Not that I have any, I swear, but is CGI child porn legal?

December 10, 2004 8:15 AM

Not that I have any, I swear, but is CGI child porn legal?
posted by anonymous to law & government (29 comments total)

This doesn't necessarily answers your question, but a lot of anime that I have seen has a disclaimer at the beginning that "all characters depicted in sexual situations are 18 years of age or older" or something to that effect. It probably depends on what county you're in.
posted by Who_Am_I at 8:21 AM on December 10, 2004

In 2002 the SCOTUS "struck down a congressional ban on virtual child pornography":

The law barred sexually explicit material that "appear(s) to be a minor" or that is advertised in a way that "conveys the impression" that a minor was involved in its creation.

However there was a section of the law not struck down "that banned the use of identifiable children in computer-altered sexual images."

So as long as its 100% child-free it'd probably legal, although in my opinion morally repugnant.

And I should add that I am not a lawyer, this is not legal advice, and you should probably talk to a lawyer before going with a 100 miles of CGI child pornography.
posted by revgeorge at 8:22 AM on December 10, 2004

Not in the UK. Depends on jurisdiction, I guess.
posted by Leon at 8:30 AM on December 10, 2004

This doesn't necessarily answers your question, but a lot of anime that I have seen has a disclaimer at the beginning that "all characters depicted in sexual situations are 18 years of age or older" or something to that effect.

Oh that Central Park Media disclaimer is classic. I especially love how the part about how all the young people we see in school are actually going to a special pre-college for 18 year olds in Japan.

One where everybody still wears their high school uniforms.
posted by PinkStainlessTail at 8:38 AM on December 10, 2004

That's a fascinating question.

We're really sensitive to child porn and child sex in the US because it's such a horrible thing that almost certainly destroys people's lives like almost nothing else. But there is always danger if you go too far, that a "thoughtcrime" becomes a possibility.

What's fascinating is that as CG advances, we're already climbing out of the uncanny valley and getting close to figures that looks almost completely real. Given those advances, it's only a matter of time before someone can produce CG porn of the illegal variety (if it was real, and whatever counts as illegal), and one day a court will have to decide when CG work is too realistic and becomes real stuff.

And I'm not just blowing smoke here, anyone will do anything for a buck and once someone figures out that people will pay $X for something that really looks like a movie of something you can't film, someone will create that film in CG. I bet it's only 5 years off, tops, before we see some really disturbing CG that makes us question exactly what is illegal.
posted by mathowie at 8:54 AM on December 10, 2004

I'm surprised to read that CGI child porn is illegal in the UK. Isn't the idea that CGI child porn might be illegal a bit disturbing?

By that same token, shouldn't depictions of murders or rapes in movies be illegal? After all, they're fictional - not real - but represent something that we find (as revgeorge says) "morally repugnant".
posted by skylar at 9:08 AM on December 10, 2004

Could someone reveal what "CGI" stands for, for those in the dark?
posted by ThePinkSuperhero at 9:12 AM on December 10, 2004 [1 favorite has favorites]

Not in Canada, either. What an odd question.
posted by shepd at 9:14 AM on December 10, 2004

Computer Generated Image/Imagery
posted by PinkStainlessTail at 9:19 AM on December 10, 2004

My inclination is to guess that it will be, and not necessarily on ethically bad grounds. There are a number of treatments and strategies that pedophiles are given by psychologists right now. They are all - all - intended to direct thought away from children, I can't think of anyone that encourages pedophiles to fantasize about fictional children. The implication being that if someone responds to thoughts about children by looking at drawings/whatever and masturbating, eventually a certain percentage are going to take that next step.
posted by kavasa at 9:31 AM on December 10, 2004

Why is it an odd question? Like mathowie, I find it a fascinating one (and as a free speech absolutist, I think the answer should be "yes").
posted by languagehat at 9:33 AM on December 10, 2004

Just for more info, Eugene Volokh on the matter and Owen Kerr on a similar topic. Ethically I think it moves into the "more wrong than right" side, but as a free speech supporter (who really isn't one) I think this falls squarely into protected speech. But who knows - we have all sorts of classifications of speech which have a varied amount of protection. I think this cuts across standard Dem/Rep lines because I could see Rehnquist or Scalia upholding the right, even if he thinks it is morally reprehensible.
posted by plemeljr at 9:41 AM on December 10, 2004

... I could see Rehnquist or Scalia upholding the right ...

