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Tulsa Law Review

Volume 55 Issue 2 Book Review

Winter 2020

Metamorphosis: Changing Oklahoma Law to Protect Children from Morphed

Caleb Beacham

Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr

Part of the Law Commons

Recommended Citation Caleb Beacham, Metamorphosis: Changing Oklahoma Law to Protect Children from Morphed , 55 Tulsa L. Rev. 311 (2020).

Available at: https://digitalcommons.law.utulsa.edu/tlr/vol55/iss2/24

This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. 42010-tul_55-2 Sheet No. 82 Side A 03/03/2020 13:59:43                          ...... 326 ...... 331 ...... 328 ...... 311 311 ...... 330 ...... State v. Zidel AND THE 317 ...... LAW PORNOGRPAHY ) 2/18/2020 ) 6:57 AM People v. Gerber OSIS: CHANGING OKLAHOMA LAW LAW OKLAHOMA CHANGING OSIS: ELETE Parker v. State D OT N O MORPH Pornography ...... Pornography 323 Pornography ...... Pornography 321 1. The Plain Meaning ...... 326 ...... 1. The Plain Meaning 327 ...... and Boundaries Intent The Legislative 2. 1. California: 2. Florida: Hampshire: 3. New A. Morphed Child Pornography Harms and Exploits Children ...... 332 ...... Children Exploits and Harms Pornography Child Morphed A. 336 ...... Dignity Violates Human Pornography Child B. Morphed 337 ...... Policy to Public Is Repugnant Pornography Child Morphed C. $2NODKRPD¶V'HILQLWLRQRI&KLOG3RUQRJUDSK\ 328 ...... Pornography Child States Morphed and D. Other A. The Difficulty of Defining Child Pornography ...... 313 ...... PornographyChild Defining of The Difficulty A. 315 ...... Exhibition B. Lewd 316 ...... Virtual C. 316 ...... D. Morphed 317 ...... Developments Early A. 318 ...... First andAmendment the , Pornography, B. Child &7KH&33$&RQJUHVV¶$WWHPSWWR%DQ9LUWXDODQG0RUSKHG&KLOG D. The Harms Caused Morphed Federal Circuit Courts and the by Child LAW ...... 332 LAW ...... PORNOGRAPHY ...... 325 PORNOGRAPHY ...... ,C-FINAL(D M K C Y META TO PROTECT CHILDREN FROM MORPHED CHILD CHILD MORPHED FROM CHILDREN PROTECT TO EACHAM VI. CONCLUSION ...... 338 V. THE NEED TO INCLUDE MORPHED CHILD PORNOGRAPHY IN OKLAHOMA IV. OKLAHOMA LAW DANGEROUSLY IGNORES MORPHED CHILD III. CHILD PORNOGRAPHY I.312 INTRODUCTION ...... II. TYPES OF CHILD312 PORNOGRAPHY ...... B 42010-tul_55-2 Sheet No. 82 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 82 42010-tul_55-2 42010-tul_55-2 Sheet No. 82 Side B 03/03/2020 13:59:43 2 M K QWLI\ C Y Ultimately, Ultimately, 4 \ DQDO\]LQJ XPLOITATION AND E IDPRXVO\ZURWH³, HILD HILD RUQRJUDSK\ VKRXOG EH 188 (2015). C LWUHFRPPHQGVWKHVLPSOH YSTEM S [Vol. 55:311 55:311 [Vol. 237 (2005). USTICE J NVESTIGATING ,I CIENCE CIENCE S RIMINAL RIMINAL ASEY C C ORENSIC ORENSIC F D¶VVWDWXWRU\GHILQLWLRQRIFKLOGSRUQRJUDSK\ OGHAN OGHAN INTRODUCTION 5 I. TULSA LAW REVIEW LAW TULSA &E AW AND AW AND L ) 2/18/2020 ) 6:57 AM . tit. 21, § 1024.1(A). § 1024.1(A). . 21, tit. TYPES OF CHILD PORNOGRAPHY THE , ORNOGRAPHY THE AND ERRARO TAT II. However, the current struggle to define child pornography in our our in pornography child to define struggle current the However, ELETE F ,P 1 D .S OT N KLA NTERNET USACK O ATTEI ATTEI I O DGYDQFHG DJH GHPRQVWUDWHV WKDW 6WHZDUW¶V DELOLW\ LQ  WR LGH M Rather, morphed child pornography consists of otherwise innocent images Rather, child pornography morphed HE 3 M. C :T ONIQUE ONIQUE ARMEN ARMEN ,C-FINAL(D While recent developments in technology have continued to create new conversation conversation to create new continued recent developmentsWhile have in technology 5HIHUULQJWRSRUQRJUDSK\6XSUHPH&RXUW-XVWLFH3RWWHU6WHZDUW Part II provides a brief overview of the history of child pornography. This section This section child pornography. of the history of overview a brief provides Part II and law child pornography the in the United the interaction of Partexplains III 3DUW ,9 LQWHUSUHWV 2NODKRPD¶V VWDWXWH GHILQLQJ FKLOG SRUQRJUDSK of definition any should fall within child pornography that morphed Part V argues . See generally . See 5 EACHAM ORNOGRAPHY technologically- pornography with a glance is not a viable option for defining child pornography today. child pornography defining for option is a viable a glance not with pornography 4. (2002). 242 234, U.S. 535 Coal., Speech Free v. Ashcroft of real children edited to appear as though the child is engaged act. the a sexual in as though appear real children edited to of and controversy about child pornography, the existence of child pornography predates the existence child pornography of child about pornography, and controversy M 1. 2. concurring). J., (Stewart, (1964) 197 184, U.S. 378 Ohio, v. Jacobellis P 312 312 B WKLV FRPPHQW DUJXHV WKDW 2NODKRPD¶V OHJDO GHILQLWLRQ RI FKLOG S protecting the thereby children to include updated child pornography that are morphed images. types these of exploited in This comment tracks the development of child pornography law, specifically on specifically focusing law, child pornography of the tracks development This comment is distinct Morphed child pornography law. andOklahoma child pornography morphed images children children virtual infrom engaging engaging sexual of of acts, or depictions sexual acts. in 3. C 3. NQRZLWZKHQ,VHHLW´ language needed to broaden to needed language Oklahom provides the context necessary the the to understand provides betweeninteractions the multifaceted and the law.child Specifically, this defines part child of pornography morphed definitions other with child pornography morphed and contrasting comparing by pornography child child pornography. and including lewd virtual categorical definitions, pornography is trackedlaws obscenity and state level. The federal along evolution of at the States, both law child pornography of The law. interaction to child pornography its relationship with Firstand the isAmendment discussed. the or not whether legallymorphed It constitutes variety utilizes child pornography. tools of statutorydifferent construction to answer this at question, the looking legislative the in the words of meaning code plain criminal and the in the this section behind intent statute. This part also addresses at the state the oftreatment child pornography level, noting child morphed and ofwhether child pornography definitions statutory different the is included those definitions. in pornography addressingAfter the child pornography. and exploitation by harms caused morphed should in included be child pornography that part concludes this morphed images, 2NODKRPD¶VVWDWXWRU\GHILQLWLRQRIFKLOGSRUQRJUDSK\)LQDOO\ 42010-tul_55-2 Sheet No. 82 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 82 42010-tul_55-2 42010-tul_55-2 Sheet No. 83 Side A 03/03/2020 13:59:43 . AL AND , ), C ), ´ 3 (2007). Rapid These These 11 12 18 U.S.C.§ ANGUAGE OCIETY OCIETY 13 with ,L S ), ´ RIME :C UDSK\UHYROXWLRQ´DQG -descript diagnosis-descript is a AW For example, paintings example, For KDVUHFRUGHGWKHVH[XDO L 6 The relationship between OMPUTERS AND OMPUTERS 10 Indeed, it has been been it has thatsaid Indeed, 8 ,C Ultimately, advancements Ultimately, in 17 RIME 313 313 :C 34 (1990). ORNOGRAPHY ORNOGRAPHY ± P 33 OSIS 15 HILD HILD C [E]ngaged in any act . . . of sexual intercourse . . . . . intercourse sexual of . . . act any in [E]ngaged ORNOGRAPHY ³ P MORPH EFINING EFINING [I]nclude any sexual conduct by a child. by conduct sexual any [I]nclude ³ R NVESTIGATION I HILD HILD in N , ,C META :A ³FKLOGSRUQRJUDSK\´GLIIHUJOREDOO\DQGPD\GLIIHUHYHQ Subtle differences among statutory definitions within the the definitions statutory within among differences Subtle note 6, at 4. 4. at 6, note 65. at 6, note 16 ILNER M ) 2/18/2020 ) 6:57 AM supra supra . § 827.071(5) ( Introduction , , RJUDSK\LVHOXVLYH-XVWLFH6WHZDUW¶VQRQ . ( § 1024.1(A) 21, tit. ELETE LAIRE LAIRE TAT D [D]epictsa person under 18 years of age personally engaging in or simulating sexual ORNOGRAPHY ³ TAT P In addition, written pornography describing pornography addition, In sexualwritten acts children with .S OT ILNER ILNER 1, 1 2016). ed., Hessick Byrne (Carissa &C 7 N 9 .S note 11, at 1. 1. at 11, note LA O F &M &M HILD HILD KLA Attempting to define child pornography while considering all the resulting resulting all the considering while pornography child to define Attempting ,C O and supra supra ONNELL 14 ), D § ( 311.11(a) ATE ¶ ´ T ONNELL ONNELL O D D ONSEQUENCES ¶ ¶ IM ODE ,C-FINAL(D AN C Advancements in technology increasedhave greatly the production and distribution For a number of reasons, including advancements in technology, a succinct advancements and clear reasons, including in technology, of For a number As the quote above illustrates, questions remain type regarding of image the that C M K . Compare . Id. . Id. . Id. . Id. The question of what constitutes child pornography is extraordinarily question constitutesThe childpornography what of complex. Standards that are applied or in each country are highly society subjective and are contingent upon cultural, translate intodifferent social and moral, not sexual, that religious beliefs do readily confine Even ourselves if we law. pornography, definition childlegal the of to concept a is . definitionselusive. . Legal of country. same the within jurisdictions legal among 8 7 C Y 17 12 13 EACHAM OCIAL OCIAL ENAL conduct . . . . . conduct 11. Carissa Byrne Hessick, Hessick, Byrne Carissa 11. Hessick, 16. depicting sexual activity between men and young boys have been discovered in ancient boys discovered have in been sexual and between activity depicting young men civilizations.Greek 10. O 10.

of child pornography. With the invention of camera in the the of With nineteenth century, the the invention early child pornography. of it, child pornography. and boomed, with industry pornography ³>D@OPRVWVLQFHPDQGLVFRYHUHGWKHDELOLW\WRZULWHRUGUDZKH DEXVHRIFKLOGUHQ´ definition of child porn definition A. The Difficulty of Defining Child PornographyChild Defining A. The Difficulty of poor default. poor even even invention the of printingin press thethe century.fifteenth P S 6. I 6. 2020] 2020] B has has survived from seventeenth-century and England. France provide more evidence of this challenge. of evidence United States provide more advancement in technology led to a proliferation of of child pornography. advancement in technology led to a proliferation 9. T 9. 14. concurring). J., (Stewart, (1964) 197 184, U.S. 378 O Ohio, v. Jacobellis 15. implications is a muddy task. Accordingly, the challenges of defining child pornography child pornography the challenges defining of task. is a Accordingly, implications muddy Commercial Exploitation the Sexual First WorldAgainst highlighted at the Congress were Children: of technology and pornography continues today. Significant today. can continues shift technology changes in and pornography technology in of years. a child pornography matter of and distribution creation the GHYHORSPHQWVFUHDWHGZKDWKDVEHHQGHVFULEHGDVD³FKLOGSRUQRJ is a challenging task. child pornography in created a context defining which constitutes child pornography. constitutes 42010-tul_55-2 Sheet No. 83 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 83 42010-tul_55-2 42010-tul_55-2 Sheet No. 83 Side B 03/03/2020 13:59:43 : A 18 M K ENAL Child 27 [S]uch [S]uch INORS C Y ³ .P M AL ); C ´ in a sexually GAINST GAINST The depiction The depiction A 19 . The current debate The current debate 22 (2003). RIMES RIMES Q DV WR ZK\ ³>P@RVW 26 C RIME PDQEHLQJ EX EX C S HDFKMXULVGLFWLRQPXVWDOVR ); 18 U.S.C. § 2256(8)(C) ( ´ goal is to end the extreme oppression 2, 22 (2011). ³ NTERNET NTERNET [Vol. 55:311 55:311 [Vol. I ,I OLICY N P :A l Ctr. for the Prevention of Child , Abuse, Child of Prevention the for Ctr. l ¶ t Look: Examining the Inconsistencies of Our Age Age of Our Inconsistencies the Examining t Look: 25 ’ . 859, 863 (2014). An overly simplistic An child definition of AW AND AW AND INKELHOR 20 EV Oxford English Dictionary English Oxford F :L (June 2010), https://ndaa.org/wp-content/uploads/Child- 2010), (June N .L.R ¶ , https://www.nambla.org/welcome.html (last visited Oct. 27, 27, Oct. visited (last https://www.nambla.org/welcome.html , AVID ORNOGRAPHY SS AL P A C [E]ngaged in any act . . . of sexual intercourse . . . &D S ³ ¶ HILD HILD Y 10 (2003). note 23, at 864; Nat at 864; 23, note ¶ ). ). ± TULSA LAW REVIEW LAW TULSA ORNOGRAPHY ,C ´ , 87 , 87 S. 9 TT P Who We Are We Who ITCHELL Therefore, because children lack the capacity to consent to to consent to capacity lack because children the Therefore, supra .A ) 2/18/2020 ) 6:57 AM [I]nclude any sexual conduct by a child. by conduct sexual any [I]nclude M 23 HILD HILD note 2, at 8. 8. at 2, note 2, at 8. note ³ UAYLE IST You Can Touch, But You Can You But Touch, Can You Q D ,C ELETE L Smith, Smith, ¶ supra supra D , , THEL THEL AT NFORCEMENT OT NAMBLA, NAMBLA, note 22, at 22. at is an 22, note (NAMBLA) Association Love Man/Boy American North The IMBERLY IMBERLY Pornography is generally thought to be a depiction of consensual consensual of to be a depiction is thought generally Pornography note 22, at 22. 22. 22, at note E ´ . tit. 21, § 1024.1(A) ( N ILLESPIE ,N &E 21 O This element of consent provides an explanatio provides consent This of element ,K ASEY ASEY [D]epictspersona under 18 years of age personally engagingin simulating sexual conduct AW see also also see TAT ³ 24 supra supra L . § 827.071(5) ( ); , A. G , &C &C .S ´ OLAK AYLOR TAT W [S]uch visual depictionhas beencreated, adapted, or modifiedto appear thatan identifiable KLA T ³ .S O AX ILLESPIE LISDAIR LISDAIR ILLESPIE LA ,C-FINAL(D ERRARO ERRARO ANIS ANIS While there might be differences be there While in the legal definitions,might there ismany a common This view provides the great dividing line between pornography and child and child between line pornography dividing the great provides This view As a result, an image of a child engaging in sexual acts falls within the definition of of definition acts sexual the falls a childwithin in engaging of an image As a result, §311.11(a) ( §311.11(a) OF ESPONSE ); F . Id. . See 22 R ´ 19 26 ODE HE EACHAM 18. F 18. 2018). G 25. definitions of child pornography are premised thebasis on the that isharm causedof to child pornography of definitions WKHFKLOGLQWKHSURGXFWLRQRIFKLOGSRUQRJUDSK\´ ofConsent and Child Pornography Law is engaging in sexually explicit conduct. explicit sexually in is engaging . . . . . 20. M 20. A 22. example of an organization that rejects this basic premise, stating that its its that stating premise, basic this rejects that an organization of example of men and boys in mutually consensual relationships by . . . educating the general public on the benevolent benevolent the on public general the . educating . by . relationships consensual mutually in boys and men of love. man/boy of nature 23. MacKenzie Smith, Note, understanding about some core about some understanding expressing Justice this Perhaps principles. was Stewart commonality, the not and technical challenges, his description. offering when the 1857 in defined in first was Pornography sexual an image activities, showing an image sexual acts involving definition a child is by . of C 2256(8)(C) ( 24. G 24. technology spur unique and creative ways to accomplish the seediest of tasks and, seediest tasks accomplishto the andspur of technology unique creative ways Because each legislaturesstate require developaccordingly, law. continually to the MXULVGLFWLRQFUDIWVLWVRZQGHILQLWLRQRI³FKLOGSRUQRJUDSK\´ itsmake sure definition continues that to encompassfall pornography child the types of the , technology, of the legal safety created by and computers.within loopholes 314 314 B T Pornography-Statutory-Compilation-6- 2010.pdf?click=Child%20Pornography%20%E2%80%94%20Comprehensive%20(updated%20June%202010). J 27. 21. F 21. .

