Legislators look to expand Alaska's child pornography law

CARTOON: Move to criminalize anime, however, worries some free speech advocates.

October 11, 2009 

A state prosecutor who handles child pornography cases wants sexually explicit drawings of children -- even computer-generated cartoons -- to be as illegal as photographs of actual abuse.

The idea is supported by the chair of the House Judiciary Committee and others in the State Legislature.

Laws criminalizing possession of sexually explicit photographs of children have long been an exception to the First Amendment, which protects Americans' right to think and read whatever they want. Supporters of the existing laws successfully argued that children are hurt in order to produce the photographs.

That argument does not apply to drawings, particularly not to computer-generated cartoons, and the move to extend the law to include them threatens to pit free speech advocates against child protection advocates.

"The fight needs to happen," said Aaron Sperbeck, the crimes-against-children prosecutor in the Anchorage District Attorney's Office who is behind the idea. "(The images) are almost as graphic and disturbing as real children. We need to get the conversation going."

Traffic in online child pornography has exploded in recent years. In Alaska, a task force arrests about two dozen people a year on possession charges, although investigators say they are only reaching a small fraction of the state's offenders because of limited resources. Police try to target the worst of the worst, said Sgt. Ron Tidler, head of the Cyber Crimes Unit at the Anchorage Police Department. Turning up more and more in the illegal collections are the cartoon, or anime, images.

House Judiciary chair Rep. Jay Ramras, R-Fairbanks, said he would support drafting a bill to add cartoons and computer-generated images to the list of child porn photos and videos already banned by Alaska law. "I'm awestruck that it even exists," he said. He said the prosecutor "has got a good idea and I'm going to support him."

But free speech advocates disagree. Joan Bertin, executive director of the National Coalition Against Censorship in New York, said an American has the right to privately possess such materials; no matter how disgusting most people find them, they are not hurting anyone and did not hurt anyone in their creation.

"That represents someone's fantasy life," she said. "When you start regulating that kind of matter, you are getting into thought control and that is very dangerous."

Even if fantasies are obscene to others, a person should have the right to possess them, she said.

U.S. law says all child pornography is banned and not protected by the First Amendment. Federal law defines "child pornography" as "any visual depiction" of "sexually explicit conduct" involving a minor, and defines "sexually explicit conduct" to include not only various sex acts but also the "lascivious exhibition of the genitals or pubic area of any person." It includes pictures of minors who have by definition been harmed in making the images or images of real children that have been "morphed" to make it appear that the children are engaged in sexual activity.

Federal law defines "obscene" very loosely and subjectively, leaving decisions on obscenity largely to the states. But generally the obscenity bar is very high -- meaning the image or video or whatever has to be obviously offensive to most people.

The law says you have a constitutional right to possess obscene material in the privacy of your home. However, there is no constitutional right to buy, trade or provide obscene material to someone else, even for private use and even if no money is involved.

In 2002, the U.S. Supreme Court decided child porn produced without involvement of a real child -- including cartoons and anime images -- is legal.

In response to that, Congress enacted an obscenity law that specifically prohibits any "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct."

It also prohibits "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 lacks serious literary, artistic, political, or scientific value.

The fight over this broad definition of obscenity, and whether it violates the First Amendment, began immediately.

This past June the Fourth Circuit U.S. Court of Appeals in Virginia upheld the conviction of a man who received on a computer obscene Japanese anime cartoons depicting minors in sexually explicit conduct.

In his dissenting opinion in the U.S. v. Whorley case, Circuit Judge Roger Gregory wrote that Whorley should take his case to the U.S. Supreme Court. "I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless 'crime' of privately communicating his personal fantasies to other consenting adults."

Gregory wrote that cartoons depicting minors in sexually explicit conduct are not illegal unless they depict real life minors.

Law enforcement officials said they are not taking aim at children in bathtubs or Lolitas with their shirts off. "These are not funny little cartoons," Sperbeck said. The images are graphic and disturbing, like men raping toddlers, he said.

Ban proponents also point to studies that say two-thirds of those who possess child pornography have actually committed the crime of sexual abuse. The two are very much linked, Sperbeck said.

Sen. Bill Wielechowski, D-Anchorage, agrees. Wielechowski said he doesn't see a conflict with the First Amendment. "What possible good could come out of having child pornography? I don't see that the founders of our country had any intention of protecting people who prey on our children. It would be an additional tool to put people away who are possibly abusing children."

That's the kind of argument that worries civil libertarians -- punishing people for thinking about doing something bad.

The link between those who look at real-life child pornography and those who sexually abuse children is debated. A Federal Bureau of Prisons study often cited says as much as 85 percent of those who possess child porn have also abused at least one child. Other studies, though, are more conservative and estimate only 20 to 30 percent.

But cartoons? Alaska Assistant U.S. Attorney Audrey Renschen said they can be harmful because predators use them to groom children for abuse. By showing them the images, it teaches children that rape or adults having sex with children is okay, she said.

"When you talk about anime, even though a real child wasn't used, it still sexualizes the child. And cartoons are naturally conducive to attracting a child," she said.

In her five years on the job prosecuting child pornography cases, Renchen said she has not charged anyone with possessing anime images.

Find Megan Holland online at adn.com/contact/mholland or call 257-4343.

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