# Why is child pornography illegal?
**URL:** https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764
**Category:** Factual Questions
**Created:** [January 6, 2001, 10:07pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764 "2001-01-06T22:07:48Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@CrankyAsAnOldMan](https://boards.straightdope.com/u/CrankyAsAnOldMan)
#### Post date: [January 6, 2001, 10:07pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/1 "2001-01-06T22:07:48Z")
I hope this question doesn’t make me look like a scumbag. I object to pedophilia as much as the next overprotective mother. But intellectually, I’m just curious why it is illegal (in the US, anyway) when other “objectionable” forms of pornography are not.
The best argument I can come up with is that its subjects, being below the age of consent, are being exploited without sufficient maturity to have made an informed decision. But what about child pornography that doesn’t use Live subjects (that is, it isn’t photography or video)? Fiction, say, or animation, or drawings? Is that illegal? It doesn’t meet the same standard of “exploitation”.
I imagine people could argue that that the viewing of child pornography encourages sexual predation. If this can be proved, then why not outlaw forms of pornography that depict other illegal behavior, such a rape-oriented porn? Besides, I suspect others could argue that having pornography as an outlet helps prevent behavior. I can’t speak to the validity of such claims, I’m just acknowledging that they’re possibilities.
Anyway, what’s the basis for child pornography being verboten?
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### Author:  [@HeyHomie](https://boards.straightdope.com/u/HeyHomie)
#### Post date: [January 6, 2001, 11:12pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/2 "2001-01-06T23:12:22Z")
Well, in order for me to view a VHS tape of somebody having sex with a child, _somebody has to have sex with_ a child. It may seem painfully obvious, but I think the idea is that if there is one less reason for a person to have sex with a child, then that’s a good thing.
IANAL, but…
I’m pretty sure that fiction depicting sexual abuse of children (child pronography by way of words, if you will) is illegal. ISTR a time when I was 17 and stole one of dad’s little porno novels. There was a passage in there about some dude having passionate sex with a woman. The dude kept thinking to himself “She **can’t** be a day over 15!” But the author never actually _said_ “She was 15!” A fine distinction, but enough to keep the author out of legal trouble, one supposes.
As for animation/drawings/etc., I can only assume that it’s also illegal under current statutes.
Somebody will be along in a moment with a better explanation…
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [January 6, 2001, 11:23pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/3 "2001-01-06T23:23:33Z")
The ACLU – not exactly anti-porn – has no objection with the ban on child porn. Their argument is that since it’s illegal to have sex with a minor, any child porn is evidence of a crime, not protected speech.
This argument is fine for any photographs/films, but doesn’t seem to cover fiction/drawings.
The main reason it’s so illegal is that it’s an easy target. No one’s going to stand up in favor of it, so legislatures are happy to pass laws against it. The people arrested don’t usually have the wherewithall to appeal the conviction on constitutional grounds, and even if they did, it very unlikely the law would be overturned.
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### Author:  [@handy](https://boards.straightdope.com/u/handy)
#### Post date: [January 6, 2001, 11:36pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/4 "2001-01-06T23:36:50Z")
Actually, the main reason it is illegal is because it encourages more to be made.
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### Author:  [@BobT](https://boards.straightdope.com/u/BobT)
#### Post date: [January 6, 2001, 11:50pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/5 "2001-01-06T23:50:48Z")
The Supreme Court decision on this said
> [@](#):
>
> (a) The States are entitled to greater leeway in the regulation of pornographic depictions of
> children for the following reasons: (1) the legislative judgment that the use of children as subjects
> of pornographic materials is harmful to the physiological, emotional, and mental health of the child,
> easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413
> U.S. 15 , for determining what is legally obscene is not a satisfactory solution to the child
> pornography problem; (3) the advertising and selling of child pornography provide an economic
> motive for and are thus an integral part of the production of such materials, an activity illegal
> throughout the Nation; (4) the value of permitting live performances and photographic
> reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis;
> and (5) recognizing and classifying child pornography as a category of material outside the First
> Amendment’s protection is not incompatible with this Court’s decisions dealing with what speech
> is unprotected. When a definable class of material, such as that covered by [458 U.S. 747, 748] the New York statute, bears
> so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is
> clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection. Pp. 756-764.