visualdepiction hasbeen created, adapted, or modified toappear that anidentifiable minoris engagingin sexually explicit conduct. pornography. All fifty states and the federal government have laws establishing laws have government states federal and the an age of fifty All pornography. activity.consent sexual for of sex and sexualof activities center.is the at H[SOLFLW PDQQHU´ SRUQRJUDSK\LV³DQLPDJHWKDWGHSLFWVDFOHDUO\SUHSXEHVFHQWKX regarding the definition of child pornography is not focused on these images of traditional traditional images of these focused is not on child pornography of the definition regarding clearly included child pornography Not only of is this type child pornography. in any possessed offenders. most by child pornography type it is the of possible definition, child pornography in all fifty state jurisdictions and the federal and the law. state jurisdictions all fifty in child pornography Pornography Statutes Pornography 42010-tul_55-2 Sheet No. 83 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 83 42010-tul_55-2 42010-tul_55-2 Sheet No. 84 Side A 03/03/2020 13:59:43 , : 32 WKH AW EAL L Z S ¶ ); U.S.C. 18 ´ ILQLQJ FKLOG LWLRQV RI FKLOG ORNOGRAPHY ROSECUTOR P P A , WKH³OHZGH[KLELWLRQ´ HILD HILD ). C ´ DEDWKWXELVDSRWHQWLDOO\ isely fits within the definition, definition, the within isely fits EFINING EFINING HOTOGRAPHS R P 37 S ¶ 315 315 in , OTHER OSIS test was developed answer to help these :AM The reason to include this type of image is image is of type this include The to reason Beyond the traditional understanding of child of the traditionalBeyond understanding [L]ewd exhibition of uncovered. genitals . . 31 ³ MORPH Dost 81, 86 (CarissaByrne Hessick ed.,2016). NNOCENCE I The The META 35 Therefore, lewd images, while not specifically images of images images, of specifically while not Therefore, lewd 21 (2010) (telling the story of a mother who was prosecuted for taking in Child Pornography Law Pornography Child in ± 30 ” 20 ONSEQUENCES RAMING RAMING ) 2/18/2020 ) 6:57 AM C ,F In these instances, it is not required that there be a depiction of a a depiction of a be there these instances, that In required it is not ELETE . ( 1024.1(A) § tit. 21, D test lists that several assist factors a courtor determining in whether 29 OCIAL OCIAL ESPONSE ESPONSE TAT “ S OWELL OT 28 R P N .S als. S 'HWHUPLQLQJ WKH GLIIHUHQFH EHWZHHQ D ³ODVFLYLRXV H[KLELWLRQ RI O ¶ Dost The note 33, at 99. 99. at 33, note AND AND . tit. 21, § 1024.1(A); 18 U.S.C. § 2256(2)(A)(v). . 2256(2)(A)(v). § U.S.C. 18 1024.1(A); § 21, tit. . 1024.1(A). § 21, tit. , It is certainly more difficult than determining whether a photo displays a a displays determining than a photo whether difficult more It is certainly KLA YNN [L]ascivious exhibition of the anus, genitals, or pubic area .. . 33 ³ 34 OWN , L TAT TAT , O The The T supra .S .S This particular type of child pornography interacts with technology because because technology interacts with child pornography of type This particular 36 at 10. at 10. at 87. at 87. 38 ANGUAGE KLA KLA ,C-FINAL(D MALL MALL O However, apparently innocent family photos might include pictures of partially partially include of pictures photos might innocent family apparently However, While someWhile that argued have this test is and therefore unconstitutional, overbroad Id. e.g. See, Id. Id. See, e.g. See, O &HUWDLQO\DQ\LPDJHRIDFKLOG³HQJDJLQJ´LQVH[SUHF %RWKWKHIHGHUDODQGVWDWHVWDWXWHVKDYHHOHPHQWVWKDWLQFOXGH S ,L M K . . Id. . C Y 30 34 31 RIME EACHAM QRWDQLPDJHLVD³ODVFLYLRXVH[KLELWLRQ´RIFKLOGQXGLW\ obvious: the elements of consent are equally applied to an image of a child who cannot a child of who elements consent an image applied are equally the of to obvious: to engagingconsent in sex consent or their and their to taking cannot exposing off clothes viewer. the stimulate to sexually order in body children or naked clothed a in or other familybathtub contexts. this In definition fact, has parents prosecution taken of photos led to the have of children in who their bathtubs. sex act, but mere child . sex act, but mere § 2256(2)(A)(v) ( the breadth of this particular branch in most child pornography definitions remains remains definitions child pornography particular branch in most this of breadth the flexible. 2003 study determined that eighty percent of offenders had images of children being being children of hadimages offenders of percent eighty that determined study 2003 sexually penetrated. questions. 37. 2011). Cal. (S.D. 832 828, Supp. F. Adler, 636 Dost, v. States United 38. AND A A AND 28. 29. 2020] 2020] B 35. 36. C photos of her bathing daughter). daughter). bathing her of photos Adler, Amy 33. child being child being sexually assaulted. 32. 6RPH HYHQ DUJXH WKDW WKLV LV WKH ³PRVW SUREOHPDWLF DVSHFW RI GH SRUQRJUDSK\´ FKLOGUHQ ³HQJDJLQJ´ LQ VH[XDO FRQGXFW GR ILW LQWR FRPPRQ GHILQ pornography. For example, For example, Oklahoma the includes law pornography. states that child pornography ³OHZGH[KLELWLRQRI XQFRYHUHGJHQLWDOV´ JHQLWDOV´DQGDQLQQRFHQWIDPLO\SKRWRJUDSKRIDQDNHGFKLOGLQ task. difficult

RIFKLOGUHQ¶VJHQLW not only in official statutes, only not of thebut also in those minds who Justice agree Stewart. with are there However, images children that of do fit perfectlynot into this bright-line GHILQLWLRQRIFKLOGUHQ³HQJDJLQJ´LQVH[ complexity the of issue. this to clarify categorieshelp other three will pornography, B. Lewd Exhibition 42010-tul_55-2 Sheet No. 84 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 84 42010-tul_55-2 42010-tul_55-2 Sheet No. 84 Side B 03/03/2020 13:59:43 52 J.L. M K that ) are C Y ² 51 Pseudo- ³ EGAL AND ORNELL ORNELL :L manga Rather than Rather than , 17 C 41 It is the cutting It is the 48 ROOMING G note 22, at 100. 40 JHQLWDOV supra , EXUAL EXUAL S ILLESPIE [Vol. 55:311 55:311 [Vol. G The method of morphing can be be can of morphing The method 49 See ´ 44 , 535 U.S. at 242. 242. at U.S. 535 , ORNOGRAPHY AND isthe term commonly used and adoptedby the Supreme P ´ In other words, photo editing might be the the be might editing photo words, other In The distinction between virtual and morphed morphed and virtual between distinction The rendered. ³ 39 50 HILD HILD or Ashcroft ´ that includes the that most graphic content is as known ,C morphed ³ ST Increasingly realistic Increasingly images prolific because are more O spliced TULSA LAW REVIEW LAW TULSA 42 ³ manga bringing together innocent and explicit images innocent together bringing note 6, at 66. 66. at 6, note ² ³7KHVHLPDJHVDUHLQHVVHQFHILFWLWLRXVFKLOGSRUQRJUDSK\ ) 2/18/2020 ) 6:57 AM , Ashcroft v. Free Speech Coal.,535 U.S. 234, 242 (2002); United States v. note 2, at 2, at 237; note note 2, at 237. UZANNE supra 43 S The Uncertain Fate of Virtual Child Pornography Legislation Pornography Child of Virtual Fate Uncertain The , ELETE 30 (2nd Cir. 2011); United States v. Bach, 400 F.3d 622, 630 (8th Cir. 2005) . is not the only term used to describe the types of manipulated images described described images manipulated of types the describe to used term only the not is ± supra supra ´ D See , , See, e.g. OT ILNER note 22, at 100. 100. 22, at note N 124 (2009). However, O ASEY ASEY child pornography is created when an innocent photo of an actual child child actual an of photo innocent an is created when pornography child &M morphed supra 47 ³ , &C &C , 535 U.S.242. at 221, 224 (2007). A specific variety of variety specific A Y ESPONSES ESPONSES ONNELL ¶ These artistic drawings or computer-generated These artistic drawings images children show engaging State v. Bolles, 541 S.W.3d 128, 144 (Tex. Crim. App. 2017). 2017). App. Crim. (Tex. 144 128, S.W.3d 541 Bolles, v. State R 45 at 223. D ILLESPIE ¶ OL ,C-FINAL(D ERRARO ERRARO 46 is another label. label. another is . Morphed Id. Id. Morphed child pornography a of combining is variety components. created by Morphed child pornography Id. See generally id. generally See See Virtual child pornography is dissimilar to the other types because it is neither a photo it is because a photo is types neither dissimilar other to the child pornography Virtual This type of imagery is common is comic in imagery Japan, books of This type where ( ´ .P . Id. . Ashcroft UB 43 49 EACHAM OCIETAL here. Other commentators use the labels labels the use commentators Other here. Hotaling,634 F.3d 725,729 48. F 48. Court and circuit courts. courts. circuit and Court 51. 52. difference between an innocent family photo pornography. and child family an innocent between difference 47. The word word The 47. 46. images in sex and sexual contentin activity. the However, createdwas not a child, the use of with child pornography. category of a different of to the creation leading D. Morphed constitutes this unique type child pornography. type of unique this constitutes and pasting of body parts body of and pasting accomplished through a variety of means ranging from rudimentary scissors rudimentary to glue and from ranging of a means variety through accomplished computersophisticated editing programs. child pornography, while both employ technology to create or edit images, is important to to create or edit images, technology both employ while child pornography, actual child is the an categories. The these use of paramountunderstand difference. 40. &P S 39. photoshopping and cropping cropping photo particular a and determining a be in whether can factor photoshopping nudity. a lewd as exhibition of qualifies 316 316 B utilizing a real child, some pornographic images child, a real utilizing some pornographic are completely computer or generated utilize depicted as minors.