Interestingly, the First Amendment cases not only cut across typical Republican-Democrat lines, they also cut across the usual conservative-liberal coalitions on the court. On the conservative side, Justice Thomas tends to be very speech-protective, while Justice Scalia and especially Justice Rehnquist are less so. On the liberal side, Justice Kennedy tends to be the most speech-protective, while Justice Breyer tends to be the least. For an extremely detailed examination of the Justices' voting patterns in free speech cases, see "How the Justices Voted in Free Speech Cases,
1994–2002," by Eugene Volokh.
posted by monju_bosatsu at 10:10 AM on December 10, 2004

It's not legal in New Zealand. It is forbidden to depict certain things and whether the depiction involves real people is irrelevant.

Specifically our legislation forbids things that are injurious to the public good. Thus its the subject matter, not the harm the cause in creating the work, which makes child porn illegal here.

S3 (2) (a)

3. Meaning of ``objectionable''---(1) For the purposes of this Act, a
publication is objectionable if it describes, depicts, expresses, or
otherwise deals with matters such as sex, horror, crime, cruelty, or
violence in such a manner that the availability of the publication is
likely to be injurious to the public good.

(2) A publication shall be deemed to be objectionable for the purposes
of this Act if the publication promotes or supports, or tends to promote
or support,---
(a) The exploitation of children, or young persons, or both, for
sexual purposes; ...
posted by i_am_joe's_spleen at 11:39 AM on December 10, 2004

In Canada I think it is actually ambiguous, hingeing on the questions of "Artistic Merit" and type of "dissemination" (so to speak).

For a simple backgrounder look at the Robin Sharpe and Eli Langer cases here.

The Supreme Court ruliong on Robin Sharpe is here, and Wikipedia entry is here. His case is about literary protrayals of child sex but I think many of the same legal principles could apply. Court documents on the Langer case here.
posted by Rumple at 12:24 PM on December 10, 2004

According to Industry Canada " The definition of child pornography is broad enough to include any computer simulated child pornography."

Case law in Canada still has to be tested with a nice clean case. There was that guy in BC who was prosecuted and fought it all the way but I think they tripped him up with something else.

On preview what Rumple wrote.
posted by Mitheral at 1:01 PM on December 10, 2004

$X for something that really looks like a movie of something you can't film, someone will create that film in CG.

we already have plenty of films like that that aren't in CG. anything involving a rape or murder, for instance. hell, anything that shows a simulated crime.

i think simulated anything should be legal, if potentially morally repugnant.
posted by taumeson at 1:36 PM on December 10, 2004

John Robin Sharpe (triple named in the Wiki, you know he's evil) is the guy I was thinking about. If he'd just had the writings he'd probably be free and clear. Canada needs someone who hasn't assaulted a 11 year old to sort this out.

Pulled off the net some place
"Everybody understands that people aren't really killed in his [Clint Eastwood's] movies. Some people think some Eastwood movies are too violent and refuse to see them. Others think they're inappropriate for young children. But nobody thinks that making them is, or ought to be, a crime."
--
You can't outlaw written or virtual child pornography unless you also outlaw the similar (completely imagined) portrayal of all other nasty things. Murder is worse; if you are going to ban imagined portrayals of nastiness, you have to start with murder, and ban child pornography only when you are ready to ban all portrayals of rape.
posted by Mitheral at 1:52 PM on December 10, 2004

i think simulated anything should be legal, if potentially morally repugnant.

Thankfully you're not in office. Simulated anything = thinking about anything = thoughtcrime.
posted by yerfatma at 2:24 PM on December 10, 2004

Mitheral, Canada's laws make it illegal to own pornographic images of persons *appearing* to be under the age of 18. Pornographers must be careful on this point, because hiring someone who is legally over 18 for a job may not be legal in Canada if they are not fully developed in every way.

I don't remember why I know that, but I just do. :-D

I am pretty sure it was Sharpe's drawings that got him busted. I do recall a book we were required to read in High School that included a sexual situation involving minors not being banned in Canada, so I do believe false written situations are not covered by law.

It is all up in the air, though, because the law is still in place yet the courts have been turning out some not-guilty verdicts because the charter of rights and freedoms appears to support the idea that a person's imagination can't be outlawed.

It's an odd question because it almost sounds like the poster wants to satisfy a worry that they are/are not going to be in trouble for enjoying a secret habit that doesn't include actual people.

I am certain that's not the reason, but it just feels odd. I guess I read too much into things.

For those wondering, this is Canada's law against such pornography:

163.1 (1) In this section, "child pornography" means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under
this Act.

The rest of it is just outlawing that media and outlining the punishments. A bit more interesting parts:

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

(6) Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

It is unlikely you would convince a judge that hentai has artistic merit. They're talking things like paintings on the sistine chapel, or peeing cherubs, not computer games that weirdoes whack off to. :-D
posted by shepd at 2:55 PM on December 10, 2004

i think simulated anything should be legal, if potentially morally repugnant.

Thankfully you're not in office. Simulated anything = thinking about anything = thoughtcrime.

