# 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:** 5
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 12, 2008, 1:59am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/81 "2008-12-12T01:59:53Z")
The internet filtering thing is because a Christian fundamentalist holds the balance of power in the senate. The child porn thing is because of paranoia and no one being willing to say _anything_ that could be perceived as “soft” on the issue. Reading that article on the high rise development overlooking the school, between the lines, I think that probably most parents just don’t want their kids to be in a concrete jungle with high rise towering overhead, and they are letting the paranoids out to do their dirty work for them. ---
**Author:** ![Rune](https://avatars.discourse-cdn.com/v4/letter/r/e68b1a/32.png) [@Rune](https://boards.straightdope.com/u/Rune)\ **Post date:** [December 12, 2008, 2:00am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/82 "2008-12-12T02:00:14Z")
Such convictions will only serve to water down the concept of paedophilia. If see more of such nonsense, people are going to start thinking of paedophilia as a small prank instead of a serious crime. Do I know if a man convicted of paedophilia has raped a small child of merely had some fun and harmless cartoons on his computer? The ruling was a small but helpful step if you want to help making paedophilia more acceptable in society. But I wonder if there is any risk this will help to set precedence in other western countries? When [Ghazala Khan](http://en.wikipedia.org/wiki/Ghazala_Khan) was murdered some years back, and the family convicted, there was some talk about that setting precedence also in other European countries. Are different western countries juridical insular, or do we inspire each other. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [December 12, 2008, 2:26am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/83 "2008-12-12T02:26:45Z")
Although this subject has always interested me, I am coming late to this thread, so please forgive me if I am covering subjects already addressed (things move fast on SDMB!) And this is reference to US law, not Aussie. But the following cites are relevant: [US v Mento](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/4th/994813pv2.html), where the 4th US Circuit Court held that “an image is illegal if it appears to be Child Porn, even if computer-generated and no human being was ever photographed.” but this court case reversed the above on appeal: > **[Ashcroft v. Free Speech Coalition](https://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition)** > > Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case that struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech". The case was brought against the U.S. government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; a related case, Ashcroft vs ACLU: [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-1293](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-1293) ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 12, 2008, 5:12am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/84 "2008-12-12T05:12:05Z")
> [@Rune](#): > > Are different western countries juridical insular, or do we inspire each other. We inspire each other. Politicians (at least here) as well as other organizations and advocacy groups point at other countries all the time (“gays can marry in the Netherlands, why not here?” “British businesses can lay off workers more easily and the unemployment rate is lower”, etc…). ---
**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 12, 2008, 5:16am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/85 "2008-12-12T05:16:34Z")
I agree with **Princhester** about the school with the high rise. Australians are generally sensible about these things. But the media has in interest in being shrill and hysterical and thus effectively training everyone that the way to get attention is to behave according to the shrill hysterical stereotype. That story would not have been aired had not the parents savvily made it newsworthy with the paedo angle. They are thus rewarded with free publicity. So it goes. Pure beat-up, and everyone knows it. If anything, that story might incline people to suspect that the paedophile scare mongering has become absurd. Now I will have a read of Adams J’s decision… ---
**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 12, 2008, 5:47am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/86 "2008-12-12T05:47:31Z")
Interesting. In fact, Adams J substantially followed a court of higher authority (the Western Australian Court of Appeal) on the point about whether the statute (or at least, a very similar one) captured ficitional representations. Indeed, a similar statute was held in Canada also to capture fictional representations (and for that reason was held to be contrary to the Charter). So as a matter of interpretation, his view of the case is well-founded. He referred to the Acts Interpretation Act (which **Princhester** quoted above), but did not follow it. He also raised a point I had not - this material might be used to “groom” children. Shortly put, it seems well-established that as a matter of interpretation, the statutory language is capable of picking up fictional “persons”, and my hesitations expressed above (about ambiguity resulting in an interpretation favouring the subject) were misplaced. It also seems well-established that elsewhere, Charters and Bills of Rights might well render the arguments in favour of criminalising fictional child porn insufficient to sustain legislation which does so. For my part, I would prefer Parliaments making decisions about these things, not courts (acting pursuant to Bills of Rights), but reasonable minds can differ on this. ---