EHFDXVHDJHQXLQHFKLOG>ZDV@QHYHULQYROYHG´ of advancing technology. of is edited to make it appear as though the child itis edited is engaging to appear as though in make a sexual act. 50. F 50. RI DQ DFWXDO FKLOG HQJDJLQJ LQ VH[ QRU DQ DFWXDO FKLOG¶V QDNHG C. Virtual 41. (2002). 239 234, U.S. 535 Coal., Speech Free v. Ashcroft 42. Note, McLean, Chelsea 45. O 45. popular. 44. G 44. 42010-tul_55-2 Sheet No. 84 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 84 42010-tul_55-2 42010-tul_55-2 Sheet No. 85 Side A 03/03/2020 13:59:43 It is is It 56 With the blur blur the With 58 KHFLUFXLWFRXUWV¶WUHDWPHQW child is the the subject of However, advancements However, in the real 317 317 57 to engage in sex. Morphed child OSIS 55 pleasure. appearing ² MORPH META note 20, at 37. 37. at 20, note note 6, at 91. 91. at 6, note ) 2/18/2020 ) 6:57 AM note 2, at 238. 2, at 238. note supra supra , and presumably , This is a different level of photo editing photo level the commonsocial editing than of This is a different CHILD PORNOGRAPHY AND THE LAW ELETE 53 supra D , 54 III. OT ILNER UAYLE N O ASEY &M &Q &C AYLOR ONNELL T at 237. ; D ¶ ,C-FINAL(D ERRARO Second, consider a photo of an innocent child. That photo is cropped to consist of is to consist cropped child. That an innocent photo a photo of consider Second, Id. Id. The following are two common examples of morphed child pornography. First, child pornography. examples of common morphed are two Thefollowing This Part addresses the interaction between child pornography and the law. Focusing law. and the This child interaction Part pornography between addresses the While child pornography might have ancient have lawsmight childWhile origins, pornography against child pornography Morphed child pornography is dissimilar to both is dissimilarchild and traditional to both virtual Morphed child pornography M K . Id. . Id. C Y 56 57 EACHAM SRUQRJUDSKHU¶V LPDJH² Images of real children can be taken from virtually any source; the internet, internet, any magazines, the from taken be source; virtually can children real Images of children edited be then in to depict sexual engaging can children real of Theseetc. photos these Some situations. acts or any of images or practically can be photoshop with made software. editing other 58. O 58. only the face of the child. Next, the pornographer places that cropped image on the body on the body that places cropped image child. the Next, pornographer the the of face only a of naked photo . the child engagingCertainly, not a pornographic of was in sexual acts at the time the innocent taken, butphoto was child the of the now image shows a a child. upon act committed a sexual of depiction 53. 54. F 55. 2020] 2020] B technology facilitating life-like photo edits will confuse this distinction. confuse will facilitating edits life-liketechnology photo between the different categories of child pornography, jurisdictions must define child jurisdictions define must categories child different pornography, of the between precision. with pornography distinct from virtual child pornography because a because child pornography distinct virtual from media filters on Instagram on filters media or . Rather than changing the colors shade or of slices and splices photos the child pornography face, a fictional morphed incorporating the until images reveal actual children eating of a child innocently an a photo consider ice cream The cone. child is engagingnot their and sex take that showing or photo in exposed can genitals. However, a pornographer an actual of a photo superimposing by cone replacing ice cream editit significantly, the the Now, ice cream cone. post-production,penis inplace of child appears the to be engaging in a sex act. pornography does not polish or tone photos of children, but children, or of photos polish tone not does to together edits rather photos pornography photo. explicit create a single pornography. It is because child divergent no traditional was childfrom pornography pornography. acts. such depict to altered is photo the though even activity sexual in engaged first on the first level,federal it explores relationship obscenity, between the child pornography, a and the First necessary providing Amendment, a discussion thefor recent of foundation FDVHVWKDWWDFNOHGPRUSKHGFKLOGSRUQRJUDSK\$GLVFXVVLRQRIW of morphed child pornography follows. child pornography of morphed A. Early Developments 42010-tul_55-2 Sheet No. 85 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 85 42010-tul_55-2 42010-tul_55-2 Sheet No. 85 Side B 03/03/2020 13:59:43 61 . . . . M K New New The The C Y 62 On May On May The The 66 65 243 (1988). However, the the However, 68 73 MERICA A HWWOHG´HVSHFLDOO\DVLW KLOGSRUQRJUDSK\>"@ SXUSRVHV´ 64 Before the statute Before the was passed HILDREN IN 70 C It is no surprise that one member one member that surprise is no It [Vol. 55:311 55:311 [Vol. 67 BUSE OF BUSE A Because of the media attention on the the on attention media the Because of DLUHGDQHSLVRGHZLWKDUHSRUWWLWOHG³.LGGLH 63 EXUAL :S 72 TULSA LAW REVIEW LAW TULSA ETRAYED 60 Minutes B note 6, at 17. 17. at 6, note note 6, at 15. 15. at 6, note SXEOLVKHGDVHULHVRIVWRULHVRQ³FKLOGSUHGDWRUV´ ) 2/18/2020 ) 6:57 AM supra supra ILENCE ILENCE , , S ELETE California the first was a pass to state individuals prohibiting law D This new law banned the use of children in the production of child child children of use of banned This the the new production law in Y 59 69 OT ILNER ILNER ,B N note 11, at 3. 3. at 11, note note 11, at 1. 1. at 11, note note 11, at 2. 2. at 11, note note 11, at 3. 3. at 11, note O &M &M While more than While four legalmore decades of development passed have since . I. amend. 71 supra supra supra supra supra supra supra supra REWDSON ONST printed twenty-seven articles focused on child exploitation in 1977. in child exploitation on twenty-seven articles printed focused C Chicago Tribune C ONNELL ONNELL at 16. at 16. D D But it took nearly ten years to expand awareness of child pornography. The 1970s The 1970s pornography. ten of child to expand awareness years it took nearly But ¶ ¶ ,C-FINAL(D OHN The media focus on child pornography in the latter half of the 1970s snowballed. In In snowballed. the 1970s of the latter half in child pornography on focus The media In 1978, Congress enacted a new federal statute, the Protection of Children Against Children statute, the Protection of enactedfederal a new 1978, Congress In Ordinarily, the Firstspeech. the provides Amendment for Ordinarily, protection 60 . Id. . Id. . Id. . Id. . Id. . Id. 67 62 70 60 63 64 EACHAM RI&RQJUHVVLQVWDWHG³$\HDUDJRZKRKDGHYHUKHDUGRIF Convention, the issue of child pornography was spotlighted. was child pornography issue of the Convention, All of a of there sudden it All in Time In was. newspapers, onmagazine, and television, The revelations Children, andwere the House disgusting. shocking floor. on inevitably, DJHVWREHLQJXVHGVROGWUDGHGSKRWRJUDSKHGIRUVH[XDO 68. Hessick, Hessick, 68. 7 (1978) 69. Stat. 92 95-225, No L. 1977, Pub. of Act Exploitation Sexual Against Children of Protection (codified at 18 U.S.C. § 2251). 71. J 71. was a notable decade for the expansion not only of child pornography, awareness of child awareness of of pornography, child only not expansion the for notablewas a decade pornography. child prohibiting laws of also child sexual and but abuse, pornography,

72. Hessick, Hessick, 72. WKDWWLPH ³WKHODZ VXUURXQGLQJFKLOGSRUQRJUDSK\LV IDUIURP V relates to morphed child pornography. relates to morphed York Times administration startedadministration a clean-up campaign sextargeting shops; shops in particular four child pornography. to sell known were 73. U.S. 73. it was possible to purchase more than 250 different child pornography magazines in the in magazines child pornography 250 different more than to purchase possible it was United States. pornography connected to interstate or foreign commerce. to interstate or foreign connected pornography 1977, the the 1977, 59. Hessick, Hessick, 59. are relatively are recent. 318 318 B 3RUQ´WKDWVSXUUHGDWLGDOZDYHRIOHWWHUVWRSROLWLFLDQV 61. O 61. 15, 1977, CBS news program program news CBS 15, 1977, Some believe that the first real awareness of child pornography came in September 1975 1975 camein September believe that Some awareness real the child pornography first of Convention. the 1976 Democratic the for New during preparation in York City Sexual Exploitation. Sexual B. Child Pornography, Obscenity, and the First Amendment the First and Obscenity, Pornography, B. Child from using a minor in connection with the preparation or distribution of obscene in obscene matter of distribution or the preparation connection with in a using minor from 1961. 65. Hessick, Hessick, 65. O 66. 42010-tul_55-2 Sheet No. 85 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 85 42010-tul_55-2 42010-tul_55-2 Sheet No. 86 Side A 03/03/2020 13:59:43 . 80 In In The The 84 The The 76 Miller 74 ORNOGRAPHY P HILD HILD Court concluded &RXUWLV³ZKHWKHU C 50 (1982). (1982). 50 QW 0RUHRYHU ³WKH ± States began to ban States began to ban LW\ VWDQGDUGV´ ZRXOG 82 Miller This differentiation was Thiswas differentiation EFINING EFINING UDSK\ZDVIORXULVKLQJ´ 85 R IROORZLQJWKUHHIDFWRUV The Supreme Court refined refined Court The Supreme Jacobellis RWHFWHGDQGREVFHQLW\D³GLP . The However, it is important to to it is important However, in 78 Obscenity is not identical to is to identical not Obscenity ). ). 83 ´ 75 319 319 icate theicate distinction is robust. not OSIS protected by the First protected by Amendment. is 19, 24 2016). ed., Hessick Byrne (Carissa New York v.New Ferber, This changed in 1982, ten years after after 1982, ten years in changed This Miller v. California MORPH 81 , the Supreme Court had not yet addressed child not yet had Court Supreme , the New York v. Ferber, 458 U.S. 747, 749 747, U.S. 458 Ferber, v. York New , decided in 1982, by twenty-five years. years. twenty-five by in 1982, , decided 79 standard for obscenity; and (3) twenty states, including New York, York, New including states, twenty (3) and obscenity; for standard META ONSEQUENCES ONSEQUENCES Ferber Miller C see also also see Miller 4; 4; ± ) 2/18/2020 ) 6:57 AM OCIAL OCIAL S ELETE D The rudimentary The rudimentary test as applied the by AND AND The Context and Content of , OT (1) twelve states prohibited only the production of child pornography; (2) fifteen states states fifteen (2) pornography; child of production the only prohibited states twelve (1) 77 N ³ note 11, at 3. 3. at 11, note note 11, at 3 at 11, note O supra supra supra supra ANGUAGE ,L , decided in1957, preceded , 354 U.S. at487. (stating that that (stating at 191. ,C-FINAL(D RIME Id. However, at the time of of time at the However, New York distinguished between child pornography and obscenity by adopting a and obscenity distinguished adopting by York between child pornography New Roth v. United States, 354 U.S.476,492 (1957); York New v. Ferber, 458U.S. 747,756 (1982). M K . Id. . . Roth . Roth . Id. :C D >:@KHWKHU³WKHDYHUDJHSHUVRQDSSO\LQJFRQWHPSRUDU\FRPPXQ whether the (b) . . .interest[;] prurient the appeals to as a whole, taken find work, the that defined conduct sexual specifically offensive way, patently describes, a in depicts or work serious as a whole, lacks taken literary, whether the the and work, applicableby (c) law; state value. or scientific artistic, political, C Y 81 74 75 76 78 AW EACHAM WKDWWKH³EDVLFJXLGHOLQHV´WRGHWHUPLQHREVFHQLW\LQFOXGHGWKH 83. Hessick, Hessick, 83. prohibiteddistribution of childpornography if it was not legally obscene 84. Hessick, Stanley v. Georgia, 85. 394 U.S. 557,559 (1969). SRUQRJUDSK\DQG-XVWLFH6WHZDUW¶VVWDWHPHQWVLQG its definition of unprotected obscenity in obscenity unprotected of its definition andthe federal governmentprohibited thedistribution of material depicting children engaged in sexual conduct the met also material the if only but child pornography within the past the to push not within framework, current obscenity child pornography wanting First Amendment. exceptionto the established obscenity 82. note that note possession ofmere obscene materials

Supreme Court has created obscenity Supreme and for exceptions pornography. child L 2020] 2020] B to the average person, applying contemporary community standards, the dominant theme theme standards, dominant community the applying contemporary average person, to the RIWKHPDWHULDOWDNHQDVDZKROHDSSHDOVWRSUXULHQWLQWHUHVW´ Some commentators believe this resulted from the weighty protection applied to speech speech believe this to applied resulted commentators Some protection the weighty from time. this during Court the Supreme by DQGXQFHUWDLQOLQH´ &RXUWHYHQFDOOVWKHGLYLGHEHWZHHQZKDWLVFRQVWLWXWLRQDOO\SU SRUQRJUDSK\ QRU FRQVLGHUHG LW DQ H[FHSWLRQ WR WKH )LUVW $PHQGPH LQGXVWU\GHYRWHGWRSURGXFWLRQDQGGLVWULEXWLRQRIFKLOGSRUQRJ obscenity exception predates that of child pornography. of predates exception that obscenity could child ban not as obscenity states targeting child pornography other words, possession. Thatpornography is, until states like New York the legalmade distinction and child pornography obscenity. between statute thatof criminalized production separate and distribution the child pornography, obscene material. a statute of the criminalizing from distribution Perhaps as a response to the substantial substantial Perhaps to the media attention issues of as a response to the child exploitation there was legislative response. a and child pornography, massive 77. (1964). 187 184, U.S. 378 Ohio, v. Jacobellis Weinstein, 79. James Miller v. California, 80. 413 U.S. 15,24 (1972) (quoting Kois v. Wisconsin,408 U.S. 229,230 (1972)). 42010-tul_55-2 Sheet No. 86 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 86 42010-tul_55-2 42010-tul_55-2 Sheet No. 86 Side B 03/03/2020 13:59:43 M K f not f not C Y DWHQWO\ The Court Court The Second, the Second, the 87 90 of pornographic The images a are 91 LFDOO\ GHYRLG RI )LUVW However, the Court the Court However, ). Third, the distribution, distribution, Third, the ´ 88 ZRUGV³VH[XDOFRQGXFW´ SDUWRIWKHSURGXFWLRQRI 92 RIFKLOGUHQ LQJFKLOGUHQ´ test does not apply to child to child apply test does not KHUHJXODWLRQ Miller [Vol. 55:311 55:311 [Vol. , 458 U.S. at 756). of the harm experienced. harm the of Court essentially drew a line in the sand, carving a a sand, the carving a in essentially drew Court line 95 Ferber ² ZDVWKHILUVW6XSUHPH&RXUWFDVHWRH[DPLQHD³VWDWXWH TULSA LAW REVIEW LAW TULSA However, because the because the However, Ferber 96 test to evaluate the of constitutionality child pornography , the Supreme Court held that child pornography, depictions child pornography, heldthat Supreme Court , the ) 2/18/2020 ) 6:57 AM Ferber The The 86 )RXUWKWKHYDOXHRIFKLOGSRUQRJUDSK\LVH[WUHPHO\ORZ³L ELETE 89 Miller D 93 OT and exacerbator note 80, at 19 (citing (citing 19 at 80, note N Court also provided specific guidelines for child pornography laws. child pornography for guidelines specific also provided Court ² O Court listed several reasons for stripping First listed stripping Amendment for several protections Court reasons [L]aws directed at the dissemination of child pornography run the risk of suppressing suppressing of risk the run pornography child of dissemination the at directed [L]aws ³ supra The Court therefore justified the exclusion of child pornography from the the from exclusion child pornography the of therefore justified The Court Even with these limited instructions, the Court did something remarkable in in did remarkable the Court something instructions, limited these Even with  WKH VH[XDO FRQGXFW QHHG QRW PHHW WKH REVFHQLW\ VWDQGDUG RI ³S 94 , 458 U.S. at 759. , 485 U.S. at 764. , 458 U.S. at 753. 97 ´ Ferber Ferber New York v. Ferber v. York New at 764. at 756, 759. at 762. at 761. at 759. at 758. at 756 at ( ,C-FINAL(D Id. Ferber In In The The Id. Ferber The The . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Ferber . Id. . Id. . Id. . Id. DFWXDO FKLOGUHQ HQJDJHG LQ H[SOLFLW VH[XDO FRQGXFW LV ³FDWHJRU 96 95 94 93 92 91 90 EACHAM protected expression by allowing the hand of the censor to become unduly heavy. unduly become to censor the of hand the allowing by expression protected 89. 6WDWHVPXVWDGHTXDWHO\GHILQHWKHFRQGXFWWREHSURKLELWHG7KH must be described and defined. be describedmust and 97. distribution of of images children. such abuse is of sexual distribution related to the GLUHFWHGDWDQGOLPLWHGWRGHSLFWLRQVRIVH[XDODFWLYLW\LQYROY $PHQGPHQWSURWHFWLRQ´ 88. ultimately rejectedultimately the ODZVDQGQRWHGWKDW³6WDWHVDUHHQWLWOHGWRJUHDWHUOHHZD\LQW GHSLFWLRQVRIFKLOGUHQ´ First Amendment jurisprudence by creating a category exempt from the First Amendment exempt a category from creating First jurisprudenceAmendment by unprotected is child pornography other words, In theory. a based on harm-in-production child creation of the the of because to children caused the harm during Constitution by permanent record permanent 86. Weinstein, Weinstein, 86. 87. the catalyst for the Supreme Court to consider whether or not child pornography, separate pornography, child not or considerto whether Court Supreme the for catalyst the First the Amendment. exception, the obscenity by protected is from of of 320 320 B pornography >FKLOGSRUQRJUDSK\@´ DGYHUWLVLQJDQGVHOOLQJRIFKLOGSRUQRJUDSK\DUH³DQLQWHJUDO cautiously stated its natural hesitancy to promote . promote to hesitancy its natural stated cautiously protections of the First Amendment as a unique class of its First as a unique class of express the of Amendment materials because of protections children. harming of the to connection de minimis category for child pornography distinct from obscenity. distinct obscenity. This clearly a defining was from child pornography category for and in law. the child relationship pornography between moment the Rather than the use First exception exception to the Amendment, Court obscenity traditional created the a new of First material. to the Amendment type this for from child pornography. First, child pornography. from reasoned the Court that the children in pornography of use ³LVKDUPIXOWRWKHSK\VLRORJLFDOHPRWLRQDODQGPHQWDOKHDOWK´ RIIHQVLYH´ 42010-tul_55-2 Sheet No. 86 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 86 42010-tul_55-2 42010-tul_55-2 Sheet No. 87 Side A 03/03/2020 13:59:43 , of of the HQ LQ WKH Ashcroft v. NTERNATIONAL I K\ZDVIXUWKHU . Ultimately, the the . Ultimately, sine qua non sine WKH ³SK\VLFDO DQG ILOPYLGHRSLFWXUHRU Ferber ATIONAL AND AND ATIONAL :N or is indistinguishable from AW 7KH&33$¶VODQJXDJHSURYLGHG L 321 321 107 OSIS Because possession obscene of is material Therefore, the Therefore, the Court utilized the harm-in- 99 , the Supreme Supreme Court that, the held couldOhio Notice that this harm is not explicitly linked linked explicitly not is harm this Notice that . 229, 232 (2011). 101 Pornoshopped:WhyCalifornia Should Adopt the Federal Congress crafted the CPPA to include virtual Congress crafted the CPPA virtual to include 98 EV MORPH 105 ORNOGRAPHY AND THE AND ORNOGRAPHY .L.R P Osborne NT META E Section 2256(8)(B) of the CPPA defined child child defined CPPA the of 2256(8)(B) Section HILD PLQRU>V@´ . In . In C 106 -in-production boundaries by including both virtual and virtual both by including boundaries -in-production ) 2/18/2020 ) 6:57 AM to childban possession pornography. of , 32L.A. This new federal definition of child pornography stepped beyond stepped beyond child pornography of definition federal This new ELETE JHQHUDWHGLPDJHRUSLFWXUH´WKDW³LV That is, until Congress passed the Child Pornography Protection Protection Pornography Child Congress passedThat the is, until 108 . D NTERNET ¶V KDUP 104 ,I OT 103 Ferber Court held that virtual pornography was not child pornography as notwas child pornography pornography that virtual held Court N because no actual children because involved no actual the productionwere in these of O 'XULQJ WKLV WLPH ³WKH DFWXDO SDUWLFLSDWLRQ DQG DEXVH RI FKLOGU Ferber 59. 59. KDENIZ this holding provides another distinction another between provides holding obscene this and materials Osborne v. Ohio ± A ¶VDWWDFNRQWKHSURGXFWLRQDQGGLVWULEXWLRQRIFKLOGSRUQRJUDS , 495 U.S. at 109. at 109. , 495 U.S. , 535 U.S.256. at 102 Ferber QRUHQJDJLQJLQVH[XDOO\H[SOLFLWFRQGXFW´ 100 Ashcroft 97 (2008). Stanley v. Georgia, 394 U.S. 557, 559 (1969). at 758 AMAN AMAN ,C-FINAL(D Before 1996, both virtual and morphed child pornography were left unaddressed by unaddressed by left were pornography child morphed and virtual both 1996, Before The The Ferber Osborne M K . Ashcroft . Id. . Id. . See The CPPA: Congress’ Attempt to Ban Virtual and Morphed Child Pornography Child Morphed and Virtual Attempt to Ban Congress’ The CPPA: C Y 98 ESPONSES ESPONSES EACHAM 108 100 defined by by defined

