Well, that I can understand.
You’ll have to forgive me if it’s the fault of the legislature itself, the way it seemed to be presented was that it was at the judge’s discretion.
The wording is a bit headache-inducing, and it seems a bit unsettling to have so many ‘ifs’ and ‘coulds’ in legislature. Hypotheticals in law make me a little nervous.
I think it would have jurisdiction. Unless I read the decision I couldn’t form a view on whether I think it likely that the High Court would see sufficient importance in the case to hear it, though.
Unless and until it is overturned, it cannot really be swept aside, and is likely to be the pre-eminent precedent on the question of whether sexually explicit depictions of cartoon persons are child porn in New South Wales. It would be hard to distinguish the case unless the drawings in question were even less realistic than the Simpsons, and given that the Simpsons are pretty damn stylised depictions as it is…
This is part of what boggles my mind so much.
A realistic CGI portrayal? I’d understand. But… Simpsons characters? I suppose I could draw some stick figures with name badges and have them look less realistic, but even that’s pushing it.
They may be stylised depictions, but that is not the question that (at least as far as I can tell on present indications) the judge had to decide. The question was: what were they stylised depictions of?
You can straight away see what the judge’s dilemma is likely to have been.
Are they stylised depictions of cats? Houses? Apes (ok, Homer maybe)? No, they are stylised depictions of people. And there is I suspect no “let out” clause in the legislation that says that “stylised” is sufficient to mean that a depiction of a person is not a depiction of a person.
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.
The relevant legislation would appear to be s91H of the Crimes Act 1900 (NSW).
Here it is (with the most relevant parts in bold):
91H Production, dissemination or possession of child pornography
(1) Definitions
In this section:
child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
© as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
disseminate child pornography, includes:
(a) send, supply, exhibit, transmit or communicate it to another person, or
(b) make it available for access by another person, or
© enter into any agreement or arrangement to do so.
(2) Production or dissemination of child pornography
A person who produces or disseminates child pornography is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
(3) Possession of child pornography
A person who has child pornography in his or her possession is guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) Defences
It is a defence to any charge for an offence under subsection (2) or (3):
(a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or
(b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or
© that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose, or
(d) that the defendant was a law enforcement officer acting in the course of his or her official duties, or
(e) that the defendant was acting in the course of his or her official duties in connection with the classification of the material concerned under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.
(5) Defence to possession of child pornography
It is a defence to any charge for an offence under subsection (3) that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its pornographic nature, took reasonable steps to get rid of it.
Assuming that the law exists to protect children, rather than being a rather specific form of anti-obscenity law, do you agree that the one that does not involve real children in any way is less bad?
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. The notion that addiction to porn tends to escalate as the addict becomes increasingly jaded by material that formerly was sufficient for the addict’s purpose is pervasive. Thus, possession of this sort of material is conceived of as a significant social evil.
Is this reasoning sound? My intuition is that there is an escalation as I have described above, but I don’t know what the studies say. Is that reasoning sufficient to criminalise possession of porn where there is no immediate victim? Reasonable minds might differ. That’s why we have elections.
What do you think of the black letter decision itself, Judge Noel? You have more experience in the crim field than I*.
*Wouldn’t be hard
I’m kind of waiting for the day a judge (Spain’s Garzón might take it up, he likes anything that sounds like a noisy crusade) decides to start banning greek mythos on grounds of, say, zoophily.
I don’t think any proponent of the position of Adams J would disagree. There are lots of cases where less bad versions of a crime are still a crime, and the distinction only goes to penalty. Assault occasioning bodily harm is a crime. It is less bad to assault someone without causing bodily harm, but it is still a crime.
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. As I said above, this is a matter for the democratic process.
I say we try Matt Groening for murder, for all the violent killings that have been depicted on all his shows.
I am not a judge, but I have struggled myself with the question in my jurisdiction, where we have similarly worded laws. When so struggling, my inclination was against the position taken by Adams J, but not so clearly so that I am offended or outraged by the conclusion reached. And I have not read his Honour’s reasoning, so he may have relied on authority or arguments of which I am not aware.
As you observed above, the language “depicts or describes” seems capable of being read widely as he did. The words “or apparently so” in the definition I quoted above may have been intended to pick up the fact that it is frequently impossible to find the person depicted and prove their age formally, and therefore “apparently” merely plugs that gap. On the other hand, they might be read to pick up the case of the drawing we have here.