**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 12, 2008, 6:11am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/87 "2008-12-12T06:11:06Z")
Too many parentheses! Argh! ---
**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 12, 2008, 6:20am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/88 "2008-12-12T06:20:28Z")
> [@GuanoLad](#): > > Too many parentheses! Argh! Yowser! You’re right! I am guilty of the sin of not proofreading. At least none were nested, so there may be hope for me. But I doubt it. ---
**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 13, 2008, 1:58pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/89 "2008-12-13T13:58:51Z")
> [@Noel\_Prosequi](#): > > Indeed, a similar statute was held in Canada also to capture fictional representations (and for that reason was held to be contrary to the Charter). > … > It also seems well-established that elsewhere, Charters and Bills of Rights might well render the arguments in favour of criminalising fictional child porn insufficient to sustain legislation which does so. I think you’re overstating the scope of the Canadian decision, [R. v. Sharpe.](http://scc.lexum.umontreal.ca/en/2001/2001scc2/2001scc2.html) The Court held that the language of the offence did include “visual works of the imagination as well as depictions of actual people”. The Court also concluded that for the most part, the law could be upheld under the Charter, given its purposes: > [@](#): > > Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. However, the Court concluded that the offence was overbroad because it included two categories of “personal use” materials that did not come within these concerns: > [@](#): > > However, the law does capture the possession of two categories of material that one would not normally think of as “child pornography” and that raise little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use Criminalising possession of materials of those two types therefore was not consistent with the Charter. ---
**Author:** ![Laudenum](https://avatars.discourse-cdn.com/v4/letter/l/7993a0/32.png) [@Laudenum](https://boards.straightdope.com/u/Laudenum)\ **Post date:** [December 13, 2008, 2:30pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/90 "2008-12-13T14:30:58Z")
Just FYI, the law in Ireland is the same - a depiction of child porn is child porn. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [December 13, 2008, 3:04pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/91 "2008-12-13T15:04:02Z")
> [@Noel\_Prosequi](#): > > Interesting. > > In fact, Adams J substantially followed a court of higher authority (the Western Australian Court of Appeal) on the point about whether the statute (or at least, a very similar one) captured ficitional representations. Indeed, a similar statute was held in Canada also to capture fictional representations (and for that reason was held to be contrary to the Charter). So as a matter of interpretation, his view of the case is well-founded. He referred to the Acts Interpretation Act (which **Princhester** quoted above), but did not follow it. He also raised a point I had not - this material might be used to “groom” children. > > Shortly put, it seems well-established that as a matter of interpretation, the statutory language is capable of picking up fictional “persons”, and my hesitations expressed above (about ambiguity resulting in an interpretation favouring the subject) were misplaced. > It also seems well-established that elsewhere, Charters and Bills of Rights might well render the arguments in favour of criminalising fictional child porn insufficient to sustain legislation which does so. > > For my part, I would prefer Parliaments making decisions about these things, not courts (acting pursuant to Bills of Rights), but reasonable minds can differ on this. But it’s still a fucking stupid decision. What if I wrote this: “A ten year old child had sex with a nine year old child.” Apparently under your fucked up law, every Australian on the Straight Dope could go to prison if a prosecutor found out that you had this depiction of fictional child porn. Maybe you Australians should stop using the internet altogether. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [December 13, 2008, 3:30pm UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/92 "2008-12-13T15:30:53Z")
> [@Lemur866](#): > > But it’s still a fucking stupid decision. I agree. One of the reasons why can be seen from this court quote supplied by Northern Piper: > [@](#): > > Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. **Your Honor! Assumes facts not in evidence!** I would like to call attention to a book by Marjorie Heins, [Not In Front of The Children.](http://www.amazon.com/Not-Front-Children-Indecency-Censorship/dp/0813542219/ref=sr_1_1?ie=UTF8&s=books&qid=1229182042&sr=1-1) According to Heins, every one of the court’s numbered points is an assumption that is not supported by evidence. It’s a knee-jerk reaction that reveals societal biases, nothing more. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 14, 2008, 4:01am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/93 "2008-12-14T04:01:44Z")
