I saw a discussion on Twitter about the “Worst Tattoos Ever” and somebody brought up the theoretical idea of somebody in the future getting a “photo-realistic” image of child pornography on their body, and what exactly would happen since you can’t easily delete that. There’s also the idea of getting “state secrets” tattooed on your body as well. Has this ever come up? Could the government “force” someone to get their tattoo removed/covered up?
Force them to? Probably not. Punish them for failing to (at the very least cover up), thus continuing to display illicit/illegal material just as if they had sent an email? Sure, why not?
Maybe something for the “My body, my choice” crowd to explore?
It’s a real concern in Germany, where the public display of certain symbols (so called unconstitutional symbols, swastikas, SS runes, the phrases “Sieg Heil” or “Heil Hitler”) is illegal. Of course some neo nazis have got tattoos of that kind, but they are not allowed to display them in public. According to this article (in German), there have been convictions up to 8 months of jail for public display of unconstitutional tattoos.
RSA Encryption was declared a munition and wasn’t allowed to be exported. There were t-shirts with the algorithm printed on them, and apparently some folks had it tattooed as well. The restrictions were declared unconstitutional in 1996, so the issue is moot now.
There would be so many defenses to this:
- The tattoo is a work of fiction and the subject has no identifiable age.
- Tattoo subject looks like a famous underage teen actor MacKortlinn Kayleigh Chambers? Well, this fictional tattoo is actually set in the future, and she hasn’t aged much.
- Tattoo was on my back, and I never looked at it closely.
I guess it would be prosecutable if it depicted graphic genital contact of an adult and a minor, subtitled “the subject of this tattoo is 12 years old, which is younger than the age of consent everywhere”. But at that point we’re asking “what if they tattooed the confession on their body”, and the answer is that it would be evidence. There’s precedent for this; a Latin American gang member had a criminal act and an entire crime scene tattooed on his back, with him depicted as the perp. Shockingly, he was convicted.
I have no answer to the OP’s question of what the state could/would do. I guess they could simply arrest him on sight for CP possession every time he leaves his home, and then he’d be a repeat offender. But I don’t believe they can compel you to modify your body, except maybe to grow out your hair or a beard for identification purposes. I know we could do that in military courts.
I’m not sure I understand what point you are trying to make here.
Whether or not any of them would work, though (and indeed the answer to this question in general), would depend on the language in the statute at issue. Which is why so many questions like this are difficult to answer in the abstract: statutes vary, and what might be a clear violation in one jurisdiction may be excluded from prosecution based on using different terms to describe prohibited behavior in another.
In general, though, laws will punish acts, not omissions. So it seems implausible that there would be a law saying “anyone with a tattoo with [insert prohibited thing] and does not have it removed shall be subject to a fine of… or be incarcerated for a term of not more than…” more likely it would be a law along the lines of “anyone who displays [insert prohibited thing] shall be subject to a fine of… or be incarcerated for a term of not more than…”
Perhaps there is a statute somewhere that makes “maintaining” a collection of one or more prohibited photos a crime, too. In which case, again, it’d be hard to answer the question in the abstract because first you’d need to evaluate the precise wording and how it may be defined.
@EinsteinsHund provides us with as good an example as I think we are likely to get of a real world scenario, with the act of public display being prohibited, and thus not merely having the tattoo on ones person. Honorable mention to @Telemark.
I know a few people who have extremely graphic pornographic images tattooed on themselves. Not my cuppa, but hey, it’s art.
This was one of the sillier things the US has ever done. Martin Gardner described the algorithm in Scientific American, I think it was some time in the 70s, and I could describe it in 10 seconds to anyone who understood the basics of number theory. An implementation of the algorithm in a program is another matter.
If someone had a defamatory tattoo, i.e. claiming a celebrity was a pedophile or otherwise making a libelous statement, one assumes that would be actionable, since libel law supposedly also applies to artwork and photos.
It seems to me that there have been prosecutions for possession of child porn that were entirely animated cartoons or CGI. I can’t say for sure there have been convictions though; I don’t follow child porn law closely. That may or may not be exactly the same issue as you cite, but would raise similar concerns. How old is a drawing?
See here for more:
I’d be interested to find a US case of that nature. I have not heard of one and I’d like to know what the theory is.
Not in the U.S. in the last roughly 20 years, at least.
OK, so suppose that the tattoo were made via some automated printing process (i.e., not a drawing made by a tattoo artist), and the image that was printed was a real photograph that was made of a real minor. And suppose that those facts are proven to the satisfaction of a court of law. In that case, the tattoo would unambiguously be a piece of child pornography, and thus illegal. And yes, of course the person with the tattoo would be arrested for it. But what then? The possession (not just display) of child pornography is illegal, and the person would still be in the possession of the tattoo. Would they, as part of their sentence, be forced to have the tattoo medically removed? Or maybe a big black square tattooed over it?
(I don’t know if “tattoo printers” actually exist, but they certainly could exist, so take that part as a given for the argument)
If we presume the law cannot force removal - so what? The person ends up in jail. Prosecuting someone while they were in jail - so as to put them in jail - seems to be redundant. IANAL but under what circumstances do sentences run concurrently rather than sequentially?
Then the person is offered the opportunity to have the tattoo removed. Possibly, should they choose not to (their choice) then upon release they can be rearrested and reconvicted again. So basically, life sentence on the installment plan until they choose to have it removed. Of course, without having it removed would presumably mean not eligible for parole, either.
OTOH, how would you have the evidence unless the person displays it in public or shows it to someone who informs the police? What’s the level of probable cause necessary to strip a person and examine his body? And if the police do that search without probable cause, does the evidence of the tattoo now become forever tainted as “fruit of the poisoned tree”? (Basically a “stay out of jail free” card?)
Great cite. Thank you. So the real story is that in 1996 Congress passed legislation to make it be illegal to create or possess virtual child porn. And in 2002 SCOTUS struck that part down.
The specific case decided was DoJ vs a porn producers trade group. So not an individual prosecution for possession or production. But there may well have been some in the intervening 6 years. Or maybe not.
Brian Dalton’s case got vacated before it made it to SCOTUS, but he was definitely sentenced to jail by a court for virtual child porn (his was textual, not animation).
Reading the WP entries on the Dalton case, and US vs. Handley case, I noted that SCOTUS has ruled that only possession of photographic or video CP may be outlawed.
These guys didn’t appeal to SCOTUS for whatever reason, but it seems they would have been exonerated if that were the case.
IANAL nor a CP enthusiast, so I don’t really understand the Handley case, but it sounds like it might have gotten an acquittal had it been appealed.
This is some more interesting reading on the topic of CP involving cartoons, comics, CGI, etc.
As is this:
It’s amazing the rabbit trails you can start down pretty easily. Despite no real interest in the topic itself.