>
> ```
> (b) The New York statute describes a category of material the production and distribution of which is not entitled to First
> Amendment protection. Accordingly, there is nothing unconstitutionally "under-inclusive" about the statute, and the State is
> not barred by the First Amendment from prohibiting the distribution of such unprotected materials produced outside the
> State. Pp. 764-766.
>
> (c) Nor is the New York statute unconstitutionally overbroad as forbidding the distribution of material with serious literary,
> scientific, or educational value. The substantial overbreath rule of Broadrick v. Oklahoma, 413 U.S. 601 , applies. This is
> the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. "[W]hatever
> overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute's]
> sanctions, assertedly, may not be applied." Broadrick v. Oklahoma, supra, at 615-616. Pp. 766-774.
>
> ```
The case was New York v. Ferber (458 U.S.A. 747)
You can read it at [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/458/747.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/458/747.html)
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### Author:  [@KellyM](https://boards.straightdope.com/u/KellyM)
#### Post date: [January 7, 2001, 2:03am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/6 "2001-01-07T02:03:55Z")
The Supreme Court did, IIRC, recently hold that the federal law relating to child porn (the name of which eludes me) does not reach drawings, models, or computer-generated imagery as long as “no children was harmed in the creation of this movie”. The rationale behind _Ferber_ (which **BobT** quoted from) is that permitting child porn to be banned served to protect children from the harm inherent in being used to produce child porn. Absent harm to a child in production, the child porn exception to free speech is unjustified and the speech is again protected. This concerns some people because of the quality of computer-generated animation today means that convincing child porn can be created without actually using children.
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### Author:  [@kanicbird](https://boards.straightdope.com/u/kanicbird)
#### Post date: [January 7, 2001, 2:13am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/7 "2001-01-07T02:13:11Z")
> [@](#):
>
> Well, in order for me to view a VHS tape of somebody having sex with a child, somebody has to have sex with a child.
Two problems with that come to mind:
1 Having sex w/ a person over the age of consent but looks and is portrayed as a child, I believe qualifies as child porn.
…and…
2 In ‘regular’ porn people get paid for having sex - isn’t that illeagle in most places where the films are produced?
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### Author:  [@wbricks](https://boards.straightdope.com/u/wbricks)
#### Post date: [January 7, 2001, 2:34am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/8 "2001-01-07T02:34:29Z")
> [@](#):
>
> 1 Having sex w/ a person over the age of consent but looks and is portrayed as a child, I believe qualifies as child porn.
It was just recently that the Supreme Court (maybe a state supreme court) ruled that this was not the case because the law would then become too vague. How can you determine if a young looking girl is portraying herself as a child?
For instance, is the movie “Blue Lagoon” where Brooke Shields bares all now “child pornography”? She was young and obviously playing a young character, but was she a 17 year old young character or a 19 year old young character?
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### Author:  [@AWB](https://boards.straightdope.com/u/AWB)
#### Post date: [January 7, 2001, 4:32am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/9 "2001-01-07T04:32:40Z")
Actually, it was in “Pretty Baby” where a definately underaged Brooke Shields was shown nude. In “Blue Lagoon”, any nudity was done by a body double.
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### Author:  [@wbricks](https://boards.straightdope.com/u/wbricks)
#### Post date: [January 7, 2001, 5:30am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/10 "2001-01-07T05:30:23Z")
I wasn’t really talking about Brooke’s actual age than the age of the character. It was in reference to the situation where someone is over the age of consent but made to look like they are not over the age.
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### Author:  [@KellyM](https://boards.straightdope.com/u/KellyM)
#### Post date: [January 8, 2001, 7:54am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/11 "2001-01-08T07:54:13Z")
> [@](#):
>
> \*Originally posted by k2dave \*
> **Having sex w/ a person over the age of consent but looks and is portrayed as a child, I believe qualifies as child porn.**
This is not the case. It is perfectly legal (as far as the child porn statutes go) to use an 18-year-old actor who looks much younger. (You still have to deal with obscenity statutes, of course.)
