Law in the Internet Society
Virginia Man Gets 20 Years for Anime Child Porn --

-- RodrigoFuentes - 04 Sep 2008

Thank you, Rodrigo. Please note also that "[t]he jury also convicted Whorley ... of sending and receiving 20 obscene E-mails which graphically described, among other things, parents sexually molesting their own children." Someone has been sent to jail for sending and receiving text describing imagined events.

I still think, after all the wonderful work that has followed it, that The Bluest Eye is Toni Morrison's most perfect novel (which, as it happens, my father edited). And on the theory of this prosecution, she could have been sent to jail for writing it.

-- EbenMoglen - 05 Sep 2008

Last month, the UK passed the Criminal Justice and Immigration Act, which, among other things, makes it a criminal violation to possess extreme photographic images. These images don't have to involve children at all; they merely have to depict an image produced solely for the purpose of sexual arousal that someone believes "is grossly offensive, disgusting or otherwise of an obscene character," and falls within section 7 (below).

(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following— (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.

-- JoshS - 05 Sep 2008

Supporters of the criminalization of child pornography and violent pornography often argue that images and stories depicting such activities, even when entirely fictional, can induce predisposed individuals to molest children or commit violent sexual crimes. Like the argument that violent movies and violent video games can promote anti-social behavior, the catalyst theory of child pornography has some intuitive appeal.

However, the empirical research examining the link between pornography and abuse is not exactly conclusive. Even assuming some positive correlation exists between the possession of simulated violent pornography and actual sexual violence, what laws like the Criminal Justice and Immigration Act set out to do is incarcerate people for undesirable activities they have not yet undertaken, but could undertake in the future. Such laws can't be justified on any retributive theory of punishment. The future harm they seek to prevent, while potentially horrendous, will always be speculative. There's nothing speculative about the havoc incarceration wrecks on the lives of individuals who possess simulated violent pornography, or on the lives of their families.

Convictions on the basis of future crimes have no place in a justice system that pays more than lip service to the notions of free will and personal responsibility.

-- AndreiVoinigescu - 06 Sep 2008

While I too would prefer not to jail individuals for mere possession of extreme or child pornography, I can’t accept your rationale. First, there are other theories of punishment other than retribution. An advocate of such regulations might argue that they serve a utilitarian purpose, such as being a general deterrence to those who do commit violent crimes or crimes against children. It’s up to you whether you think that incarcerating one person for a lesser crime to deter another from committing a greater one is a convincing rationale. However, to say that there is no plausible rationale seems inaccurate.

Second, people are convicted for future crimes all the time (e.g. incomplete act attempt). Those prosecutions turn on whether an actor’s actions constitute enough of a substantial step to corroborate criminal purpose, but the actor has not actually committed the criminalized act. Would we be more comfortable with prosecutions for attempted acts of child molestation, where a jury would determine if the defendant’s possession of child pornography indicated her intent to molest children? What if conviction for attempted child molestation had the same jail time as actual child molestation? And what if that conviction was simply based on a puritanical jury’s views of child pornography?

Not only do we convict people for future crimes, we convict people who have attempted to commit crimes and failed (e.g. completed act attempt).

For me, the issue is not the reasoning behind the laws, but that law makers think that it is appropriate to be peering into what I do inside my home at all. Whether it is pornography or drugs or what have you, I would like to maintain my own little fiefdom in which I can do what I want without fear of prosecution.

Additionally, isn’t the categorization of a photograph contextual? Is a photograph of a half naked boy with a cigarette in his mouth child pornography? What if it is later revealed to be taken in Afghanistan by a war photographer? What if it was taken from the war photographer’s website and reproduced on a pornographic website?

-- JoshS - 07 Sep 2008

Assuming we agree that the actual harm is not the pornography itself but rather the actions viewing it might elicit, I think supporting a law like the Criminal Justice and Immigration Act on utilitarian grounds is an uphill battle. If these laws reduce the availability of violent pornography, then, those who use the pornography as a substitute for engaging in the abusive behavior might well be driven to acts of violence or child molestation.

Unlike blanket prosecutions for possessing child pornography, a prosecution for attempted acts of molestation based on possessing child porn rightly focuses attention on the accused as an individual rather than people who possess child pornography as a group. Child pornography and violent pornography likely has different effects on different people. Someone accused of attempted molestation can pursue a defense that the pornography was used for cathartic purposes. Making possession itself a crime eliminates this defense, consequently reducing the accuracy of the prediction about that individual's likelihood to molest in the future.

As for the privacy argument you bring up, Josh, I would constrain it in two ways: First, someone's sovereignty over his home clearly can't be absolute. Fiefdom or not, I believe we can all agree that people should be prosecuted for some crimes--murder and fraud are easy examples--even if they are largely carried out behind closed doors. Secondly, and related to the first point, many actions performed within one's home have direct effects outside that physical space. Physical barriers like the walls of your home or even your own computer have little value when dealing with online activities. The government is forced to pay more attention to what you do in places that used to be considered private. At the same time, the surveillance is, at least in some sense, less intrusive in nature; physical searches are replaced by electronic monitoring. One can be both more closely watched than before and yet less inconvenienced by it--depending on how the information that is gathered is used.

-- AndreiVoinigescu - 07 Sep 2008

  • Our concern here won't be whether people who believe taboos think they are logically supported--of course they do. Just as the common sense of those who believe in the taboo against child pornography tells them it causes child molestation or other harm, those who believe in the taboo against eating raw seal blubber during the menstrual period know, as a matter of common sense unquestionable by anyone who knows the way the world works, that it offends the spirits, and thus causes seal to be harder to catch. In a culture where it is shameful to be overheard making the noises of defecation, it is just common sense that the toilets should play music. Our concern is with whether taboos that can be violated by a bitstream can be meaningfully enforced in a global network which directly links persons subject to the taboo with those who are outside its range.



Webs Webs

r8 - 08 Sep 2008 - 15:27:54 - JoshS
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