child pornography. While it would be paternalistic to prohibit the viewing the obscene to prohibit of be paternalistic it would While child pornography. PDWHULDO GHQ\LQJ WKH ULJKW WR YLHZ FKLOG SRUQRJUDSK\ SURWHFWV psychological well-being of . . .psychological well-being of federal law. federal production logic of of logic production C. child pornography in its definition, reacting to the computer technology that computer to its technology reacting the in definition, makes virtual child pornography possible. child pornography production or dissemination of pornography involving minors was the the minors was involving of pornography or dissemination production Act of (CPPA). 1996 Act provisions proscribing virtual child pornography were held unconstitutional by unconstitutional held were pornography child virtual proscribing provisions the opportunity for the United States Supreme Court to consider the definition of child child of definition United the to consider the Court for States Supreme opportunity the the lightFirst obscenity, of and in Amendment, pornography pornography and subsequent distribution. subsequent and pornography R 2020] 2020] B 103. 1999). Cir. (9th 1089 1083, F.3d 198 Reno, v. Coal. Speech Free as (codified 3009 Stat. 110 104. 121, § 104-208, No. L. Pub. 1996, of Act Prevention Pornography Child amended18 at U.S.C. § 2256);Brian Yamada, Note, Standard forChild Pornography 105. 18 U.S.C. § 2256(8)(B) (including virtual child pornography); 18 U.S.C. § 2256(8)(C) (including (including 2256(8)(C) § U.S.C. 18 pornography); child virtual 105. (including 2256(8)(B) § U.S.C. 18 pornography). child morphed 106. (2002). 240 234, U.S. 535 Coal., Speech Free v. Ashcroft 107. added). (emphasis 2256(8) § U.S.C. 18 SRUQRJUDSK\DV³DQ\YLVXDOGHSLFWLRQLQFOXGLQJDQ\SKRWRJUDSK\ or computer-computer the scope the of its definition. in pornography morphed not illegal,not to a lack of consent of a lack to by centralits to inchildren minor activities,sexual is it obviously but foundation. expanded in expanded in prohibit the possession the prohibit of child pornography. UHJXODWLQJVFKHPH´ 102. Y 101. 99. Osborne v. Ohio,495 103, U.S. 111 (1990). that of a of mi that 42010-tul_55-2 Sheet No. 87 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 87 42010-tul_55-2 42010-tul_55-2 Sheet No. 87 Side B 03/03/2020 13:59:43 120 121 M K This This C Y 110 GXFW´ concluded Court only Court Lastly, the 116 held that the link link the held that OO´ Ashcroft Ashcroft VLWYHU\GLIILFXOW´WR First, it could be used used be First, it could Q FUHDWHG DGDSWHG RU 113 DEXVHZDVWRR³FRQWLQJHQW Ashcroft PHDQGDQDFWUHSXJQDQWWR DEXVHRIFKLOGUHQ´ HWKHLQWHUHVWVRIUHDOFKLOGUHQ However, However, 117 [Vol. 55:311 55:311 [Vol. In recent years, circuit recent courts In years, have 122 ´ and this specific provision of the CPPA of provision specific and this Therefore, virtual child pornography fell fell child pornography virtual Therefore, In other words, words, other In 111 118 Ferber 6HFRQG ³YLUWXDO FKLOG SRUQRJUDSK\ ZKHWV WKH Ferber 112 114 123 TULSA LAW REVIEW LAW TULSA Third, the objective of eliminating the market for child child eliminating for the of market objective Third, the ) 2/18/2020 ) 6:57 AM 115 ELETE D OT stated that the stated statute that bannedof that substantial a materials amount WKDWDQLGHQWLILDEOHPLQRULVHQJDJLQJLQVH[XDOO\H[SOLFLWFRQ N O RSKLOHV´ 45. 45. did, in dicta, mention morphed child pornography. The The child pornography. morphed dicta, mention did, in ± 119 &RXUW¶VFRQVWLWXWLRQDOUHDVRQLQJ , 535 U.S.254. at , 535 U.S.250, at 256. , 535 U.S.242. at , Shoemaker v. Taylor, 730 F.3d778,787 (9th Cir.2013); Doe v. Boland,698 F.3d 877, 883 (6th appear Ashcroft at 244 at 254. at 253. at 251. at 250. at 250. at 242. at 250. 109 ,C-FINAL(D Ferber Ashcroft Even Even though the CourtSupreme disagreed, the government contended strongly that . Ashcroft . Id. . Id. . Id. . Id. . Id. . Ashcroft . Id. . Id. . Ashcroft e.g. . See, . Id. . Id. WLI\ODZVVXSSUHVVLQJSURWHFWHGVSHHFK´ EACHAM 117 118 116 115 114 110 112 113 109 122 123 120 119 ruled on section 2256(8)(D) of the CPPA, which defined virtual child pornography. child virtual defined which the CPPA, of 2256(8)(D) section on ruled EHWZHHQYLUWXDOFKLOGSRUQRJUDSK\DQGWKHKDUPRIFKLOGVH[XDO DQGLQGLUHFW´ Cir.2012); United States v. Hotaling, 634 F.3d725, 7292011); (2d Cir. United States v. Bach,400 F.3d 622, 2005). Cir. (8th 632 appetite of ped appetite of SRUQRJUDSK\ ³QHFHVVLWDWHV D SURKLELWLRQ RQ YLUWXDO LPDJHV DV ZH

ZHUHQHLWKHUREVFHQHQRU³µLQWULQVLFDOO\UHODWHG¶WRWKHVH[XDO JRYHUQPHQWDUJXHGWKDWDOORZLQJYLUWXDOFKLOGSRUQRJUDSK\³PDNH cases involving prosecute non-virtual child pornography. mined the meaning of those of words. the meaning mined 111. (1982). 759 747, U.S. 458 Ferber, v. York New images. 322 322 B short of the harm-in-production logic of of logic harm-in-production the of short and are in that sense closer to the images in However, the Court did not touch section 2256(8)(C), which prohibits morphed child child morphed prohibits which section 2256(8)(C), Court touch did not the However, SRUQRJUDSK\ E\ SURKLELWLQJ DQ\ ³YLVXDO GHSLFWLRQ >WKDW@ KDV EHH The discussed Court distinction this dicta, in stating that images of real children edited so WKDWWKHFKLOGUHQDSSHDUWREHHQJDJHGLQVH[XDODFWV³LPSOLFDW modified to modified E\ SHGRSKLOHV WR ³VHGXFH FKLOGUHQ´ connection between child pornography and the of children abuse sexual and of bedrock the the pornography child between was connection the of 121. added). (emphasis 2256(8)(C) § U.S.C. 18 WKDWZKLOH³>W@KHVH[XDODEXVHRIDFKLOGLVDPRVWVHULRXVFUL itself does . by not . . crime prospect of . [t]he a decent instinctsthe of moral people[,]. . jus virtual child pornography was worthy of inclusion in law. in federal inclusion of worthy was pornography child virtual was held to be unconstitutionallywas held broad. 42010-tul_55-2 Sheet No. 87 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 87 42010-tul_55-2 42010-tul_55-2 Sheet No. 88 Side A 03/03/2020 13:59:43  , HDO Ashcroft United States v. United States v. on the placed was face However, even though this this even though However, 130 323 323 The defendant, relying on on The relying defendant, child pornography by superimposing by superimposing pornography child ). ). ´ OSIS 126 Disagreeing, the court applied the words Disagreeing, the court applied the words ²FKLOGKDUPHGDQG³YLFWLPL]HGHYHU\WLPH 127 , the defendant defendant was charged the possession , with 30 (2d Cir.2011). ± sitting in a tree in a lascivious pose a with full One of overlaid the photos of the a face young MORPH Bach actual 135 ² In In META 124 6RPH RI WKH YLFWLPV ZHUH IULHQGV ZLWK WKH GHIHQGDQW¶V , the Eighth Circuit consideredEighth , the constitutionality the of 136 7KHUHIRUHWKHFKLOGZDVD³YLFWLPRIVH[XDOH[SORLWDWLRQ´DQG ) 2/18/2020 ) 6:57 AM LW SURWHFWHG WKH FKLOG¶V ³SK\VLFDO DQG SV\FKRORJLFDO ZHOO [S]uch visual depiction has been created, adapted, or modified to appear that that appear to modified or adapted, created, been has depiction visual [S]uch ³ DQGGHWHUPLQHGWKDWWKLVLPDJH³LPSOLFDWHVWKHLQWHUHVWVRIDU 7KHFKLOGSRUQRJUDSK\LQTXHVWLRQZDVDQLPDJHZKHUHWKH³KHDG 132 ELETE D 128 125 OT N O Here, the defendant created morphed defendant created morphed Here, the The defendant contended that no child was harmed in the production of the the of harmed production contended the child defendant no The in that was , 400 F.3d at632. , 400 F.3d at630. 134 137 United States v. Bach States United . Even though the well-known child was not actually involved in the production production the in involved actually not child the well-known was though Even at 727. at 630. at 632. at 625. 133 ,C-FINAL(D 129 In In The image depicted the child in a sexual manner because his face was pasted onto pasted onto because his a sexual face depictedwas child in Themanner the image 7KH 6HFRQG &LUFXLW DGRSWHG WKH (LJKWK &LUFXLW¶V UHDVRQLQJ LQ 131 M K . Id. . Id. . Id. . Id. . Bach . Id. . Id. . Id. . Id. . Id. . Id. . Bach . Id. C Y EACHAM 136 137 135 129 130 131 132 133 127 126 124 125 WKHSLFWXUHLVGLVSOD\HG´ of a well known juvenile . . . was skillfully inserted onto the body of the nude boy so that boy nude the of body the skillfullywas inserted onto . . juvenile . known a of well [the in engaging of juvenile] picture known be a appear[ed]well depiction resulting to the VH[XDOO\H[SOLFLWFRQGXFWZLWKDNQRZLQJJULQ´ section 2256(8)(C) of the CPPPA incorporating morphed child pornography affirmed was pornography child morphed incorporating the CPPPA of 2256(8)(C) section becauseas constitutional EHLQJ´ an identifiable minor is engaging in sexually explicit conduct. explicit sexually in is engaging minor identifiable an 134. 729 725, F.3d 634 Hotaling, v. States United image image different than the previously-mentionedslightly was examples child of morphed court the body) adult an not was photo editing the used in body the (because pornography thatdetermined the interests implicated of the childwere whose body. 128. ( 2256(8)(C) § U.S.C. 18 photos of the of of six differentfaces photos the bodies adult onto girls young of nude females engaged in sexually explicit conduct. of child pornography. child of D. The Federal Circuit Courts and the Harms Caused by Morphed Child Pornography Child Morphed by Caused Harms the and Courts Circuit Federal The D. CPPA. the of 2256(8)(C) section of section 2256(8)(C) section of daughter. 2020] 2020] B of the image, he image, he the anof identifiablewas

