# Stupid fucking Australian courts: cartoon=child porn **URL:** \ **Category:** The BBQ Pit\ **Created:** [December 10, 2008, 3:05am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496 "2008-12-10T03:05:08Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [December 10, 2008, 10:46am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/41 "2008-12-10T10:46:57Z")
**Princhester** , that’s the provision I was referring to. As I say, context can displace that definition. I would be very surprised if Adams wasn’t aware of it, however, so he must have had a reason for coming to his conclusion. I am hesitant to be critical until I have read the decision (if I ever do). If NSW law is anything like it is elsewhere, there is a route of appeal from Adams J to the Court of Appeal (albeit by way of leave). This case might well attract leave if the accused wants to take it further. This is not a trivially easy area of discourse. It emerges throughout the criminal law. In cases of forgery, for instance, it makes a difference whether you forge a document signed by a person who actually exists, or merely forge a signature of a fictitious person. This is not resolved typically by statute but by case law. A recent decision involved a person being convicted of the conceptual equivalent of uttering financial bonds which were forged. In truth, the bonds were not copies of real bonds, but invented documents that looked impressive but did not represent any bonds ever actually issued. He was acquitted. This raises questions about how far that doctrine might go - if you forge a realistic looking $10 bill, but put on it a number that was never issued, is it a forgery? Subtle questions arise when considering the difference in law between the real and the fictitious. **Cuckoorex** , the law about abortion in Australia (and, no doubt, elsewhere) is not arrived at by first trying to determine what a “person” is. That process may inform the _policy_ behind whatever the legislature enacts the law to be, but not the law itself. In those places where it is prohibited, the law simply forbids abortion except in those (defined) circumstances where it is justified. (Those justifications are now read extremely widely. In my jurisdiction, abortion is illegal but so set about with wide exceptions that there hasn’t been a prosecution in quarter of a century.) So while I understand your connecting the two issues, for the purposes of the law they are separate. An abortion case will never involve a "fictitious’ mother. I understand your issue about thoughtcrime, too, and it may be that ultimately your view prevails. But the debate is not resolved by a process of classification by the attribution of pejorative epithets. The large question (aside from whether Adams J has correctly interpreted the law) is whether in this specific type of case, the thoughts are so clearly linked to acts and escalations of the sort I described in an earlier post as to justify criminalising them. That is a matter of judgment. The slippery slope argument you raise about a threesome with Ang and Sal is not compelling. Such arguments typically don’t hold much weight. Courts typically respond by saying they will deal with the case before them now, and worry about a case involving you, movie stars and a glazed expression if and when it arrives. ---
**Author:** ![Cuckoorex](https://avatars.discourse-cdn.com/v4/letter/c/ad7895/32.png) [@Cuckoorex](https://boards.straightdope.com/u/Cuckoorex)\ **Post date:** [December 10, 2008, 11:04am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/42 "2008-12-10T11:04:19Z")
> [@Noel\_Prosequi](#): > > The slippery slope argument you raise about a threesome with Ang and Sal is not compelling. Such arguments typically don’t hold much weight. Courts typically respond by saying they will deal with the case before them now, and worry about a case involving you, movie stars and a glazed expression if and when it arrives. That’s partly my point; it’s a fictional scenario involving REAL, living people (albeit of the age of legal consent in every country as far as I know), and results in NO actual sexual activity, therefore charges of rape or adultery or whatnot are not warranted. If I produce a cartoon that depicts these women involved in sex acts, what are the legal ramifications? Can someone doing this be tried for sex crimes, or is it something more like invasion of privacy, defamation of character, etc? In any case, these are REAL people involved, glazed expression notwithstanding. Who is harmed by depictions of the Simpsons involved in ANY unsavory situation? I would think Matt Groening would be most offended and potentially harmed by this and might file a suit to have such depictions removed/destroyed/cease and desist, whatever. Who, exactly, is the law protecting? And what kind of crime is actually being committed here, if any? ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [December 10, 2008, 11:14am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/43 "2008-12-10T11:14:45Z")
The crime being committed is defined - possession of child porn. The reasoning behind making it criminal to possess _fictitious_ child porn is something like what I said in Post 28 above. The arguments revolve around ideas of feeding and developing a market for prurience of a sort so specifically dangerous that it should be criminalised. But we are not having a typical furious Pit exchange, here. I am not particularly married to one interpretation of the specific legislation involved, nor am I married to either of the policy positions lying behind that argument. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 10, 2008, 11:43am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/44 "2008-12-10T11:43:08Z")