> [@](#):
>
> **In ‘regular’ porn people get paid for having sex - isn’t that illeagle in most places where the films are produced?**
First Amendment. The law against prostitution is trumped by the right of individuals to express themselves. (At least, that’s the argument I would make if asked to defend someone charged with prostitution while making a porn film.)
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [January 8, 2001, 8:59am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/12 "2001-01-08T08:59:48Z")
> [@](#):
>
> \*Originally posted by k2dave \*
> In ‘regular’ porn people get paid for having sex - isn’t that illeagle in most places where the films are produced?
I think there’s a slight difference between prostitution and porn movies.
1. Here’s $50. Have sex with me.
2. Here’s $50. Let me film you having sex with that dude.
In case 2, the sex is free (the best kind!) and money is being exchanged for permission to view the sex.
And that, ladies and gentleman, is my justification for watching porn.
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### Author:  [@Badtz\_Maru](https://boards.straightdope.com/u/Badtz_Maru)
#### Post date: [January 8, 2001, 9:45am UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/13 "2001-01-08T09:45:35Z")
In Hawaii, it’s not illegal for an adult to have sex with a 14 year old girl. I bet if you taped it you couldn’t sell it legally in the U.S., though.
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### Author:  [@AWB](https://boards.straightdope.com/u/AWB)
#### Post date: [January 8, 2001, 1:07pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/14 "2001-01-08T13:07:33Z")
> [@](#):
>
> \*Originally posted by friedo \*
> \*\*I think there’s a slight difference between prostitution and porn movies.
>
> 1. Here’s $50. Have sex with me.
>
> 2. Here’s $50. Let me film you having sex with that dude.
>
> In case 2, the sex is free (the best kind!) and money is being exchanged for permission to view the sex. \*\*
It’s more a definition of acting. That is, the actors are being paid to play characters that like having lots of sex.
A parallel with “normal” acting. Shelly Winters was cast as the abusive mother of Barry Williams in “Wild In The Streets”. In one scene, she slaps her son. Being a method actor, she _really_ slapped Barry. She was not hired to beat Barry, to hate Barry. She was hired to play an abusive mother to the character that Barry played.
(Unfortunate #1 for Barry: that scene had to be shot over and over. Unfortunate #2: His scenes were cut when they realized that he had different eye color that the actor hired to play his older self.)
So basically, porno stars are just really good method actors. :D:D:D
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### Author:  [@Fiver](https://boards.straightdope.com/u/Fiver)
#### Post date: [January 8, 2001, 2:13pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/15 "2001-01-08T14:13:36Z")
**Badtz Maru** :
> [@](#):
>
> In Hawaii, it’s not illegal for an adult to have sex with a 14 year old girl. I bet if you taped it you couldn’t sell it legally in the U.S., though.
Hawaii is part of the U.S.
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### Author:  [@Zebra](https://boards.straightdope.com/u/Zebra)
#### Post date: [January 8, 2001, 2:56pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/16 "2001-01-08T14:56:12Z")
The Color Purple has underage girls being raped.
I have never read the book so I don’t know how it is depicted there.
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### Author:  [@cuauhtemoc](https://boards.straightdope.com/u/cuauhtemoc)
#### Post date: [January 8, 2001, 3:03pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/17 "2001-01-08T15:03:59Z")
I commend the sober tone of this discussion. So many people are so emotional about this issue it’s hard to have any discussion that relates to pedophiles other than “Let’s burn 'em all at the stake!” and other such rhetoric.
Child abuse is obviously a very serious crime, and to the extent that child porn contributes to that crime, it should be illegal. But the way we villify people with inappropriate sexual feelings toward the young may just make the situation worse. A person who finds that he or she has these feelings may be less likely to seek help if society treats them as a criminal rather than as a person with a medical or psychological problem. Pedophilia not illegal any more than any other disease is. It’s child abuse that’s illegal.
