Re: VA judges find drawn CP illegal under PROTECT act

Just to clear up a confusion here, US v. Whorley upheld the criminalization of possession of drawn images NOT under the child pornography law (18 U.S.C. 2252), but under the obscenity laws. (This is why the Supreme Court's declaration last year that virtual cp cannot be criminalized as cp is somewhat a pyrrhic victory.)

These images are the subject of 18 U.S.C. 1466A, a modified obscenity section entitled "Obscene visual representations of the sexual abuse of children," the term sexual abuse being used quite broadly, not to mention ridiculously. In short it criminalizes acts regarding images in two categories:

1. production, distribution, receipt or possession-with-intent-to-distribute (I inserted the hyphens so readers will be sure to note that receipt doesn't need to be with intent to distribute) of visual depictions (drawing, cartoon, sculpture, painting) "depict[ing] a minor engaging in sexually explicit conduct" AND is "obscene" under the traditional Miller test.

"Sexually explicit conduct" here gets its definition from 18 U.S.C. 2252, the child pornography statute! It contains this laundry list:

- sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal;
- bestiality
- masturbation
- sadistic or masochistic abuse
- lascivious exhibition of the genitals or pubic area of any
person. This definition is governed by decisions in U.S. v.
Dost and U.S. v. Knox. Drawn images of girls exposing their
knickers can thus be illegal depending upon the content, the
defendant, the judge and the jury. The law is fully intended
to keep people guessing.

MOREOVER, if the image is highly realistic, the definition expands to include even the SIMULATION of the above list of acts, although not simulated intercourse (the first category in the list). (The reason for this is not entirely clear. Someone obviously thought it was logic - seems to be the kind of logic that amused Lewis Carroll.)

The Miller test requires that the image in question be determined (a) to appeal to prurient interest, (b) to violate contemporary community standards and (c) to lack serious artistic, scientific or political value. Arguing "serious" artistic value is not child's play: it requires bringing into court credentialed people - critics, credible artists or professors - willing to defend the work and make credible arguments. No easy task.

2. Images as described above which depict "an image that is, or APPEARS TO BE, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse" (including all forms as listed above), and
lacks serious literary, artistic, political, or scientific value. Here Congress has dispensed with two prongs of the Miller test (proof of violation of contemporary community standards and prurient interest). It is likely that this section could be found unconstitutional in the right case and context. US v. Whorley does not analyze it. On the other hand, this section could also be upheld and then read expansively, covering even obvious fictions, such as certain 3D "doll" jpgs that bear the likeness (or claim to anyway)of Natalie Portman ca. Leon. (A very bad likeness, but there you go.)

Just to put the cherry on the cake, the penalties (and enhancements under the U.S. Sentencing Guidelines) for violations of this section 1466A are exactly the SAME as if the image showed real children being raped.