Why "thankfully you're not in office"? Taumeson is saying it should be legal if it isn't real, and you seem to regard criminalizing simulations as being Orwellian, so it appears you two agree...
posted by Bugbread at 3:52 PM on December 10, 2004

By that same token, shouldn't depictions of murders or rapes in movies be illegal? After all, they're fictional - not real - but represent something that we find (as revgeorge says) "morally repugnant".

I agree. It's a complete double standard. I have no specific interest in watching virtual reality children getting it on, but legally, I have no problem with it. Virtual worlds are not real worlds. They have their own entire set of morals and ethics. Look at cartoons. There are routine episodes of child abuse, animal abuse, and torture, in even the less controversial series. If a clip of Bart and Lisa Simpsons getting jiggy with it is illegal in one jurisdiction, why isn't a bad guy getting killed in a cartoon also illegal?

One argument is that banning virtual child pornography is not to protect 'the virtual', but so that people in the real world don't get any fodder for thinking about doing it in real life. This argument is hogwash. If it were correct, then violence would have significantly shot up as computer games and TV became more violence.. instead, less people die of incidental violence these days than in any century previous!

South Park found a good way around these issues in one episode. They featured two aliens giving each other blowjobs and sticking their fingers in each others' butts, but just by calling the parts different names and putting them on different parts of their bodies, it was okay to show on air.

So, if someone made a cartoon featuring a 10 year old alien which has something resembling a vagina attached to its head, which 50 year old aliens then poked their fingers into, is this child pornography? I think the line is impossible to draw.
posted by wackybrit at 5:26 PM on December 10, 2004

1. The crime involved in the making of kiddy porn is the abuse of the children.

2. CGI does not abuse children, therefore it should be legal.

3. However good CGI would make it difficult to tell if a real child was involved. Therefore, what? Possibly allowing only CGI that looks fake? Forcing manufacturers of such to prove domain? Having a government approval stamp?

Unfortunately, this would not go over well with the general public who don't want child molesters to have any sex at all, even if it just solitary sex over fake children.

I realize I have given you an opinion rather than a legal answer, but I think the legal answer above is the same (it should be legal as long as no real children are involved.).
posted by Secret Life of Gravy at 5:33 PM on December 10, 2004

The real issue here is the extent to which an environment depicting sexualized children causes someone to sexualize children.

Some pedophiles and NAMBLA members say that they're just born that way - they can't help it - and CGI porn provides them with a safe outlet. Others think that their condition is more the product of nurture than nature... if they'd stop thinking about children in sexual scenarios, then their compulsions would be lessened. This question has an empirical answer.

Of course, it's not even clear that we should be allowed to legislate thoughts people have that they don't act upon. If people fantasize about children in sexual scenarios, then to some extent, that's their right. But if it turns out that they find it virtually impossible to keep from acting on their compulsions, AND the presence of CGI child porn has a hand in creating those irresistable compulsions, then we might have a case for legislation.
posted by painquale at 6:09 PM on December 10, 2004

It's legal. I actually saw a computer scientist from Dartmouth named Hany Farid give a talk about this once last year; turns out that law enforcement has a big problem with it being legal because it's very hard for them to know whether any images they find are real child porn or CG child porn. Hence Farid's research into telling the difference between photgraphs and photorealistic CGI. Here's a paper directly about the issue: linky.
posted by jacobm at 9:01 PM on December 10, 2004

Secret Life of Gravy, your theory does actually relate to the legality of the situation. The US government has claimed that their interest is in making sure that children aren't abused. The legal question is how closely the stated interest and the actual law relate to one another.

Most posters here have been focusing on the idea that watching CGI kiddies will inspire watchers to hurt children, but mathowie pinpoints the other problem: at some point, CGI and real porn will become virtually indistinguishable. At that point, the pornographer will claim it's fake while hurting real children. That, I think, is the government's best argument for suppressing it.
posted by equipoise at 9:22 PM on December 10, 2004

At that point, the pornographer will claim it's fake while hurting real children.

Of course if it is computer generated the pornographer should be able to provide source material (meshes or scene files.)
posted by Tenuki at 10:24 PM on December 10, 2004

Well, I know very little about CGI...which I suspect is true for the government lawyers too. What if the pornographer started with real footage and then did a little bit of animating on top of it? That way, it would look a little fake and they would have some souce material, right?

Also, they want to be able to prosecute the guy who's using that porn, not just the manufacturer. Is there a way to figure out if it's fake from the end product?
posted by equipoise at 5:49 AM on December 11, 2004

Would an interactive game that allowed the protagonist to have their virtual way with a virtual child be legal? What if said way was had against said virtual child's virtual will? Contrast with bludgeoning hookers to death with a double-ended dildo in Grand Theft Auto.
posted by obiwanwasabi at 6:31 PM on December 12, 2004