> [@don\_t\_ask](#): > > I personally can’t understand that anyone is surprised by the decision. I regularly see shorts of computer games at the movies and even on a gigantic screen I have trouble telling whether I am watching a movie short or a game graphic. If child sex was rendered at that degree of realism would anyone seriously argue “but it’s only a cartoon” ? I definitely would. Why should I care how realistic a depiction is if nobody was harmed? Do you care about realistic depictions of murders in movies or computer games? The only problem with ultra-realistic depiction would be if they were so perfect that the authorities couldn’t determine anymore if it’s actually a photograph of a real child being abused or a CGI-created image, because then it could become a loophole for people producing or owning real childporn. Short of that, I can’t see it as a problem besides the “eww” factor. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 10, 2008, 11:53am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/45 "2008-12-10T11:53:20Z")
> [@Noel\_Prosequi](#): > > In this section: > child pornography means material that depicts or describes, This part shows what we can blame the legislator for. > [@](#): > > in a manner that would in all the circumstances cause offence to reasonable persons And this part shows what we can blame the judge for. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [December 10, 2008, 11:54am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/46 "2008-12-10T11:54:35Z")
> [@Noel\_Prosequi](#): > > The arguments revolve around ideas of feeding and developing a market for prurience of a sort so specifically dangerous that it should be criminalised. Australia is a big Nanny State and that was one of my major problems with living there. Policy wonks who aren’t really as clever as they think they are decide what’s good for the people and what’s not. Most Aussies don’t realize the extent to which the movies/TV shows they watch are censored. I note the argument that that’s what elections are for, but … really, elections aren’t for this kind of stuff, and we all know it. That’s why these kind of developments never (or hardly ever) get reversed - as others have noted here, no serious politician is willing to be the person to stand up for cartoon pornography aficionados. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 10, 2008, 12:03pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/47 "2008-12-10T12:03:38Z")
> [@Noel\_Prosequi](#): > > I suspect the reasoning underlying wide interpretations of these sorts of laws is the notion that indulging a sexual vice feeds an appetite for more (and more extreme) material. So, for instance, allowing porn depicting real young women (who tend to look like children much more than Simpsons’ characters do) could lead porn addicts to eventually turn to child porn. We’re fortunate that porn involving actual humans is forbidden, or who knows what extreme perversions would spread (people could begin to draw nude toons, or something equally horrible, for instance). :rolleyes: ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 10, 2008, 12:17pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/48 "2008-12-10T12:17:53Z")
> [@Noel\_Prosequi](#): > > The real question is whether the distinction between having a real victim and having a synthetic victim ought be a matter only going to penalty, or whether it ought to determine whether an offence was committed at all. > > And I am not purporting to answer the question. I don’t think it can be answered by a priori reasoning. Hmmm… How many crimes can you cite whose mere depiction is itself a crime? How often can you be prosecuted because an imaginary person committed an imaginary crime on another imaginary person? How many people are prosecuted on behalf of a “synthetic victim”? That’s just nonsentical and completely unreasonable. This question definitely can be answered a priori. This child porn issue had reached absolutely ridiculous and absurd levels. Not an ounce of common sense seems to have survived. Do you realize we’re seriously discussing about whether or not the rape of toons should be considered a severe criminal offence? ---
**Author:** ![Baldwin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baldwin/32/7264_2.png) [@Baldwin](https://boards.straightdope.com/u/Baldwin)\ **Post date:** [December 10, 2008, 12:32pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/49 "2008-12-10T12:32:28Z")
> [@don\_t\_ask](#): > > I personally can’t understand that anyone is surprised by the decision. I regularly see shorts of computer games at the movies and even on a gigantic screen I have trouble telling whether I am watching a movie short or a game graphic. If child sex was rendered at that degree of realism would anyone seriously argue “but it’s only a cartoon” ? I sure would. Only a cartoon; at no point was anything done to a real person. For that matter, what’s the problem with owning pictures of actual children being sexually molested? I can own pictures of people being murdered. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 10, 2008, 12:49pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/50 "2008-12-10T12:49:03Z")