argued that the did argued image a thenot abuse involve of real and therefore minor morphed images should be included not the statute. in ³D\RXQJQXGHER\ZKRLVJULQQLQJDQG HUHFWLRQ KLV OHJV VSUHDG DQG KLV SHOYLV WLOWHG XSZDUG´ FKLOG´ girl onto a partially adult onto nude a collargirl female shackled, and wearing who handcuffed, was and tied to aleash, dresser. Hotaling 42010-tul_55-2 Sheet No. 88 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 88 42010-tul_55-2 42010-tul_55-2 Sheet No. 88 Side B 03/03/2020 13:59:43 ² M K . C Y stated stated Hotaling Hotaling Hotaling Ferber Shoemaker Therefore, Therefore, stated that 140 148 court held that courtthat held Shoemaker Court left the issue Hotaling HUHVW 147 However, the the However, , the harms discussed, the in \³GLUHFWO\LPSOLFDWHWKH UFXODWLRQ´ FWLRQVEHWZHHQWKHDFWXDO VW LQ ³VDIHJXDUGLQJ WKH Hotaling 138 QRIFKLOGSRUQRJUDSK\EXW Ashcroft court explicitly distinguished court distinguished explicitly Ferber The The LWLV³DSHUPDQHQWUHFRUGRIWKH 142 definition of harm, the the harm, of definition [Vol. 55:311 55:311 [Vol. 141 Hotaling Ferber Furthermore, the real names of the young of the young the real names Furthermore, The The reputational, emotional, and psychological and reputational, emotional, 143 ² 144 HQXGHERGLHVZHUHDGXOW WKH³RQO\UHFRJQL]DEOH QGXFW´ Stretching the the Stretching . . were at risk of reputational harm and suffered the and suffered harm reputational of at risk were . . implicate such interests. implicate TULSA LAW REVIEW LAW TULSA EHLQJRIDPLQRU´DQGWKH³SUHYHQWLRQRIVH[XDOH[SORLWDWLRQ 139 , the Ninth Circuit noted that the does ) 2/18/2020 ) 6:57 AM . . The Court. The further noted actual child is that pornography . [w]e agree with the Eighth Circuit that the interests of actual minors are implicated implicated are minors actual of interests the that Circuit Eighth the with agree [w]e As a result, both the Eighth and Second and the Eighth both Circuits a result, categorized As ELETE ³ D 146 OT N O DWUXVWHGDGXOW´ reasoned that th that reasoned while 30 (stating, ± , 634 F.3d at730. , 634 F.3d at730. However, while relying on the precedent of on precedent of the relying However, while ). ). ´ were tweaked slightly from logic. the from harm-in-production tweaked slightly were 145 at 786. at 730. at 728. Shoemaker v. Taylor at 729 at 729. ,C-FINAL(D In In Hotaling VWRISURWHFWLQJFKLOGUHQIURPKDUP´ZKLFKLVDFRPSHOOLQJLQW . Id. . Id. . Id. . Hotaling . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Hotaling Morphed images of childrenMorphed implicate directly images in the activity engaged interest sexual of protecting harm, an children from interest Court the deemed Supreme compelling in 7KHUH WKH &RXUW H[SODLQHG WKDW VWDWHV well- psychological and KDYHphysical D FRPSHOOLQJ LQWHUH DQG DEXVH RI FKLOGUHQ´  ³LQWULQVLFDOO\UHODWHGWRWKHVH[XDODEXVHRIFKLOGUHQ´EHFDXVH EACHAM 146 148 145 144 143 142 141 140 138 139 147. 2013). Cir. (9th 787 778, F.3d 730 Taylor, v. Shoemaker when their faces are usedin creating morphedimages thatmake itappear that they are performing sexually acts explicit FRXUWQRWHGWKDW³PLQRUVDUHKDUPHGQRWRQO\GXULQJWKHFUHDWLR DUHDOVRKDXQWHGIRU\HDUVE\WKHNQRZOHGJHRILWVFRQWLQXHGFL these morphed images from virtual child pornography because of because images of the connection to actual these childfrom virtual pornography morphed children. Hotaling morphed child pornography pornography child morphed

photos, which were created only to record his mental fantasies. his mental record to only created were photos, which 324 324 B court held that morphed child pornography was rightly included in federal law because law the federal included in rightly that was child held court morphed pornography ³VL[ LGHQWLILDEOH PLQRU IHPDOHV  theirimages of harm that knowing psychological were prepared and exploited for by distribution explained as follows: morphed child pornography within the terms found in section 2256(8)(C) of the and the CPPA of in pornography terms the child section 2256(8)(C) found within morphed the protectionsFirst of the Amendment. The join. Circuit outside Ninth soon would WKDWSURVFULELQJWKHVHW\SHVRILPDJHVLVQHFHVVDU\EHFDXVHWKH intere of morphed child pornography and the First unresolved. and the Amendment child pornography of morphed SHUVRQV>LQWKHSKRWRV@ZHUHWKHPLQRUV´ the primarythe inquiry regardingdefinition the of child pornographyis whether or not the LPDJH ³LPSOLFDWHV WKH LQWHUHVWV RI DQ DFWXDO PLQRU´ JLUOVZHUHLQFOXGHGRQPDQ\RIWKHLPDJHV³EROVWHULQJWKHFRQQH minor and the sexually explicitminor and the co are trigged the a the a child cuts and pastes image into moment of a childare trigged the pornographer image. pornographic the harms associated with morphed images morphed with associated harms the 42010-tul_55-2 Sheet No. 88 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 88 42010-tul_55-2 42010-tul_55-2 Sheet No. 89 Side A 03/03/2020 13:59:43 152 not 150 Because Because to protect to protect 149 154 However, the the However, court referenced court referenced 157 LQLWLDOSXEOLFDWLRQRI Boland SULYDF\DQGUHSXWDWLRQDO 57, 759 (1982)). 759 (1982)). 57, GSRUQRJUDSK\² ± HUO\LQJDEXVH´ HGE\>LWV@FLUFXODWLRQ´ In one, the defendant edited an defendant edited an one, the In 325 325 151 Initially the is particularly insightful. The insightful. morphed is particularly OSIS 153 reasoning explains reasoning the why Secondand Eighth MORPH 158 PORNOGRAPHY Doe v. Boland Ferber n META The defendant argued that the psychological harm implicated the psychological The that argued defendant implicated harm ) 2/18/2020 ) 6:57 AM , 458 U.S. at 759). 156 ELETE D Ferber concluded that the children in morphed child pornography are rightly are rightly the children child concluded in that pornography morphed OT N O court noted that the court noted the that 87. 87. Boland ± , 698 F.3d at 883. at 883. , 698 F.3d OKLAHOMA LAW DANGEROUSLY IGNORES MORPHED CHILD 155 (emphasis added) (quoting New York v. Ferber, 458 U.S. 747, 756 747, U.S. 458 Ferber, v. York New (quoting added) (emphasis ´ at 786 at 883 (quoting at 884. at 884 (quoting Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121(1)(7), 110 110 121(1)(7), § 104-208, No. L. Pub. 1996, of Act Prevention Pornography Child (quoting 884 at FRXUWUHMHFWHGWKLVDUJXPHQWVWDWLQJWKDW³>W@KHFUHDWLRQDQG ,C-FINAL(D IV. In view of the federal holdings, it is clear that morphed child pornography falls child pornography morphed it is clear that holdings, federal of the view In 7KH6L[WK&LUFXLW¶VGHFLVLRQL M K Shoemaker . Id. . Id. . Id. . Id. . Boland . Id. . Id. . Id. . Id. . Id. FKLOGUHQ¶VSDUWLFLSDWLRQDQGWKHKDUPWRWKHFKLOGLVH[DFHUEDW C Y EACHAM 149 150 158 156 157 152 153 154 155 FKLOGUHQIURPDEXVHWKDWLV³µLQWULQVLFDOO\UHODWHG¶WRWKHXQG child pornography discussed almost indifferent examples this case is identicalchild pornography two to the discussed. previously pornography child morphed of by morphed child pornography only only materializes or if the child child becomes pornography when victim by morphed image. the viewing that upon harm experiences and photo the of aware innocent photo of a child eating a donut, replacing the donut with a picture of a penis. of a picture donut with replacing the a donut, a child of eating photo innocent WKH&33$WDUJHWVPRUSKHGLPDJHVDVDQLQYDVLRQRIWKH³FKLOG¶V interests FRQVLGHUHG³UHDOYLFWLPV´ WKH³VWUDLJKWIRUZDUG´UDWLRQDOHEHKLQGWKHSURVFULSWLRQRIFKLO The The 2020] 2020] B WKHLPDJHVLWVHOIKDUPHGWKH>FKLOGUHQ@´ Circuits also consider morphed child pornography not only only not within Circuits definition also consider the statutory child pornography morphed First protections. outside Amendment also but CPPA the of 2256(8)(C) section of Boland In another photo, the defendant placed the face of another child onto a photo of a another a of nude child onto of photo the placed defendant the face photo, another In woman engaging in sex acts with two other men.

outside Firstoutside by protectionAmendment federal and courts Federal law. is prohibited have as such images the to view triggering justification harmful, consistently supplied ample and children. law state However, federal of interest between differences to protect the need is requiresimilarly if a separate child analysislaw morphed pornography to determine addressed state level. at the In other words, while the exposedfederal has government the states morphed of to incorporate responsibility it is the child pornography, morphed different the utilizes This section pornography. child their of chosen definitions in images is likely show to interpretation childthat statutory morphed pornography tools of Oklahoma law. by prohibited Stat. 3009 (codified as amended at 18 U.S.C. § 2256). 151. 2012). Cir. (6th 879 877, F.3d 698 Boland, v. Doe 42010-tul_55-2 Sheet No. 89 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 89 42010-tul_55-2 42010-tul_55-2 Sheet No. 89 Side B 03/03/2020 13:59:43 M K C Y These These 160 modified to to modified GXFW´ 7KHZRUGV³DQ\YLVXDO of engaging in sexual in engaging of 162 ULQGLYLGXDOLPDJHVWRUHG WVWDWXWHVPXVW³EHFRQVWUXHG [Vol. 55:311 55:311 [Vol. appearance s been created,s been adapted, or Therefore, a thorough explanation of the RPD¶V FKRVHQ ODQJXDJH $GGLWLRQDOO\ WKH 161 159 TULSA LAW REVIEW LAW TULSA Do these words refer to actual engagement in sexual engagement sexual to actual Do in refer these words 163 ) 2/18/2020 ) 6:57 AM ELETE D OT N O . tit. 21, § 1024.1(A) (emphasis added). . added). (emphasis 1024.1(A) § 21, tit. . 1024.1(A). § 21, tit. TAT TAT .S .S WKDW DQ LGHQWLILDEOH PLQRU LV HQJDJLQJ LQ VH[XDOO\ H[SOLFLW FRQ KLA KLA ,C-FINAL(D While the federal language defining child pornography specifically addresses specifically child pornography language defining federal the While The Oklahoma of Court Criminal statedAppeals tha 1. The Plain Meaning . Id. ³>&@KLOGSRUQRJUDSK\´PHDQVDQGLQFOXGHVDQ\YLVXDOGHSLFWLRQR motion film, to, picture, including, on medium not limited format or any but contained in any product, photographic slide, film, undeveloped negative, photograph, videotape, age the under minor a wherein performance or play product, photographic a of reproduction of or spouse, his her than other person, a with act any in engaged is years (18) eighteen of intercourse is normalsexual which orof act in in perverted, anal any act any of sodomy, sadomasochistic act in of an activity abuse any animal, with sexual including,not limited but to, oror torture, flagellation being the of condition physically or otherwise bound fettered, act of cunnilingus, or restrained any fellatio in sexual act of conduct, of any context in the in genitals uncovered the of exhibition lewd any in conduct, sexual of context the in excretion the exhibition of lewd or the other sexual conduct, where or of thein context theuncovered breast, suchbuttocks has minor is a female, theif genitals, or, purpose of theorof viewer, whereinthe eighteen a person of under age (18) years suchobserves acts or exhibitions. EACHAM 162 activity at the time the image at is the time is captured? the Or, activity