On balance, the inclination I had was based on the premise that one construes penal legislation against the prosecution where there is doubt.
But I well understand that in reality, it is possible to digitally adapt real-victim porn so that it is still realistic enough to serve its purpose, but in such a way that it is no longer possible to be sure that the person depicted was ever real. For example, the black and white line drawings of the couple in the Joy of Sex when it first came out were hyper-realistic (and no doubt were done from photographs) yet it is not possible to be completely sure of that. It is entirely possible that Adams J had in mind avoiding the creation of a loophole that allowed arguments of that sort to be raised where real abuse was involved.
The london olympics 2012 logo design team is in BIG trouble if they ever come to Australia.
Noel I know you’re not a judge, I was just implying you should put yourself in a judge’s shoes.
You seem to take it as read that “a person” means a real person. I see that as a gloss. If someone described a painting of a person fishing that was not based on an actual scene as a painting that “depicts a person fishing” it would never occur to me that this was wrong.
Thanks, Princhester. Just wanted to put on the record that I am not a judge in case someone misunderstood that, and assumed I wrote with greater authority than I have.
To address your point, no, I don’t take it as read that “person” means real person, although there is a provision of the Acts Interpretation Act (which I gather is relevantly in place throughout Australia) that at least suggests that “person” means an actual individual. That, of course, is subject to displacement by context.
My real issue is that the language is capable of being read in two ways without a clear textual reason to adopt either one, and where arguments about the purpose of the legislation can be advanced for either. In those circumstances, one traditionally defaults to the interpretation which favours the subject.
Having said that, I am quite willing to rely on Adams J’s decision as authoritative. As I said above, I have no profound intellectual struggle with it, largely because your way of reading the legislation is a perfectly sensible one, and it is merely a matter of judgment whether the ambiguity which I perceived is so marked as to invoke the “favour the subject” rule.
Anti child pornography laws are meant to protect children from harm.
Children harmed by this drawings > 0
Ergo, this is stupid beyond belief.
Depiction this and depiction that just doesn’t cut it, or else 99% of the Earth population should be in jail for having an action movie DVD, a murder novel, having played hangman in school or one of thousands of ways which all kinds of violent and unlawful acts are played in fiction.
Icky?, yes, harmful?, please explain how.
The NSW InterpretationAct seems to be the relevant one. It says that
“person” includes an individual, a corporation and a body corporate or politic.
and
“individual” means a natural person.
“Natural” person usually just means a person other than a corporation etc, which takes us nowhere. If one says natural means real as opposed to made up, then I guess that helps, but it’s an odd usage. There may be other helpful references, I’m not going to research it carefully.
I’m coming around to your point of view, if only from applying “favour the subject”.
It’d be nice if the legislature hadn’t fudged this. I doubt they didn’t think of the dilemma.
I would assume that “natural” means a human being that was produced by natural processes. If someone wanted to argue that ANY depiction of a being produced by human beings was, by extension, a “natural person” I suppose they could attempt it, but at what point do we draw the line? Since the definition of “person” seems to be so important here, what does Australian law say about “personhood” in regards to abortion (if anything at all)? You may be correct in describing the legal definitions and ramifications involved in this case, but to me it all seems disturbingly like a gateway to prosecution for thought crimes. What next? If I fantasize about a three-way with Angelina Jolie and Salma Hayek, am I guilty of some sort of crime?
I think the EU has the same rules. At least the Danish laws were amended in 2003 after the EU council decided that fictitious material portraying underage sex acts should be illegal too, to the extend that the material is realistic looking.
I’m thinking plays by Shakespeare really ought to be banned. Juliet was only 13! And paintings by the Italian and Dutch masters depicting the naked baby Jesus are nothing short of paedophilia!
Yes. If no person has been harmed in the creation of the movie or game, then no laws should prohibit it. We don’t need to make thought crimes or laws against the icky. In addition if we were to start censuring fiction why not fictional violence, or fictional rapes, etc.
Britain has got their own problems. Blocking access to Wikipedia over a 32 year old Scorpions album. (Wikipedia falls foul of British censors). There’s also an album by Nirvana with a naked baby that probably ought to go then.