I am not impressed by technical arguments. The law and legal and judicial systems are there to serve the people and not the other way around. I have little interest in the legalities that make cartoons illegal and torture legal. The result is wrong and the system is broken if it produces such results. I also find it sad that western society is under such a mass hysteria concerning “child porn” that cartoons are now considered illegal or that photos of naked children which are not in any way sexual can also be illegal and even land parents in trouble. It is a sick society where breastfeeding in public or innocent nakedness is considered obscene. And yet, not only we have no problem showing violence and killing but we are very willing to send our military to inflict real death and killing and destruction on innocent people for no good reason. We are a very sick society if seeing a naked child we see something obscene. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 10, 2008, 1:38pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/51 "2008-12-10T13:38:23Z")
> [@sailor](#): > > The law and legal and judicial systems are there to serve the people and not the other way around. I have little interest in the legalities that make cartoons illegal and torture legal. The result is wrong and the system is broken if it produces such results. And you’re confident that your personal opinion is enough to establish that this law doesn’t serve the people? Isn’t it the people as a whole who get to make that decision? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 10, 2008, 1:41pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/52 "2008-12-10T13:41:48Z")
> [@Isamu](#): > > I guess the public prosecutors are as much to blame as anyone else. Someone’s going to make their carreer and they don’t care who they take down to do it. What’s your basis for saying this? Are you saying that a public prosecutor has the right to ignore a law passed by the Legislature? If there is credible evidence that a crime has been committed, based on the facts and the relevant statute, prosecutors have a duty to move forward with it. They can’t just say, “I don’t like this statute so I won’t prosecute anyone under it.” Nor can they say, “I think the elected representatives of the people were wrong when they passed this statute so I’ll ignore it.” As agents of the executive, prosecutors are required to implement laws passed by the Legislature. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 10, 2008, 1:54pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/53 "2008-12-10T13:54:20Z")
> [@Northern\_Piper](#): > > And you’re confident that your personal opinion is enough to establish that this law doesn’t serve the people? Isn’t it the people as a whole who get to make that decision? The people as a whole do not make the laws (and it is probably better that way). Their representatives, who are supposed to have a bit more sense, make the laws and even then quite often get it wrong. The fact that the laws were done by democratically elected representatives of the people does not automatically make them right or even mean they would be supported by the majority. And the people can always be made to support extremely stupid laws in order to prevent the latest hysterical craze, whether it be terrorism or child pornography. A law which penalizes cartoons is clearly and inequivocally wrong and stupid IMHO. In this case I also find it is a sign of something very sick and very wrong with our western society. We have lost all reason and have gone all hysterical and paranoid about child pornography. Sort of like some Muslims went over those cartoons about their prophet. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [December 10, 2008, 2:15pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/54 "2008-12-10T14:15:07Z")
> [@Northern\_Piper](#): > > What’s your basis for saying this? Are you saying that a public prosecutor has the right to ignore a law passed by the Legislature? > > If there is credible evidence that a crime has been committed, based on the facts and the relevant statute, prosecutors have a duty to move forward with it. They can’t just say, “I don’t like this statute so I won’t prosecute anyone under it.” Nor can they say, “I think the elected representatives of the people were wrong when they passed this statute so I’ll ignore it.” As agents of the executive, prosecutors are required to implement laws passed by the Legislature. Well, at the same time I was practicing law in Australia I was dating a public prosecutor, so I know a little. They choose. They follow guidelines, of course, but they take a number of factors into consideration having regard to the interests of all parties (victim, accused and the community). I don’t know anything about the background of this case so I could be wrong but it smells bad. I trust my sense of smell. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [December 10, 2008, 3:56pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/55 "2008-12-10T15:56:46Z")
> [@Isamu](#): > > Australia is a big Nanny State and that was one of my major problems with living there. I think another problem is that Australia, and please correct me if I’m wrong, has no binding constitutional protections similar to the American Constitution or the Canadian Charter of Rights and Freedoms. A Charter challenge was used some years ago to strike down exactly this type of law in regards to fictional drawings and writings. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 10, 2008, 6:09pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/56 "2008-12-10T18:09:18Z")