> [@Lemur866](#): > > Maybe you Australians should stop using the internet altogether. Because just like in your country we all agree with all of our laws and every court decision made. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 14, 2008, 4:04am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/94 "2008-12-14T04:04:16Z")
> [@Lemur866](#): > > What if I wrote this: “A ten year old child had sex with a nine year old child.” Apparently under your fucked up law, every Australian on the Straight Dope could go to prison if a prosecutor found out that you had this depiction of fictional child porn. No, wouldn’t “cause offence to reasonable persons” which is part of the offence. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [December 14, 2008, 6:52am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/95 "2008-12-14T06:52:36Z")
> [@Princhester](#): > > No, wouldn’t “cause offence to reasonable persons” which is part of the offence. Thing is, though, while i can see that a depiction of the Simpsons characters having sex might “cause offence to reasonable persons,” in the same way that many crass or vulgar things might cause offence, i do NOT believe that it is reasonable to view such a depiction as having anything to do with child pornography. I don’t really buy the argument, made by some in this thread, that such cartoon depictions are problematic because they might feed or encourage the demand for actual child pornography depicting real children. And if by chance we DO find some cases where this happens, then we should prosecute the people for the REAL child pornography in their possession. The legislature is an ass, and while the judge in this case might have stayed within the so-broad-as-to-be-almost-meaningless definition of child pornography given by the lawmakers, i still find some of his reasoning and his arguments to be pretty tortuous. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [December 14, 2008, 7:06am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/96 "2008-12-14T07:06:12Z")
> [@Princhester](#): > > Because just like in your country we all agree with all of our laws and every court decision made. I didn’t say you agreed with it, but given these court cases from Australia you could be sent to prison for just about anything. Seems a bit risky to use the internet at all. ---
**Author:** ![Discordia](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Discordia](https://boards.straightdope.com/u/Discordia)\ **Post date:** [December 14, 2008, 7:37am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/97 "2008-12-14T07:37:09Z")
> [@Musicat](#): > > I agree. One of the reasons why can be seen from this court quote supplied by Northern Piper: **Your Honor! Assumes facts not in evidence!** > > I would like to call attention to a book by Marjorie Heins, [Not In Front of The Children.](http://www.amazon.com/Not-Front-Children-Indecency-Censorship/dp/0813542219/ref=sr_1_1?ie=UTF8&s=books&qid=1229182042&sr=1-1) According to Heins, every one of the court’s numbered points is an assumption that is not supported by evidence. It’s a knee-jerk reaction that reveals societal biases, nothing more. Amen. I could certainly argue that legalising child pornography would reduce actual incidents of pedophilia, by allowing law enforcement to monitor users more easily. Also, it may cause some pedophiles to be..satisfied. No clue if what I said is true, but it’s certainly conceivable. I really wish judges weren’t allowed to just make shit up. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 14, 2008, 9:39am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/98 "2008-12-14T09:39:12Z")
> [@mhendo](#): > > Thing is, though, while i can see that a depiction of the Simpsons characters having sex might “cause offence to reasonable persons,” in the same way that many crass or vulgar things might cause offence, i do NOT believe that it is reasonable to view such a depiction as having anything to do with child pornography. > > I don’t really buy the argument, made by some in this thread, that such cartoon depictions are problematic because they might feed or encourage the demand for actual child pornography depicting real children. And if by chance we DO find some cases where this happens, then we should prosecute the people for the REAL child pornography in their possession. Agreed. Doesn’t have anything to do with what I said, though ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 14, 2008, 9:41am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/99 "2008-12-14T09:41:19Z")
> [@Lemur866](#): > > I didn’t say you agreed with it, but given these court cases from Australia you could be sent to prison for just about anything. No you couldn’t. Mind you, unlike in the United States we can’t be sent to prison for breaching a site’s terms of use, like it was just found you could be. So we all have our share of stupid laws. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 14, 2008, 9:48am UTC](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496/100 "2008-12-14T09:48:43Z")
Sorry about the triple post. Regarding my last post, read this: [http://www.groklaw.net/article.php?story=20081128005538214](http://www.groklaw.net/article.php?story=20081128005538214) [Previous page](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496.md?page=4) [Next page](https://boards.straightdope.com/t/stupid-fucking-australian-courts-cartoon-child-porn/476496.md?page=6)