ETA:
[aside] Drat, while I was writing my post the thread is being dragged away into another debate with Diogenes on the morality of underage sex. Jesus on a rollerskate, really, people… IMO from various earlier threads and he can correct me (elsewhere, please) if I’m wrong, his position is one of absolute condemnation and hatred of even the notion of pedophilia, as heinous per se, and he will NOT concede to the contrary EVER. Nor does he really have to. Can we move on?
[/aside]
I could “actually depict” any entirely imaginary event (see: every novel ever written) so that just reverts to the comparisons with crime fiction.
The difference in these cases is more of a legal juggling act: As it stands there are two rules of law extant per US Supreme Court rulings: (1) Obscenity is not protected speech. (2) *** if there is NO real child *** involved, it isn’t under what the law strictly defines as “Child Porn”, and no you can’t broaden it to include anything you dislike.
So instead what’s done currently is to seek to apply the test for obscenity – community standards, patently offensive, appeal to prurience, cultural/artistic value, etc. etc. – to references to or depictions of minors. Obscenity is independent from actual representation, BUT one of the pitfalls in this application is that to a large part of the population, the very idea of any reference to minors makes it obscene a priori in their minds.
As a practical matter for the last 30 years or so the de-facto situation has been that material consisting of mere text, however twisted, has not been targeted for either CP or obscenity prosecution anyway. To a large degree this was a backlash to a historic record of legitimate literature being declared “obscene” just because the Establishment found it disturbing (Joyce, Lawrence, etc.). The authorities have been focused on representational materials (which in the case of CP photos and video is much, much more urgent to intervene).
(Heck, there is even debate on whether porn cartoons should be considered under these obscenity-depicting-minors statutes. You draw an image of Wonder Woman getting it on with Batman, you’re merely a copyright infringer; draw Lisa Simpson and Milhous getting it on, do you deserve 10 years in the clink and a lifetime in the Offender Registry? They are both merely pencil lines. But that’s not really the point with this guy)
Like I said, to me it seems the interesting part is whether the claims the authorities are making are really about obscenity vs. incitation to commit a crime, and I believe Crazyhorse has a point in that they may seek to show that the descriptions in the book would appeal to the prurient interest of a pedophile, who even if he would be sane enough to not even dream of taking it as marching orders, he still would take it as wank fodder.
And of course if the jury is not sure if someone who ever experiences a pedophilic ideation should allowed to live in the first place…
Probably. But then again, we are going into policing motivations. You could argue that the latter book, by encouraging something that a large fraction of the population seems to support, has a higher possibility of leading someone to take improper action (specially if they get it WRONG who is the pedophile).