Child Pornography and the Law
There is a fair amount of misinformation among pedophiles regarding the legality of various types of child pornography, particularly as relates to virtual pornography and erotic fiction. Our understanding of the relevant laws in the United States is set forth below. We include this discussion so that people will not inadvertently violate the law.
One caveat. We are not attorneys or experts on the laws relating to child pornography. You should not consider this information to be legal advice. If you need legal advice, you need to find a qualified attorney.
Most pedophiles understand that possession and distribution of child pornography is illegal throughout the United States. This includes possessing or distributing hard copies, as well as downloading such material onto a computer. Even viewing child pornography by accessing a web site can be illegal if the pornography is accessed knowingly.
Unfortunately, it is not always clear whether particular images will be considered pornographic under the law. While material depicting children engaged in sexually explicit conduct is obviously illegal, there is a fair amount of uncertainty at the margins. Sometimes even pictures of clothed or partially clothed children can be considered pornographic, if the children are portrayed in a sexually provocative way. Given ambiguity in the law regarding exactly what is required for material to be considered pornographic, it is safest to avoid anything that involves nudity or erotic posing.
Virtual pornography generally refers to pornography that does not involve real children. Examples include drawings, cartoons, sculptures, paintings or computer generated images. Many pedophiles believe that virtual pornography is legal in the United States. They are mistaken.
In 2002, the Supreme Court struck down aspects of the Child Pornography Prevention Act of 1996 as applied to virtual pornography. This did not make virtual pornography legal. It was simply a matter of the Court disapproving of certain aspects of the law. Congress fixed the problem in 2003, and it is now clear that virtual pornography is illegal if the material is considered obscene under the law.
There have been at least two recent cases that we are aware of involving conviction for receiving virtual pornography. In 2008, a Virginia man, David Morley, was convicted for receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct. Mr. Morley was also convicted for receiving 14 digital photos of nude children. The photographs did not involve sexual conduct in the traditional sense of the word or touching of genitals but were considered lascivious by the authorities. He was also convicted of sending or receiving 20 obscene e-mails. Mr. Morley was sentenced to twenty years. He had had a previous conviction for pornography related offenses and this undoubtedly weighed heavily in the sentencing.
In 2010, an Iowa man, Chris Handley, was sentenced to six months in a halfway house for possessing seven comic books that depicted violent sexual abuse of children. Mr. Handley was not a pedophile. He was a prolific collector of Japanese Anime comics. Of the thousands of books and magazines found by the police at Mr. Handley's home, only about twenty had questionable content and ultimately only seven Lolicon resulted in charges. Mr. Handley thought the comics were legal. He faced several years in federal prison if his case went to trial, so he took a plea bargain.
Erotic stories involving children could be found illegal under obscenity statutes in the US. We are not aware of anyone who has been charged for simply downloading or reading such stories, but that is no guarantee of safety in the future. In general, the government is reluctant to prosecute even authors and distributors for mere textual material due to the chilling effect on free speech -- though two we know of have been prosecuted. Erotic fiction involving children is illegal in Australia and Canada.
What should the law be?
Pornographic material using actual children should be illegal. Children can be hurt, either emotionally or physically, and this cannot be allowed.
Virtual pornography and erotic fiction are different in that no children can be harmed directly since no children are involved in its production. With regard to indirect effects, there are arguments on both sides. On the one hand, it can be argued that viewing virtual pornography or erotic fiction breaks down barriers and therefore increases the risk of sexual abuse. On the other hand, it can be argued that such material provides pedophiles with a harmless way of gaining sexual relief and that this actually reduces the risk of sexual abuse.
We believe that this is an empirical question that can only be answered based on facts. Some scientists believe that virtual pornography and erotic fiction will not likely lead to increased incidents of child sexual abuse. In Denmark and Japan, child pornography was legal for a period of time and there were fewer incidents of child sexual abuse. Other scientists believe that the data is not conclusive as the reduction in child sexual abuse may have been due to other factors.
If such material does not increase the risk to children, we think it should be legal, partly to provide pedophiles with a legal method of gaining sexual relief.