age, which she ownes the rights too. If you want to see Ms.Lords in a porn, she gets the profits directly. The theory is she called the feds herself, insuring that the only buyable porn tape of her would be a hot commodity.
I watch way to many E! True Hollywood stories…
If no actual child was used in the making of these drawings, than it falls under first amendment protection. There was a recent supreme court ruling about this. Ashcroft v. Free Speech Coalition
Here’s another hypothetical question:
What if Traci Lords kept videos of herself in hardcore action while she was still a minor. Could she be arrested for child pornography, even though the videos were of herself?
I don’t expect this debate to go away any time soon, though. There’s currently a reasonably-sized market (large enough to be disgusting, anyway) in pornography that looks as if it’s kiddie porn, but isn’t. Barely-legal actresses who look 14, and such. Arguments against fake child porn vary, but the most compelling is that the proliferation of the fake stuff makes it more difficult to catch the producers of the real thing. There’s certainly enough precedent for limiting freedom of speech when said speech has the potential for harm - you can’t run into a movie theater and yell, “FIRE!”, for example.
The example of drawings is a little more complicated. So say drawings are okay. What about CG images? What if the CG images look real? Do you then ban CG that’s too realistic, but obviously stylized stuff is okay? There’s also the question of whether or not child porn has any net negative pyschological effect on people. Are those who view such images more likely to go out and try the real thing? Less likely? Does allowing fake child porn legitimize the practice to the extent that the pervs who like the stuff no longer feel as stigmatized, thus perpetuating the problem of child molestation? Personally, I think there is enough potential harm that can be done by even fake child porn that the government would be justified in banning it. I mean, some things are worth debating, and some things are just wrong, and I think it’s safe to say that child porn falls in the “just wrong” category, to the extent that first amendment rights can be hedged a bit.
Jeff
I full agree with the Supreme Court on this issue. Odd as it may sound, I think it could actually be beneficial to allow fake images that look like underage persons in sexual acts or poses.
It allows pedophiles who otherwise have no outlet for their fantasies to have a release that doesn’t involve harming children.
It could also reduce the amount of actual pornography involving children, since they wouldn’t need children to create realistic looking images.
At my school, there was a guy who got in trouble for pictures on his home computer where he cut and pasted the heads of students on to the bodies of porn actresses. He also wrote about what he fantasized about doing with these students (sexually orientated, of course). I’m presuming that most of the students were underaged. Does this guy have issues? Yep, he wasn’t exactly the most popular or outgoing person, and I doubt any girls found him attractive. But did that mean she should have to spend time behind bars, since he never actually DID anything that crossed the line into action? The charges against him were eventually dropped.
Of course, it was quite creepy and if I were one of the girls whose head were pasted on to a porn image, I’d feel quite violated.
I don’t know if he distributed those images or not, he might have, and that may have been who he got into trouble in the first place. Using someones image against their will in such a manner is probably illegal as it should be and is very wrong.
Nevertheless, this guy probably needs psychological counseling rather than jail time.
Does this mean what I think it does? Suppose you find a cache of kiddie porn in your house (left by Cousin Herman, let’s say), and you decide to take it to the local dump, no questions asked. But the box falls out of your truck along the way. The kiddie porn is illegal, no matter what, but you’re off the hook because you did not -knowingly- distribute it, right?
Now suppose somebody happens upon the lost stash on the road and figures, based on appearances, that the models are of legal age. This person sets up a cottage industry distributing this sleazy trove – until someone recognizes that the models are underage (maybe they know vintage Traci Lords when they see her). So now the guy gets the book thrown at him?
[QUOTE]
*Originally posted by ElJeffe *
**
. Barely-legal actresses who look 14, and such. Arguments against fake child porn vary, but the most compelling is that the proliferation of the fake stuff makes it more difficult to catch the producers of the real thing. [/suote]
It seems to me that’s an issue. Because : how could you forbid an adult woman to appear in a porn movie on the basis that she doesn’t look “right” (she looks 14 in your example). Seems to me it’s pretty much impossible to do that without infringing on her rights.
But the problem is as usual : who is going to decide what exactly is worth debatting or not as long as nobody is harmed…
It seems to me that’s an issue. Because : how could you forbid an adult woman to appear in a porn movie on the basis that she doesn’t look “right” (she looks 14 in your example). Seems to me it’s pretty much impossible to do that without infringing on her rights.
By the way, I just watched an hour ago a movie on TV , and the main actress (Vanessa Paradis) didn’t look like she was 18, though I’m pretty certain she actually was at the time the movie was shot. There wasn’t any porn scene, but there was full nudity, and she was precisely playing the role of an underage girl having a relationship with her teacher.
Could such a movie be forbidden, knowing that said actress not only wasn’t actually underage but also was a well-know actress (not sure it changes a thing, but I’ve a hard time picturing a police officer/ judge telling her : Ms Paradis, you can’t play in this movie since I think you look too young to appear nude, please find another job).
You should make the distinction between porn featuring “underage” girls and “kiddie” or child porn.
child pornography specifically exhibits CHILDREN (prepubescent) in a sexual manner to cater to the tastes of pedophiles.
Your scenario discusses a teenage girl who can pass for an adult.
Pantone, in the US, child pornography deals with people under age eighteen.
'‘minor’’ means any person under the age of eighteen years.
‘‘child pornography’’ means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
© such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a *minor engaging in sexually explicit conduct; and