Regarding the Legality of Depictions of Sex For those Under 18

[megrisvernin]

This continues from here.

http://questionablequesting.com/index.php?topic=551.50

I'll repost my earlier comments..

This reminds me a lot of an older Court Case, the Supreme Court ruling on 2002 of Child Pornography Prevention Act of 1996.

Some background on the Act

In 1996, Congress changed course in its efforts to combat child pornography
when it passed a law that targeted so-called virtual child pornography — or
computer-generated images of children engaging in explicit sexual conduct. In
the past, laws had focused on the use of actual children in making, producing
and distributing child pornography.
But Congress adopted the Child Pornography Prevention Act of 1996 — CPPA — to
address concerns about advances in computer technology that make it more
difficult for prosecutors to determine whether certain images are of an actual
child or simply realistic images of fictional children. Congress heard testimony
regarding "morphing" — where pornographers would download photographs of
children from magazines and then transform them into sexual pictures.
CPPA defined child pornography as:
"Any visual depiction, including any photography, film, video,
picture or computer-generated image or picture … of sexually explicit conduct,
where —
(A) the production of such visual depiction is, or, appears to be, of a
minor engaging in sexually explicit conduct; (B) such visual depiction is, or,
appears to be, of a minor engaging in sexually explicit conduct; (C) such visual
depiction has been created, adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct; or (D) such visual depiction is
advertised, promoted, presented, described, or distributed in such a manner that
conveys the impression that the material is or contains a visual depiction of a
minor engaged in sexually explicit conduct." — 18 U.S.C. Section
2256(8)
The Free Speech Coalition and others challenged the law in federal court in
1997. They challenged only the two subsections containing the "appears to
be" and "conveys the impression" clauses. The plaintiffs questioned those
provisions because they allow people to be punished even if no actual children
were involved in the creation, production or distribution of the material.
For instance, the law would theoretically punish producers of a movie that
had a youthful-looking adult movie actor playing a child in a sex scene.
Furthermore, the law would impose penalties on material that simply "conveyed
the impression" through advertising that the material contained a minor engaged
in sexually explicit conduct.

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The Supreme Court ruled it unconstitutional 6 to 3.

The Majority Opinion is here.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-795

The relevant comments they make are.

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea--that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. 18 U. S. C. §2256(1). This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. See §2243(a) (age of consent in the federal maritime and territorial jurisdiction is 16); U. S. National Survey of State Laws 384-388 (R. Leiter ed., 3d ed. 1999) (48 States permit 16-year-olds to marry with parental consent); W. Eskridge & N. Hunter, Sexuality, Gender, and the Law 1021-1022 (1997) (in 39 States and the District of Columbia, the age of consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes--teenage sexual activity and the sexual abuse of children--have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 ("She hath not seen the change of fourteen years"). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. E11. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See "American Beauty" Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. E1. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.

Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419 (1966) (plurality opinion) ("[T]he social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness"). Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U. S. 229, 231 (1972) (per curiam). For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.

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I support their ruling & I thought they worded it better than I've ever been able to.

Regarding USS_JOHN_PAUL_JONES's comments

Sorry, drawn CP is still CP and still illegal.

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In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003, by then president George W. Bush.[52] The law enacted 18 U.S.C. § 1466A, which criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is "obscene" or "depicts an image that is, or appears to be, of a minor engaging in...sexual intercourse..

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It's my understand this was overturned with United States vs Hilton(2004)

However, in light of Free Speech Coalition, another federal appeals court disagreed and granted unspecified post-conviction "relief" to defendant David Hilton, who was convicted under the virtual child porn prohibition. In United States v. Hilton (2004), the 1st Circuit said that, in light of the Free Speech Coalition decision, the onus was on the government to prove that images used to convict a defendant were images of actual children, not virtual child pornography.
"That the children in the images are real amounts to an element of the crime which the government must prove, the burden of which should not be displaced to the defendant as an affirmative defense," the appeals court panel wrote. (The panel withdrew its earlier opinion in Hilton that had required expert testimony to prove the children were real.)

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Source
www.firstamendmentcenter.org/virtual-child-pornography

 

[Malcolmo]

Sorry Megris, but without SeaDart there isn't likely to be much activity on this topic.

 

[megrisvernin]

Sorry Megris, but without SeaDart there isn't likely to be much activity on this topic.

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That's fine.

I just wanted to make a venue.
On this issue the U.S. Department of Justice has some specific comments.

Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law.

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http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html

So it's illegal to post photo video, or digitally create video of actual underage individuals. But they must be identifiable & "actual minors". So hentai would be legal in almost all cases. As would generic sketches that people make.

With United States v. Hilton (2004) the onus is on the government to prove images are of children. Provided the person doesn't present the item in question as child pornography(and by the above definition it isn't) then a fictional depiction like Romeo & Juliet, and a sketch of a generic teenager not drawn from anyone specifically that includes nudity are both legal in the United States.

 

[Carrnage]

reposting this.

Eh honestly The underageness of the characters (in stories on this site that have underagecharacters) tends to be an informed trait, the characters themselves are usually physically and emotionally mature enough to not actually be harmed by sex.

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[UrsaTempest]

Meh.