Is This Child Pornography?

Science, technology, and life.
Dec. 16 2008 8:00 AM

Is This Child Pornography?

I'm now going to depict an adult and a minor having sex. The adult is represented by the character on the left. The minor is represented by the character on the right. Here is my depiction:

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William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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Have I just committed a crime punishable by 10 years in jail?

Under a ruling issued last week in Australia, it's quite possible that I have. The ruling, issued by the Supreme Court of New South Wales, affirms that a cartoon can be prosecuted as child pornography. Here's the background of the case:

[T]he plaintiff was convicted ... of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (the Act) and using his computer to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (the Code). The alleged pornography comprised a series of cartoons depicting figures modelled on members of the television animated series "The Simpsons". Sexual acts are depicted as being performed, in particular, by the "children" of the family. The male figures have genitalia which is evidently human, as do the mother and the girl.

The Australian laws in question define child pornography as depictions of a "person" or depictions of "a representation of a person." A related memorandum says such definitions "are intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation." But even without the memorandum, the court says child pornography laws are in part "calculated to deter production of other material—including cartoons—that ... can fuel demand for material that does involve the abuse of children." Accordingly, "The depictions and representations of persons to which the definition refers include a drawing (or, for that matter, a model or sculpture) and, hence a cartoon, of a fictional character."

Does it matter that we're talking about the silly-looking Simpsons? No, says the court: "Even a substantial departure from realism will not necessarily mean that the depiction is not that of a person in this sense." The court upholds the initial ruling that the characters "were indeed depictions of persons" under the law. The convictions stand.

You have got to be kidding me.

Look: If you molest my kid, I'll see that you burn in hell. If you take a picture of my kid and Photoshop it so it looks like a sex act with you, I'll use any law I can find to put you away. If you make a sicko cartoon and digitally alter it so it looks like my kid, I'll throw the book at you. But if what you've made doesn't look like anyone's kid—if it's just a revolting mockery of the Simpsons—I'm supposed to convict you of child pornography? Really?

What's happening to child pornography is what's happening on the Internet and in software generally: Technology is blurring boundaries between action and thought, public and private, real and fake. On this point, the Australian court quotes the Supreme Court of Canada : "With the quality of contemporary technology, it can be very difficult to distinguish a 'real' person from a computer creation or composite." This gray area unnerves us, so we prosecute it. Two years ago, then-Rep. Mark Foley, R-Fla., was forced out of Congress for soliciting teenage boys online , though there's no evidence he ever touched a minor. This year, the U.S. Supreme Court upheld a ban on sexual images of children even if they're computer-generated or nonexistent . Apparently, more people are now arrested for using the Internet to solicit cops posing as kids than for using it to initiate relationships with real kids.

I understand why we do this: We're afraid that if we don't prosecute cyber-perverts, they'll move on to the real thing. But the danger runs both ways. How far will we extend felony prosecution into the realm of the private, the fake, and the abstract? If the Simpsons count as child pornography, what's next?

Actually, the Australian court has answered that question. Under the relevant child pornography laws, says the court, "a stick figure ... might well depict a representation of a person. No bright line of inclusion or exclusion can be sensibly described."

Well, then, come and get me. If there's no boundary between real and fake, between people and "depictions of representations," then prosecute me for my stick figures. Or admit it's ridiculous—and an insult to the real thing.