A kangaroo court it was, I’m telling ya. 😉 ---
**Author:** ![Dead\_Badger](https://avatars.discourse-cdn.com/v4/letter/d/848f3c/32.png) [@Dead\_Badger](https://boards.straightdope.com/u/Dead_Badger)\ **Post date:** [December 10, 2008, 6:29pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/57 "2008-12-10T18:29:47Z")
> [@Northern\_Piper](#): > > What’s your basis for saying this? Are you saying that a public prosecutor has the right to ignore a law passed by the Legislature? No idea about Australia, but they certainly do in the UK, and Australia’s common law is based upon that of the UK. Just today, in fact, the Director of Public Prosecutions took the unprecedented step of publishing his reasons to forgo a prosecution, explaining that while a crime had been committed, and there was sufficient evidence to prosecute, a prosecution was not in the public interest. > **[BBC NEWS | UK | England | Hereford/Worcs | No charges over assisted suicide](http://news.bbc.co.uk/2/hi/uk_news/england/hereford/worcs/7773540.stm)** > > No charges will be brought against the parents of a paralysed rugby player who died in a Swiss assisted suicide clinic. A bloody good decision it was too, if you ask me. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [December 11, 2008, 1:32am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/58 "2008-12-11T01:32:13Z")
> [@matt\_mcl](#): > > I think another problem is that Australia, and please correct me if I’m wrong, has no binding constitutional protections similar to the American Constitution or the Canadian Charter of Rights and Freedoms. > > A Charter challenge was used some years ago to strike down exactly this type of law in regards to fictional drawings and writings. What you say is basically right. We have a constitution, but it does not contain within it an entrenched “Bill of Rights”. Several times throughout our history a “Bill of Rights” has been proposed, but then defeated in public referrendums. Having said that, the courts have (somewhat tortuously) managed to draw out several “rights” from the wording of the constitution we have now. With regard to free speech, the courts have found that a right to free _political_ expression is a necessity for democracy and therefore must be implied in the constitution.:rolleyes: (i.e., it’s not there but it should be so it is). Because of this activism seen in the High Court, some observers say that we should just wait and let the High Court extrapolate a set of rights from the broad language of the constitution, rather than draw up a seperate Bill of Rights. However, as it stands now there is no basic right to free speech in general. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [December 11, 2008, 2:46am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/59 "2008-12-11T02:46:50Z")
> [@Dead\_Badger](#): > > No idea about Australia, but they certainly do in the UK, and Australia’s common law is based upon that of the UK. Just today, in fact, the Director of Public Prosecutions took the unprecedented step of publishing his reasons to forgo a prosecution, explaining that while a crime had been committed, and there was sufficient evidence to prosecute, a prosecution was not in the public interest. > > … This principle applies in Australia as well, but it is not a licence for the DPP to ignore laws he doesn’t like. In deciding a prosecution is “not in the public interest”, the DPP is not free to take into account his idiosyncratic general unhappiness with a particular law passed by Parliament. Generally the sorts of cases which are likely to be discontinued on public interest grounds are those where the accused is terminally ill, or suffering a debilitating illness like dementia, or those in which the offence is purely technical. You will note that in the case you cite, the DPP is not indicating that he will discontinue all assisted suicide cases, merely that on the particular circumstances of this case, discontinuance was warranted. I apprehend that you will seize upon the “technical offence” point, and say cartoon porn comes within that. The difficulty is, we don’t know what else was involved in the case. The accused may have been caught with 100 undoubted live child porn images and one Simpson’s image, and was only arguing about the Simpsons one. Or he may have had a history indicative that it was in the public interest to proceed. Until someone posts the judgment, we can’t say. And even then, the reasons which might perfectly legitimately have motivated the prosecutor may not be apparent in the court’s reasons. ---
**Author:** ![GuanoLad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guanolad/32/42_2.png) [@GuanoLad](https://boards.straightdope.com/u/GuanoLad)\ **Post date:** [December 11, 2008, 3:42am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/60 "2008-12-11T03:42:46Z")
As we’re talking about child abuse laws in Australia, maybe [this article](http://www.theage.com.au/articles/2008/12/11/1228584982919.html) is of interest. [Previous page](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496.md?page=2) [Next page](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496.md?page=4)