159. O The pertinent question is whether this language includes morphed images. It this language is includes should be question images. Themorphed pertinent whether this noted language that definition in include defining found the federal statute does not FKLOGSRUQRJUDSK\DVDQ\YLVXDOGHSLFWLRQWKDW³KD A. Oklahoma’s Definition of Child Pornography Child of Definition Oklahoma’s A. Oklahoma the it appears that child pornography, morphed child statute defining SRUQRJUDSK\GRHVQRW2NODKRPD¶VGHILQLWLRQLVDVIROORZV 326 326 B 160. added). (emphasis 2256(8)(C) § U.S.C. 18 161. 1999). App. Crim. (Okla. 955 949, P.2d 989 Young, v. State 163. O depiction or individual image . . . wherein a minor . . . is engaged in any act . . . of sexual . of act . any . . is engaged in a . . image minor . wherein .. or individual depiction LQWHUFRXUVH´ DUH VLJQLILFDQW language, legislativelanguage, intent, and other in be construingstate interpretations will helpful 2NODKRPD¶VGHILQLWLRQRIFKLOGSRUQRJUDSK\ DFFRUGLQJWRWKHSODLQDQGRUGLQDU\PHDQLQJRIWKHLUODQJXDJH´ differences between the differences and Oklahomafederal statutes eliminate the possibility leaning of to interpret Oklah the federal on meaning Oklahoma ofCourt Criminal offers sparse Appeals inhelp because itinterpretation has not decided a case involvingyet these specific images. However, court the a outlined of principles to facilitate the number work of statutory including: interpretation, legislative the toward the language, looking of plainmeaning and ordinary the interpreting the and staying within interpretation, a consistent for provisions reconciling intent, established the legislature. by boundaries appear 42010-tul_55-2 Sheet No. 89 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 89 42010-tul_55-2 42010-tul_55-2 Sheet No. 90 Side A 03/03/2020 13:59:43 170 164 WXWHZRXOG These two These two of the image. the of 169 certainly do not WKHVWDWXWHFRXOG ² YHGLQDFWLYLW\´ content LOGSRUQRJUDSK\ODZV O\DGGLWLRQDOPHDQLQJ ILQLWLRQ LYH XQGHYHORSHG ILOP VHGDVDQRXQLQWKHOLVWRI 2NODKRPD¶V FULPLQDO FRGH , not the the , not DLQUHDGLQJRI2NODKRPD¶VVWDWXWH 327 327 image ´ WKH VWDWXWH OLVWV VHYHUDO TXDOLILHG , Plainly speaking, morphed child child speaking, morphed Plainly OSIS 166 ,QRWKHUZRUGV³GHSLFWLRQ´LVQRWXVHGDV as though the child is engaged in sexual sexual in engaged is child the as though 168 appear MORPH to be engaged in sexual activity at the time the QJWKHSKUDVH³PRGLILHGWRDSSHDU´LQWKHIHGHUDO SRUQRJUDSK\IURP2NODKRPD¶VGHILQLWLRQ ² of sexual activity. However, the syntax of the statute the syntaxof the However, activity. sexual of META ) 2/18/2020 ) 6:57 AM VGHILQHGLVWR³SUHYHQWWKHVH[XDOH[SORLWDWLRQRIPLQRUV´ engagement in sexual activity or lewd nudity depiction ELETE ² D OT 7KHUHIRUH RQO\ WKH ZRUG ³HQJDJHG´ LV SURYLGHG WR VXSSO\ WKH N O . 1024.1(A). § 21, tit. 167 :LWKRXWWKLVTXDOLILFDWLRQWKHSODLQPHDQLQJRI2NODKRPD¶VVWD , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/engaged (last (last https://www.merriam-webster.com/dictionary/engaged Dictionary, Merriam-Webster , TAT .S 165 not merely an apparentnot childmerely KLA ,C-FINAL(D PDQFH´ The legislative purpose undergirding chapter of undergirding 39 purpose The legislative 7KHZRUG³HQJDJHG´LVGHILQHGE\:HEVWHU¶VGLFWLRQDU\DV³LQYRO Leaning upon the plain words of the statute, Oklahoma an actual requires statute, the law of plain words the upon Leaning +RZHYHUWKHZRUGV³DQ\YLVXDOGHSLFWLRQ´QHDUWKHEHJLQQLQJRI 2. The and2. Legislative Intent Boundaries ² M K . Engaged . Id. . Id. . Id. C Y UHFWO\ IROORZLQJ WKH ZRUGV ³DQ\ YLVXDO GHSLFWLRQ EACHAM 164 168 169 167 where child pornography i child pornography where Di GHSLFWLRQV ³ILOP PRWLRQ SLFWXUH YLGHRWDSH SKRWRJUDSK QHJDW or play product, a photographic of product, reproduction slide, photographic perfor visited Jan. 21, 2019). 165. § 2256(8)(C). 18 U.S.C. 166. O include morphed child pornography. As a result, the pl the As a result, pornography. child morphed include would not include images of actual and clothed children morphed to make it appear as it appear and clothed as children of actual include images not to make would morphed activity. in sexual are engaging they though possible qualifications DQDGMHFWLYHWRPRGLI\³VH[XDOLQWHUFRXUVH´EXWUDWKHULWLVX child visual images that contain childvisual pornography. activity via manipulation also via interpretationactivity leads manipulation plain included? the to former A excluding child morphed conclusion, image istaken image to qualify is as childAs pornography. common, Oklahoma also includes WKH ³OHZG H[KLELWLRQ RI WKH XQFRYHUHG JHQLWDOV´ ODWHU LQ LWV GH relationship between the child between relationship image. and the 2020] 2020] B pornography is a visual UHYHDOVWKDWWKHZRUG³GHSLFWLRQ´GHVFULEHVWKHW\SHRI

Unfortunately, this rationale is too broad to be helpful when interpreting the definition of the definition interpreting when to be helpful rationale isthis too broad Unfortunately, of in light Withoutchild pornography images. morphed a specific legislative statement, it plain the than rendered by statute differently the of the words to interpret is challenging PHDQLQJ$ORRNLQWRWKHFKDQJHVRI2NODKRPD¶VREVFHQLW\DQGFK However, morphed images only make it make only images morphed However, 170. 2014). App. Crim. (Okla. 1217 1212, P.3d 328 State, v. Arganbright exclude pornography. child morphed be understood to include morphed images. morphed to include be understood activity. As a result, it is correct to say that the children in morphed child pornography are that children is correct it pornography child the to say in a result, morphed activity. As of plain meaning the intercourse. Therefore, sexual activity of the in involved not ³HQJDJHG´GHVFULEHVDFWXDOLQYROYHPHQWXQOHVVRWKHUZRUGVVXSS inserti does thisThe statute federal by definition. 42010-tul_55-2 Sheet No. 90 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 90 42010-tul_55-2 42010-tul_55-2 Sheet No. 90 Side B 03/03/2020 13:59:43 54 54 ± 175 M K C Y While While 174 . § 1024.1(A). 21, tit. Interestingly, at the at the Interestingly, TAT HOHJLVODWLYHKLVWRU\RI .S 172 VWDWXWHGHILQHGREVFHQH \ RIIHQVLYH´ KLA O WGHILQHGE\WKDWVWDWXWH´ LVODWXUHFKRVHQRWWRDGGUHVV with with . 1024.1). § 21, tit. LQFOXGHGLQWKHUHVSHFWLYHVWDWH¶V [Vol. 55:311 55:311 [Vol. The current language mirrors the The the language current mirrors TAT portrayed, depicted, or represented depicted, or portrayed, not Remarkably, this older obscenity this older obscenity Remarkably, .S 171 173 In the three state cases discussed below, state cases discussed three the below, In 57 (N.H. 2008). 2008). (N.H. 57 KLA ± 176 TULSA LAW REVIEW LAW TULSA borrow this Furthermore,language. Oklahoma legislature borrow the PRUSKHGFKLOGSRUQRJUDSK\LQ2NODKRPD¶VREVFHQLW\VWDWXWH ) 2/18/2020 ) 6:57 AM not KDWLQWHUSUHWLQJ2NODKRPD¶VGHILQLWLRQRIFKLOGSRUQRJUDSK\WR . tit. 21, § 1024.1 (2000) (amended 2012), ELETE D TAT OT People v. Gerber N .S O . tit. 21, § 1021.3 (2000) (emphasis added) (amended 2012). 2012). (amended .added) (emphasis (2000) 1021.3 § 21, tit. . 1024.1(B)(1)(a). § 21, tit. KLA O TAT TAT , People v. Gerber, 196 Cal. App. 4th 368, 386 (2011); Parker v. State, 81 So. 3d 451, 453 451, 3d So. 81 State, v. Parker , (2011); 386 368, 4th App. Cal. 196 Gerber, v. People .S .S KLA KLA ,C-FINAL(D In 2000, the Oklahoma legislature added child pornography to the criminal code, code, criminal to the pornography added child legislature Oklahoma the 2000, In Unlike Oklahoma, stateUnlike other have courts child pornography their interpreted In 2008 a California father, Gerber, exposed his thirteen-year-old daughter, J., to to J., thirteen-year-old daughter, his Gerber, exposed father, California a 2008 In Furthermore, the OklahomaFurthermore, of Court Criminal statedAppeals that it is not 1. California: 1. California: . Compare . Compare . See, e.g. . See, EACHAM 172 176 has removed this language from the current definition of obscene materials, only including only obscene materials, of the current definition from language this removed has ³GHSLFWLRQV RU GHVFULSWLRQV RI VH[XDO FRQGXFW ZKLFK DUH SDWHQWO of the past. However, when adding child pornography to the criminal code in 2000, the the 2000, in code to the criminal pornography child adding However, past. when the of Oklahoma legislature did language appearslanguage to include 171. O 2000at as amended (codified 795 Laws Sess. Okla. provides some insight some provides the into of current definition. the words provisions. theobscenity from separateand distinct 328 328 B 2000 definition, although some minor alterations have been been made. have alterations minor some although definition, 2000 174. O 175. 1999). App. Crim. (Okla. 955 949, P.2d 989 Young, v. State statutes in light of morphed child pornography. of morphed light statutes in &RQVLGHULQJERWKWKHSODLQPHDQLQJRIWKHZRUG³HQJDJHG´DQGWK the statute, itthe is evident t putting interpretation, statutory of principles the violate images would morphed include ZRUGVLQWRWKHPRXWKRI2NODKRPD¶V/HJLVODWXUH Pornography Child D. Other States and Morphed the courts found that morphed child pornography was was child pornography that morphed courts the found DV HQJDJLQJ LQ DQ\ DFW RI VH[XDO LQWHUFRXUVH´ WLPHZKHQWKLVFKDQJHZDVXQGHUWDNHQ2NODKRPD¶VROGREVFHQLW\ PDWHULDOVDVWKRVH³ZKHUHLQWKHPLQRULVHQJDJHGLQRU 173. O statutory definition of child pornography. of definition statutory even if . . enlargenot a court] [The produce result. interpretation will reasonable might . the WKHPHDQLQJRIZRUGVLQFOXGHGLQDVWDWXWHWRFUHDWHDFULPHQR morphed child pornography might fall within this current obscenity definition, the this the fall definition, within current might obscenity pornography child morphed these inclusion history is likely an to support legislative of not images in the child the use 2000, did not most crafted in definition, The current definition. when pornography definition. As a old is only the and clear language, obscenity in descriptive which found the legislativeresult, indicateshistory an intentional either incorporating away from move unrealized and unintended the had that a choice or child pornography, morphed distancing law. Oklahoma from morphed of childconsequence pornography DSSURSULDWHWR³LQWHUSUHWDVWDWXWHWRDGGUHVVDPDWWHUWKH/HJ (Fla. Dist. Ct.2011); App. State v. Zidel, 940 A.2d255,256 42010-tul_55-2 Sheet No. 90 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 90 42010-tul_55-2 42010-tul_55-2 Sheet No. 91 Side A 03/03/2020 13:59:43 185 Gerber Gerber Instead, Instead, G WR KDYH 188 The father The father 195 186 HJLVODWLYHKLVWRU\ PSXWHU She was crying. She was WKHUHE\ UHYHUVLQJ WKH 184 VKHRZHGKLPSLFWXUHV This morphed child HG WKDW PRUSKHG FKLOG court disagreed with the court disagreed the with LQFRUSRUDWHVWKHPRUSKHG 189 DJLQJLQRUVLPXODWLQJVH[XDO 191 He reassured her that this was that this her He reassured was Because of the plain definition definition the plain of Because Gerber , the California Court of Appeals California of, the Court Appeals 180 196 329 329 The The She was uncomfortable, because he he because uncomfortable, She was OSIS 194 179 MORPH People v. Gerber J. agreed. J. In In META 72. ± 178 190 ) 2/18/2020 ) 6:57 AM 5HDOL]LQJ VKH ZDV ³FDXJKW LQ WKH PLGGOH RI D VLWXDWLRQ´ VKH ELETE D After introducing her to cocaine, he offered her more cocaine if she she if cocaine offered he her more cocaine, to her introducing After § 311.11(a). 182 OT 181 N 177 court addressed whether the morphed child pornography violated violated child addressed court the pornography morphed whether The relevant California statute defined child pornography as an image as an image childrelevant California statute The defined pornography O ODE C KH FRXUW KHOG WKDW WKH &DOLIRUQLD VWDWXWH ³UHTXLUHV D UHDO FKLO 192 187 He took various photos of J. in her bra and underwear. and bra her in J. of photos various He took T , 196 Cal. App. 4th at 382. at 382. 4th App. Cal. , 196 , 196 Cal. App. 4th at 376. at 376. 4th App. Cal. , 196 , 196 Cal. App. 4th at 375. at 375. 4th App. Cal. , 196 , 196 Cal. App. 4th at 4th at 371 App. Cal. , 196 , 196 Cal. App. 4th at 373, 374. 374. at 373, 4th App. Cal. , 196 ENAL ENAL Gerber 183 193 .P at 378. at 376. at 375. at 386. at 377. at 378. IRFXVHGRQSODLQLQWHUSUHWDWLRQRIWKHZRUG³SHUVRQDOO\´WKHO AL ,C-FINAL(D Id. Gerber Id. $IWHUWKHIDWKHUDQGGDXJKWHUVQRUWHGFRFDLQHKHVWDWHGWKDW³ 3ROLFHUHFRYHUHGVHYHQSRUQRJUDSKLFSKRWRVIURPWKHIDWKHU¶VFR Id. The The M K . Gerber . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Gerber . Id. . Id. . Id. . Gerber . Gerber . Id. C Y EACHAM 192 191 188 189 186 179 180 181 182 183 184 195 194 177 178 193. C 190. 187. 185. photos because the photos do depict J. child engaged in the as sexual the because photos photos conduct. SURVHFXWLRQ¶V DUJXPHQWWKDWWKHZRUG³GHSLFW´LQWKHGHILQLWLRQ reversed the conviction for possession of child pornography. of possession convictionreversed for the pornography, and not the photos of his daughter in her bra and underwear, were the focus the focus were underwear, bra and her in daughter his of photos the not and pornography, case the and criminalof charge. Gerber differently. implications to hold constitutional the and instructed her to lean over, lean over, to instructedwhich cleavage. her revealed her FRQGXFW´ WKDW³GHSLFWVDSHUVRQXQGHUWKHDJHRI\HDUVSHUVRQDOO\HQJ SKRWRJUDSKLF³DUW´ alcohol and drugs. alcoholand 196. 2020] 2020] B complied. LQ>KHU@XQGHUZHDU´ Later that about told and she Later photos. night the alcohol, drugs, her mother RI ³SHUVRQDOO\´ DQG WKH OHJLVODWLYH KLVWRU\ WKH FRXUW GHWHUPLQ admitted to using Paint to alter pornographic pictures of to pictures Paint Microsoft admitted of to alter women collected had using pornographic he E\ UHSODFLQJ WKH ZRPHQ¶V IDFHV ZLWK KLV GDXJKWHU¶V IDFH wasarrested. would pose for a few photos. a few for pose would DFWXDOO\ HQJDJHG LQ RU VLPXODWHG WKH VH[XDO possession of for child pornography. conviction FRQGXFW GHSLFWHG´ California law. 42010-tul_55-2 Sheet No. 91 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 91 42010-tul_55-2 42010-tul_55-2 Sheet No. 91 Side B 03/03/2020 13:59:43 d 203 M K , the , the C Y Parker While this While this 209 210 He was charged He was SHDOV RI )ORULGD G´ 207 Parker v. State 204 LVQHLWKHUREVFHQHQRU HQJDJHGLQWKHVH[XDO LIRUQLD VWDWXWH VDULO\LQYROYHVH[XDO HVVLRQRIPRUSKHGFKLO unlike the federal circuit the circuit federal unlike HSURFHHGV´ 51 (2002)). ² ± SODFHDQDGXOW¶VKHDGZLWKD decision. [Vol. 55:311 55:311 [Vol. However, in However, in Gerber from the causedharm by morphed Gerber 208 199 . ³ZDVEDVHGXSRQKRZ>FKLOGSRUQRJUDSK\@ 197 Ferber . § . 827.071(5)(a)) TAT Ashcroft Ferber .S LA TULSA LAW REVIEW LAW TULSA . . . representation . in whole which, presentation . or other 202 noted that note 104, at 229, 231. ,QWHUHVWLQJO\WKHFRXUWH[WLQJXLVKHG³DQ\OLQJHULQJGRXEWV´ ) 2/18/2020 ) 6:57 AM supra 198 § 311.11(a). ELETE D Gerber ODE :KLOH WKH SKRWRV ZHUH QRUPDO SKRWRV ³WKH LQQRFHQFH WXUQHG OT C N 200 O Yamada, Therefore, the California Court stated: of Therefore, the Appeals Parker v. State Parker v. State 205 , 81 So. 3d at 453 (quoting F 453 (quoting 3d at , 81 So. ENAL ENAL 201 Parker cut the heads off of the children in the photos and pasted them onto onto pasted them and photos in the the children of off heads the cut Parker leaned not only on the the Californiaon on also leaned plain only of statute, not but meaning narrowed its defined narrowed to childfocus that applicable statute the Florida .P , 196 Cal App. 4th at 383. at 383. 4th Cal App. , 196 AL 206 C at 385 (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 250 234, U.S. 535 Coal., Speech Free v. Ashcroft (quoting 385 at distinguished described the harm in generated calls for the amendment of California child pornography law. of theCalifornia amendment generated calls for pornography child at 386. at 386. at 383. at 371. ,C-FINAL(D ² ,Q WKH VDPH \HDU DV *HUEHU¶V GHFLVLRQ WKH 'LVWULFW &RXUW RI $S Parker Gerber See Parker See 2. Florida: . See . See generally generally . See . Id. . Id. . Id. . Gerber . Id. . Id. . Id. . Id. . Id. . Id. . Id. Q SDUW KH RU VKH NQRZV WR LQFOXGH DQ\ VH[XDO FRQGXFW E\ D FKLO [T]hat the both articulated rationales underlying thedecisions[Ashcroft] Ferber and compel the are closer conclusion alteredpornography materials such to that child than virtual real to FKLOGSRUQRJUDSK\VLQFHWKHXVHRISKRWRHGLWLQJVRIWZDUHWRUH FKLOG¶V KHDG RQ SRUQRJUDSKLF LPDJHV RIexploitationan of actual child. WKH DGXOW GRHV QRW QHFHV EACHAM 204 203 201 202 199 200 198 197 206 207 208 209 child pornography. courts SHUYHUVH´ constitutional principles. the bodies of nude, or partially engagednude, sexual in or partially activity. women nude, bodies of the ZDVPDGHQRWRQZKDWLWFRPPXQLFDWHG´DQGWKDW³VSHHFK>ZKLFK@ of . does outside thefall First protection not the . sexual of product abusethe . $PHQGPHQW´ 205. 2011). App. Ct. Dist. (Fla. 452 451, 3d So. 81 State, v. Parker about this interpretation by relying on on relying by interpretation this about Gerber pornography was not banned by California law. California bannedby not was pornography 330 330 B and convicted of possessionand convicted of child pornography. of GHILQLWLRQ GRHV QRW FRQWDLQ WKH ZRUG ³SHUVRQDOO\´ OLNH WKH &DO 210. However, the current statute is the However, since the unchanged published a similar opinion. The defendant, Parker, a Sunday school teacher, photographed photographed a Sunday Parker, school teacher, defendant, The a similar opinion. published children.many or i SRUQRJUDSK\DV³DSKRWRJUDSK 'LVWULFW&RXUWRI$SSHDOUHYHUVHGUHDVRQLQJWKDW3DUNHU¶VSRVV SRUQRJUDSK\³HVFDSHVWKHJUDVSRIWKHVWDWXWHRQZKLFKWKH6WDW FRQFOXGHGWKDWWKHPRUSKHGLPDJHV³OHDYHQRGRXEWWKDWQRFKLOG 42010-tul_55-2 Sheet No. 91 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 91 42010-tul_55-2 42010-tul_55-2 Sheet No. 92 Side A 03/03/2020 13:59:43 , 223 Bach , craft , craft 212 The court The court 213 court held that court held that ornography. SRUQRJUDSK\WKH 219 included in the state Parker not HSRVVHVVLRQRIWKHW\SHV and perhaps should and perhaps noted that if the Florida the Florida if noted that 224 EHWKDWRIDFKLOG´ In its emphasis on federal its emphasis federal on In VWDWHGWKDW³QRGHPRQVWUDEOH 222 Parker Zidel 331 331 pointed out that the title of the statute statute the title of the that out pointed OSIS However, unlike the previous cases from previous unlike the cases from However, However, However, Parker indicates that other state courts will handcuff other that state courts indicates handcuff will 220 216 Disagreeing with the Eighth Circuit in Circuit theEighth with Disagreeing 214 MORPH court alsofocused thelegislative on intent behind 221  LV GHSLFWHG´ LQ PRUSKHG FKLOG S Parker Like California, the legislature of Florida has not legislature California, Florida has the not Like of cision. 218 court focused primarily on the constitutional issues the on court focused primarily META Parker Zidel ) 2/18/2020 ) 6:57 AM Therefore, Therefore, State v. Zidel ELETE 215 217 D the Supreme the Supreme of New HampshireCourt reversed a conviction thefor ´ OT N O . § 827.071(5)(a). Restrained the by the wordslegislature, Florida of the , 813d So. at455. TAT 211 .S at 454. at 453. State v. Zidel at457 (emphasis added). at 455. at 264. at 263. at 265. at 257. court plainly stated that the federal statutes, and their interpretation by the circuit stated statutes, by federal and their court plainly interpretation that the LA ,C-FINAL(D Bolstering itsBolstering the decision, 5HIHUHQFLQJWKH)LUVW$PHQGPHQW¶VOHJDOUHODWLRQVKLSZLWKFKLOG In In Therefore, whether states have focused on the interpretation of state statutes the states interpretation of focused on have Therefore, whether (like 3. New Hampshire:3. New held that criminalizing possession held the of morphed child pornography an was M K . Id. . Id. . Id. . Parker . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. C Y EACHAM 218 217 214 215 216 212 213 224 223 222 221 211 219. F adopted a broader definition of child pornography since this decision. this since pornography child of definition broader adopted a LV³$EXVHRI&KLOGUHQ´ FRQGXFW´ precedent, rather than on precedent, on rather than state interpretation, statutory 220. 2008). (N.H. 265 255, A.2d 940 Zidel, v. State 2020] 2020] B their decisiontheir to the state statute, statute on federal unable precedent or to rely to reach the GHFLVLRQWKDWLW ³SHUKDSVVKRXOG´ the statute, which was concerned with the sexual exploitation of children. of exploitation sexual the concerned with was statute, which the unconstitutional overstep by New Hampshireunconstitutional New by state law. overstep Zidel Therefore, because the court held morphed child pornography related intrinsically not was child pornography morphed court held because the Therefore, could children, stand. conviction abuse sexual not of the to the ³OHJLVODWXUHZDQWVWRIROORZ&RQJUHVV¶VH[DPSOHDQGSURKLELWWK it involved is] confident court can, that here, [the photographs of California and Florida, the and Florida, the California addressed at the already federal level. Parker FRXUWV ZDVRI³OLWWOHDLG´LQLWVGH quoted language from 1983 in which the legislature expressed its concern in stopping the the stopping in concern legislature its expressed the 1983 in which from language quoted ³XVHRIFKLOGUHQLQVH[XDOSHUIRUPDQFHV´ possession of morphed child possessionpornography. of morphed California and Florida) or leaned on constitutional arguments (like New New Hampshire), and Florida) (like constitutional arguments California on or leaned the trend is state courts is for child pornography that to morphed find