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### Author:  [@puddleglum](https://boards.straightdope.com/u/puddleglum)
#### Post date: [January 8, 2001, 3:10pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/18 "2001-01-08T15:10:57Z")
IANAL, but there was a case near me recently concerning porn and obscenity laws. A late night video store was prosecuted for selling vidoetapes. In order to prove that selling the tapes was illegal they had to prove that the tapes violated community standards. They brought together a panel of citizens which viewed the tapes which were then declared obscene and the store paid a fine for each of the videos. I think that depending on the community you live in different things would violate community standards, but I can not conceive of a community that child porn would not.
I think that mainstream movies such as Pretty Baby can show things like Brooke naked because they have artistic merit and are designed purely to titillate. Which is or was the definition of obscenity.
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### Author:  [@Cartooniverse](https://boards.straightdope.com/u/Cartooniverse)
#### Post date: [January 8, 2001, 3:19pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/19 "2001-01-08T15:19:33Z")
> [@](#):
>
> \*Originally posted by Zebra \*
> \*\*The Color Purple has underage girls being raped.
>
> I have never read the book so I don’t know how it is depicted there. \*\*
I worked with the actor who was the Daddy in that film. A bazillion years ago, when I was a Production Assistant ( gofer), I drove him home. He told me about having recently been down south, working with Spielberg on the movie. The footage seen is a fraction of what was shot. Still, great care was taken during the shooting of the scenes. He said it was an awful thing to go through at any rate, as clinical as filmmaking often becomes. I wanna say Leonard Jackson was his name, but I don’t own a copy of the movie, and am not sure. Since then, I’ve shot sex scenes but never a sexual assault scene. I dread the day.
As for the question I’m quoting- it’s the core difference between an “R” and an “NC-17” rating. The scene depicts a rape. The sexual act is not show in graphic detail. ( I have to take a second here, and say that clicking on this thread was scary. It’s a confirmation of the intellectual rigor of our community here, that this kind of discussion can even take place without it deteriorating into something awful…). So, the act took place in the film but was NOT filmed, and the young actress was not indeed raped. It was a dramatization thereof, and so I’d WAG that it cannot construe child pornography at all. Of course, that distinction makes it no less heinous, but in terms of this thread, I’d think it’s not porn because nothing was shown.
As far as the posts talking about what is suggested, and what is shown with underage minors, I’ll stand by the law in word and intent here. While it’s completely true that just because your body turns the age of 16 ( I grew up in Pennsylvania, at the time I was becoming a wee swain, the age of legal consent was 16) doesn’t mean that you are emotionally prepared for the “act d’amour”. That’s not the point- one state decides 14- HAWAII?? Oye…- another state keeps 17 or 18 as an age of consent. One assumes that the lawmakers were trying to strike that balance between religious/historical precedent( Jews marrying off sons at age of 13 to 14 year old girls ) and other moral pressures and precedents.
I’m not condoning pedophilia at all, I’m simply aware of the slippery slope involved in younger aged people having sex. My neice is 20 now, but I remember her at 13, 14, 15-etc. She was already becoming active- was she being raped? Not at all, as far as she’s ever told me. She did things with guys, out of lust, love, etc- but she was consensual. So, defining child porn has always been, to me, a knee-jerk safetly thing. Defining age of consent is a more complex issue. At 14, my neice was consenting to whatever she was doing. At the age of 15, some other girl might not be.
I must say, I totally disagree with the poster who said that viewing child porn might take the edge off of a pedophile’s desire for sex with a minor. WAG here, but it’s a mental health issue. One doesn’t cure mental problems with videotapes- “A Clockwork Orange” notwithstanding. I mean, I view more pedestrian adult porn. Whether I go months or days between seeing porn, is almost irrelevant as to whether or not I’ve an active sex drive.
Two cents deposited. Moving along. 😃
Cartooniverse
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### Author:  [@handy](https://boards.straightdope.com/u/handy)
#### Post date: [January 8, 2001, 4:48pm UTC](https://boards.straightdope.com/t/why-is-child-pornography-illegal/48764/20 "2001-01-08T16:48:23Z")
" but she was consensual"
Doesn’t matter, the law doesn’t care if she consented or not if she is underage.
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