South Florida Defense Attorney Asks: Are Explicit Cartoons Child Pornography?

December 10, 2008 by David S. Seltzer

Even though I’m a Florida criminal defense lawyer, a court ruling from Australia caught my eye this week because it addresses an issue that’s becoming very important in my Florida cyber crimes defense practice. Australia’s Supreme Court ruled on Monday that a man was properly convicted for possession of child pornography because he had sexually explicit images of cartoon children on his computer. In fact, these were images of characters from the television show The Simpsons (knockoffs, not official or authorized images), including the family’s three children.

As the New York Times reported, the case turned on the question of whether the cartoon characters could be considered people under the law. The defendant argued that they shouldn’t be considered people because they “plainly and deliberately” did not look like natural humans. Justice Michael Adams of the court agreed that the characters were not strict reproductions of people, but ruled that even images that are not strictly faithful to the human body may be considered persons under the law. Noting that owning these images would be a serious crime if they were photos, the justice said that the lower court was right to rule that fictional or imaginary characters qualify as people for purposes of the child pornography law.

If you think this couldn’t happen in freedom-loving America, I’m sorry to say that you’re not entirely right. As the NY Times link above mentions, an Iowa man is currently being prosecuted for possessing sexually explicit manga (Japanese comic books); the government does not allege that the images were produced using real children or that he owns any photos or videos. And the U.S. Supreme Court ruled this past May that defendants may be prosecuted for soliciting or offering child pornography even if the material is computer-generated, digitally altered from legal pornography or nonexistent. That is, merely offering or asking for this material is now a crime.

Fortunately, that court has also ruled that simple possession of material not produced using actual children remains legal. That may sound like a fine distinction, but it’s very important to my clients and to me, as a Miami cyber crimes attorney. Child pornography is not covered by free speech laws, the way adults-only pornography is, because children (and their parents) can’t legally consent to making it. That means that genuine child pornography is always produced by criminal activity. Drawings and computer-generated images that seem to be child pornography -- but aren’t -- may be disturbing or unpopular, but they don’t have this problem.