WKH)ORULGDVWDWXWH³UHTXLUHVWKDWWKHGHSLFWHGVH[XDOFRQGXFW harms results to the child [who] . . . child [who] harms to the results an appropriate statute 42010-tul_55-2 Sheet No. 92 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 92 42010-tul_55-2 42010-tul_55-2 Sheet No. 92 Side B 03/03/2020 13:59:43 , ± ² 226 and M K HILD C C Y EFINING EFINING R in , 230 W\SHV RI LPDJHV DV It is this connection connection It is this HDGGHGWR2NODKRPD¶V 233 DJHV´ reasoning to remove child to remove reasoning WKHSRVLWLRQWKDWPRUSKHG WLRQ´RIFKLOGSRUQRJUDSK\ VHLV³H[DFHUEDWHGE\>FKLOG Sexual Abuse Imagery: Overview Imagery: Abuse Sexual 109, 133 (Carissa Byrne Hessick ed., [Vol. 55:311 55:311 [Vol. Court also described the derivative derivative also described the Court Ferber’s But this direct harm-in-production this But direct harm-in-production 72 (2011); Parker v. State, 81 So. 3d 451,453 In fact, the connection between child the child fact, between connection In ± 231 ). ´ 229 Ferber ONSEQUENCES C LAW . The OCIAL OCIAL connected the harm-in-production to the harm-in- to the the harm-in-production connected S [t]he prevention sexual of exploitationand abusechildren of useimagery (last visited Mar. 16, 2019). 2019). 16, Mar. visited (last useimagery ³ This the plain coupledtendency, meaning with of Ferber AND AND 225 , TULSA LAW REVIEW LAW TULSA Ferber Ferber note 6, at 69. 69. at 6, note Therefore, child pornography is detrimental to children to children is detrimental pornography child Therefore, 232 , 940 A.2d at 265. ) 2/18/2020 ) 6:57 AM 227 supra ANGUAGE , Zidel ELETE ,L The LanguageofChild Sexual Abuse and Exploitation D OT ILNER RIME N O :C &M note 47, at 104. 104. at 47, note considered child pornography Oklahoma law.under childconsidered pornography AW National Center for Missing & Exploited Children, Children, Exploited & Missing for Center National L GDOVR³DUHFRUGRIDFULPHVFHQH´ , People v. Gerber, 196 Cal. App. 4th 368, 371 368, 4th App. Cal. 196 v. Gerber, , People This link makes clear that traditional images of child pornography are are Thismakeslink of clear images traditional child pornography that , 458 U.S., at 757 (statingthat not supra supra ONNELL , 228 at 759. at 760. D ST ¶ ,C-FINAL(D see also see The harm connected to traditional images of child pornography is self-evident. child pornography of images to traditional Theconnected harm It is incumbent on decent any society andto value protect children because of their The harm of child sexual bedrock of abuseThe of is the harm Id. Id. Ferber . See, e.g. . See, . Id. THE NEED TO INCLUDE MORPHED CHILD PORNOGRAPHY IN OKLAHOMA EACHAM ORNOGRAPHY ORNOGRAPHY 225 227 V. constitutesa government objectivesurpassing of importance pornography from First Amendment protections. First Amendment from pornography was not the only harm discussed by discussed by harm only the not was images are are images 2NODKRPD¶VVWDWXWHDQGWKHOHJLVODWLYHKLVWRU\VWURQJO\IDYRUV SRUQRJUDSK\¶V@FLUFXODWLRQ´ KDUPVRIFKLOGSRUQRJUDSK\VWDWLQJWKDWWKHKDUPRIVH[XDODEX ³VH[XDOO\DEXVLYHLPDJHVRIFKLOGUHQ´RU³FKLOGVH[XDODEXVHLP pornography and child sexual organizations is so well-defined and abuse that multiple pornography DXWKRUV UHMHFW WKH WHUP ³FKLOG SRUQRJUDSK\´ DQG GHVFULEH WKHVH 232. 233. societies, because it attacks the very core of flourishing healthy communities healthy flourishing coreit attackssocieties, because of very the children. repulsive, anrepulsive, http://www.missingkids.com/theissues/sexualab 231. P definitions ofpornography. child definitions 332 332 B 2016); 226. O 54 (Fla. Dist. Ct. App. 2011); 2011); App. Ct. Dist. (Fla. 54 legal definition of child pornography. of legal definition Children and Exploits Harms Pornography Child A. Morphed intrinsic worth. This intrinsic worth. inherentvalue, flows from dignity the of callswhich a humanity, for Morphed child harm. cause them those might who protects children from that policy public causes exploitsharm, pornography children as sexual and objects, basic violates notions RIKXPDQGLJQLW\7KHUHIRUHPRUSKHGFKLOGSRUQRJUDSK\VKRXOGE between the sexual abusebetween and the harm-in-circulation that poses the a problem for This relationship between traditional child pornography and child betweenThis traditional child sexual relationship pornography abuse is so XQDGXOWHUDWHGWKDWLW³RYHUZKHOPLQJO\MXVWLILHVWKHFULPLQDOL]D production and possession. production circulation through an economic argument, holding that the fuels holding child which argument, economic through market an circulation images banned. of if the circulation were dry abuse sexual would 230. Leary, Graw Mary 228. (1982). n.9 758 747, U.S. 458 Ferber, v. York New 229. O 42010-tul_55-2 Sheet No. 92 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 92 42010-tul_55-2 42010-tul_55-2 Sheet No. 93 Side A 03/03/2020 13:59:43 238 The The EFINING EFINING 243 R This new new This noted the noted the in , 236 Therefore, if the the if Therefore, 240 Hotaling 234 HQFRXUDJHFKLOGUHQWR 244 57, 61 (Carissa Byrne Hessick Hessick Byrne (Carissa 57, 61 abuse of children through children through of abuse WVRIUHDOFKLOGUHQDQGDUH recognized thatthe of recognized harm While protecting children from children While protecting from ¶V GLFWD HPEUDFHG D YLHZ WKDW WHFWHGVSHHFK´ 239 ). ). 333 333 Ferber potential potential ´ ONSEQUENCES VWDWHG WKDW ³>W@KH SURVSHFW RI FULPH [t]he AshcroftCourt alsodoubtno left that the C ³ This announcement from the Supreme OSIS Ashcroft 241 OCIAL OCIAL ´ S Ashcroft MORPH AND AND , Ferber 235 META ANGUAGE ,L ) 2/18/2020 ) 6:57 AM In other words, the harm of child pornography was not not was of child pornography the harm other words, In that morphed images that theharm morphed psychological well-being of note 237, at 61 (writing that that (writing 61 at 237, note 242 Setting Definitional Limits for the Child Pornography Exception Pornography Child the for Limits Definitional Setting RIME 237 reasoned that possession of child caused harm of pornography possession that reasoned connected to the sexual abuse of of abuse children. sexual connected the to ELETE :C D Bach supra Court rejected criminalizing virtual child pornography by quashing quashing by child pornography rejectedvirtual Court criminalizing OT still AW note 22, at 20. 20. 22, at note note 80, at 45. 45. at 80, note did not totally the potential totally causeddismiss did not child by harm morphed Court was the Court was attenuatedfirst a harm to describe more physical than N attempted to retie the knot between child and child between attempted to sexual pornography knot the retie L O Osborne supra supra , , 535 U.S.242. at , Shoemaker v. Taylor, 730 F.3d778,786 (9th Cir.2013); Doe v. Boland,698 F.3d 877, 884 (6th Ashcroft Ashcroft Osborne Ashcroft , 400 F.3d at632. at 245; Hessick, Hessick, 245; at at 759. ILLESPIE ,C-FINAL(D ORNOGRAPHY ORNOGRAPHY The federal circuit courts, leaning on on Thecourts, circuit leaning federal The The Id. Id. Yet, P M K . Bach . Ashcroft . Id. . See, e.g. . See, C Y HILD HILD EACHAM 244 241 240 243 however, by itself does by however, justifynot laws pro suppressing morphed child pornography does cause harm and is worthy of inclusion in the law. in inclusion of and is harm worthy does cause child pornography morphed engage in sexual activity, inengage sexual the activity, appetitesthatmight they pedophiles,whet of and that they child pornography. the actual for increase market might WKHJRYHUQPHQW¶VFRQWHQWLRQ WKDWWKHVHLPDJHV PLJKWEHXVHGWR abuse. Theabuse. because the evidence showed that pedophiles used it to seduce other children. seduce other showed evidence it to pedophiles used because the that SRUQRJUDSK\E\VWDWLQJWKDWWKHVHLPDJHV³LPSOLFDWHWKHLQWHUHV in that sensein closer to the images in sexual abuse is a law, use the valid of argument untethered the harm caused by child pornography from the foundational harm from child the pornography by untethered caused harm argument tied to the a harm toward and pointed abuse sexual of extended harms of child pornography are unconnected to actual sexual children, are abuseactual to of extended unconnected of childharms pornography away? also justifications drop do the criminalization of morphed child pornography. While While pornography. child of morphed criminalization Cir.2012); United States v. Hotaling, F.3d 634 725,730 (2d 2011); Cir. United States v. Bach,400 F.3d 622, 2005). Cir. (8th 632

