Virtual Child Porn and Child Exploitation
Last month, in a widely criticized decision, the United States Supreme Court upheld criminal penalties for promoting virtual child pornography. The 7-2 decision in United States v. Williams, however, rightfully empowers law enforcement in the battle against the worldwide criminal networks where child pornography is freely produced, solicited and offered.
What most people do not realize is that child pornography is per se illegal. Although some child pornography might fall under the legal definition of obscenity, it does not have to be analyzed under traditional First Amendment guidelines.
The critical underpinning of contemporary child pornography jurisprudence is that child pornography is illegal due to the adverse effects on the children used in the creation of the child pornography. It is not the mere viewing of the images that causes harm, but the production, distribution and possession of the images and videos.
The Court wisely realized that the very nature of the child pornography criminal enterprise—where demand for ever new and more graphic images directly drives the sexual abuse of children—is the real crime.
The crime of child pornography has nothing to do with speech, protected or otherwise. The crime is the relentless clamor for images in which children’s bodies are the currency. Surprisingly, most child porn is not sold commercially but traded for new material. The most hard core pictures are held back with the expectation that you’ve got to make some of your own to get the good stuff. Some children are sexually abused just to create child pornography.
In fact the very term child “pornography” is a misnomer and in my opinion is an insult to pornography (no matter how you view that term and what it depicts). Again, the crime here is not the mere viewing of the images or even thinking about unspeakable acts with children. Juries view child pornography all the time. So do experts for criminal defendants and prosecutors. None of them have committed a crime.
The crime of child pornography gets committed when demand for images (resulting in possession) leads directly or indirectly to the criminal sexual abuse of children who are often abused solely to produce child pornography (production). “Child pornography” then is not merely about a visual image, but is a unbroken chain of acts (distribution) which originate in or lead to the sexual abuse of children.
This is why virtual child pornography is legal and, in my opinion, should remain legal. The focus must remain on the very real, if largely unidentified, victims of this horrible criminal enterprise.
Why then was the Court correct in banning the promotion of virtual child pornography while allowing the production, distribution and possession of virtual child porn to remain legal? The simple answer is that the pandering and solicitation of ANY child pornography, when seen as an essential aspect of the entire criminal enterprise which leads to the sexual exploitation of children, must remain illegal.
A bank robber is not innocent just because the gun was plastic. Whether the gun is real or not is irrelevant because the crime of bank robbery is not the mere brandishing of what appears to be a gun, but it is demanding and receiving money under threat.
Similarly, the crime of child pornography is not merely offering images of sexually abused children, but it is the entire trade in such images which itself is firmly rooted in the wholesale exploitation of children. The Court correctly realized that this trade thrives in a milieu in which the offer or demand for images, virtual or not, is an essential and direct contributor to the “real” crime which is child pornography.
The Court clearly held that:
“an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means ‘a protected category of expression [will] inevitably be suppressed.’ Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.”
The Court struck a careful balance which fully appreciates the nature and scope of the crime which is child pornography.
Coming up next, an analysis of Attorney General Andrew Cuomo’s recent child porn initiatives and why they are largely irrelevant in the fight against child pornography and child sexual exploitation.
MORE ON THIS TOPIC from NPR’s On The Media on 12-26-2008: Porn’s Fine Lines “If no children were harmed in the making, is it still kiddie porn? Cartoon defender Charles Brownstein says it’s a danger to artistic freedom to criminalize lines on paper, but child-safety advocate Mary Leary says allowing explicit drawings of children presents a threat to the safety of real-life kids.”