242. G harm in creation is the touchstone of its child pornography doctrine pornography child its of touchstone the is creation in harm ed., 2016). 2016). ed., 238. 239. (2002). 256 234, U.S. 535 Coal., Speech Free v. Ashcroft 236. (1990). 111 103, U.S. 495 Ohio, v. Osborne 237. Hessick, Byrne Carissa 234. 235. Weinstein, C 2020] 2020] B FKLOGUHQ DQG WKXV LPSOLFDWH WKH ³LQWHUHVWV RI UHDO FKLOGUHQ´ However, However, connected only to the creation of child pornography but also to its existence. creation of childmere only to the pornography connected Ninth Circuitin held sexual abuse. sexual abuse. Court shows a strong federal belief that morphed images do in fact harm the interests of the interests of harm images a strong shows fact that Court do in morphed belief federal are (which between traditionalimages childchildren. caught pornography of And here, sexual of violence product children) against the (which and virtual child pornography involve actual sexualno violence against poses a children), child pornography morphed analyticalunique problem. pornographic seduction. pornographic child pornography beyond goes pornography child abuse, sexual extended those causedharms by circulation are and possession 42010-tul_55-2 Sheet No. 93 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 93 42010-tul_55-2 42010-tul_55-2 Sheet No. 93 Side B 03/03/2020 13:59:43 , O G 252 M K , 400 , 400 It is is It C Y Bach 251 Shoemaker 254 245 D ³PHDQV WR DQ LVWLFWRVD\WKDWWKH\ , 634at F.3d730; VRIVH[XDOH[SORLWDWLRQ OWKZKHQWKH\NQRZWKDW even comments even the on UDSK\FDXVHVKDUPEHFDXVH OL]LQJPRUSKHGLPDJHV Hotaling Boland [Vol. 55:311 55:311 [Vol. However, no singular theory of the the of theory singular However, no 246 247 mages. , 698 F.3d884;at , 698 F.3d884. at 248 Boland TULSA LAW REVIEW LAW TULSA see also Boland ) 2/18/2020 ) 6:57 AM This causes to a exploitation psychological harm child the with ELETE 1RWLFH WKDW WKH $UWLFOH GLVWLQJXLVKHV EHWZHHQ ³H[SORLWDWLRQ´ DQ , 730 F.3d at 786; 786; at F.3d 730 , D 250 note 230, at 133. 133. at 230, note OT note 22, at 3. 3. 22, at note 100. 22, at note 255 N GHVFULEHG WKH KDUP SRVHG E\ PRUSKHG FKLOG SRUQRJUDSK\ DV ³VH[XD O Criminalising Fabricated ImagesChild of Pornography:Matter A oforMorality? Harm While it is certainly While it is certainly that true morphed are images those only which make supra supra supra supra , 730 F.3d at 786. 786. at F.3d 730 , , 730 F.3d at 786. 786. at F.3d 730 , note 47, at 119; at 47, note , , 249 Shoemaker , 634 F.3d at730. . 230, 241 (2010). , , 698 F.3d at 881. at 881. , 698 F.3d that their image their that was used as an ofinstrument sexual gratification. This distinction supports the argument that morphed child pornography is is pornography child that morphed argument supports the distinction This supra DVWKRXJKWKHFKLOGLVHQJDJLQJLQVH[XDODFWLYLW\LWLV³UHDO TUD , 256 S This exploitative harm violates sexual autonomy and personhood. autonomy violates sexual harm exploitative This ILLESPIE ST ILLESPIE ,C-FINAL(D This distinction between the harms of sexual abuse and sexual exploitation exploitation and sexual sexual abuse was the harms of between This distinction Shoemaker However, some commentators some However, have rejected justification these types of the harm, of 253 . Shoemaker . Shoemaker . Boland . See, e.g. . See, . Id. . Hotaling . Id. EGAL appear EACHAM [SORLWDWLRQ´ 246 247 248 249 252 245 256 KH&KLOGHQFRXUDJHVQDWLRQVWR³SURWHFWWKHFKLOGIURPDOOIRUP F.3d at 632; Leary, Leary, 632; at F.3d 250. G e 254. G harm caused by morphed child pornography beenhas caused established. the While central harm by harm childmorphed pornography actual abusesexual of is implicated not by other theharms noted images, by morphed the courts are plentiful.federal still,And the circuit courtsutilize these boldly harms, to actualunconnected sexual as a justificationabuse, in the include to images morphed child pornography. of definition federal highlighted the sexual exploitation, psychological harm, and reputational harm that harm reputational and harm, psychological exploitation, sexual the highlighted children. on imposes child pornography morphed acknowledged on the international level. Article 34 of the UN Convention on the Right of the Right of the UN on of international Convention 34 level. the acknowledgedArticle on t DQG VH[XDO DEXVH´ ³SULYDF\LQMXULHV´VWHPPLQJIURPPRUSKHGL 253. O knowledge 30 L 30 ³DEXVH´ exploitive nature and exploitive nature reputational by triggered harm morphed images. 334 334 B it HQG´ the pornographer is taking unfair advantage of a child, using them as them a child, using of advantage unfair is taking pornographer the Furthermore, the this by the produced harms exploitationsexual limitedFurthermore, are not to the the is and/or body face that aware their becomes a child or not Whether psychological. VXEMHFWRIDSHGRSKLOH¶VVH[XDOIDQWDVLHVPRUSKHGFKLOGSRUQRJ harmful, and worthy of inclusion in Oklahoma law, because of the exploitation of the of exploitation the because law, Oklahoma of in inclusion of and harmful, worthy images. exploitation pornographic and the It is this these to create are used children who harms ensue that which are consistently inmentioned the federal circuit courts.

LPSRVVLEOHWRTXDQWLI\WKHFRQVHTXHQFHVRQDFKLOG¶VPHQWDOKHD is usinga pedophile their image as masturbatory material. if Even some of victims that their photo is being manipulated are unaware a child pornography for morphed SHGRSKLOH¶VVH[XDOSOHDVXUHWKHWKUHDWDORQHMXVWLILHVFULPLQD 251. Ost, Suzanne 255. 1990). 2, (Sept. Child the of Rights the on Convention 44/25, Res. G.A. KDYHEHHQH[SORLWHG´ 42010-tul_55-2 Sheet No. 93 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 93 42010-tul_55-2 42010-tul_55-2 Sheet No. 94 Side A 03/03/2020 13:59:43 . AM mp WRU¶V &F Hotaling Structured Structured – ELFARE ELFARE .W Relying on harm OC Often the young the young Often S 259 & L. 486, 522 (2010). 262  Still, without a direct a direct Still, without Y LQLWLRQUHPDLQVVWURQJ ¶ , 26 J. However, there is little is little there However, 258 OL GDXJKWHU¶VIULHQGVDFD .P 265 GWRLQFOXGHLPDJHVWKDWZHUH OC However, this commenta this However, 257 .J.S . Morphed as the images, A 335 335 , 17 , 17 V OSIS Nevertheless, a disconnection between Ashcroft Here the notion of harm is flipped, and it is is is flipped, and it harm of notion Here the 260 264 261 MORPH META Additionally, this argument is severely flawed. Because Because is severely this argument flawed. Additionally, The mental fantasies of pedophiles in morphed child The fantasies of child mental in pedophiles morphed 266 263 ) 2/18/2020 ) 6:57 AM ELETE Child Pornography Law: Does It Protect Children? Protect It Does Law: Pornography Child D or Self-Produced Child-Pornography? The Dialog Continues Continues Dialog The Child-Pornography? Self-Produced or Sexting OT note 22, at 41. 41. 22, at note N note 237, at 58. O supra , 72. supra ± at 73. , at 67. , at 67. ; People v. Gerber, 196 Cal. App.4th368, 373 (2011); Parker v. State,81 So. 451, 3d 452 (Fla. Dist. at 70 ILLESPIE ,C-FINAL(D Id. Furthermore, and the child between sexualwhile Furthermore, link child pornography morphed Another view espousesAnother minority a beneficial to child pornography purpose morphed M K . Id. . See id. . See . Id. . Id. C Y EACHAM 265 259 258 263 260. 261. Mary Graw Leary, Leary, 261. Graw Mary Prosecutorial Discretion Within a Multidisciplinary Response Multidisciplinary a Within Discretion Prosecutorial morphed images and sexual child abuse does not negate the harms of sexual exploitation, of the harms negate not morphed images does and sexual child abuse federal the by many used harm reputational possible harm, or the potential psychological courts previously mentioned. these While harms are certainly than different the one simply saying types of is childthat to other the pornography, link does connected weak void. argument render the effectively not evidence that isthis correct. of actual sexual abuse, it is possible to believe that the other harms implicated by morphed morphed by implicated harms other the abuse, sexual to believe that it is possible actual of are sufficientnot to and are unconnected child pornography at sexual of abuse time the these to render imagesproduction illegal. victims of victims of these mental fantasies are children directin contactthe More pedophile. with casesthan of half the previously discussed in thisarticle direct connections expose EHWZHHQWKHYLFWLPDQGWKHSRUQRJUDSKHULQFOXGLQJDIDWKHUDQG schoolstudents, students, and camp a Sunday and Sunday school teacher photographer and daughter. and a father VWDWLQJWKDW³>W@KHLGHDWKDWFKLOGSRUQRJUDSK\FRXOGEHGHILQH FUHDWHGZLWKRXWKDUPLQJFKLOGUHQVKRXOGJLYHXVSDXVH´ virtual child pornography is not illegal, the hypothetically positive effects be realized positive could is the hypothetically illegal, not child pornography virtual images computer-generatedwith of actual children, not children real interestswith to case for counter-arguments and the these are convincing of none a result, protect. As LQFOXGLQJPRUSKHGFKLOGSRUQRJUDSK\LQ2NODKRPD¶VVWDWXWRU\GHI Ct. App. 2011); State v. Zidel, 940 A.2d 255, 256 (N.H. 2008). 2008). (N.H. 256 255, A.2d 940 Zidel, v. State 2011); App. Ct. 264. Williams, Katherine 262. 2011). Cir. (2nd 727 725, F.3d 634 Hotaling, v. States United L. 245, 253 (2011). (2011). 253 245, L. 266. G 257. Hessick, 2020] 2020] B GHIHQGDQW DGPLWWHG UHFRUG WKH ³PHQWDO IDQWDVLHV´ RI SHGRSKLOHV abuse is attenuatedabuse thanmore ittraditional is certainly associated child more pornography, discussed in child pornography the virtual than link betweenlink the images andmorphed the sexual abuse of children, some defendedhave child pornography. of category the images from excluding morphed because these images potentially could pedophiles help facilitate an outlet theirfor disease, sexual abuse. real children from protecting pornography visually represent a lust for children known by the pornographer. Therefore, Therefore, pornographer. represent by visually children a lust for the known pornography intimate in nature. is eerily involved exploitation child pornography sexual the in morphed argued that theseargued images actuallymight lead to less harm. focus is primarily on images. sexting and not images morphed focusis primarily 42010-tul_55-2 Sheet No. 94 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 94 42010-tul_55-2 42010-tul_55-2 Sheet No. 94 Side B 03/03/2020 13:59:43 ² ² M K C Y noted EFINING EFINING R in , USKHG FKLOG WKH GHSLFWHG The Geneva The Geneva Ferber note 267, at 178. 274 supra Objectifying children children Objectifying SK\ KDUP WKH FKLOG¶V GLPDJHVLQ2NODKRPD¶V 272 165, 166 Hessick Byrne (Carissa KHKDUP³FDXVHGWRDFKLOG WLPWKDQGRHVVH[XDODEXVH 271 ´ ORJLF ZKLFK DFNQRZOHGJHG ³WKH [Vol. 55:311 55:311 [Vol. From Producers to Possessors to Producers From — ONSEQUENCES ONSEQUENCES C Ferber OCIAL S AND AND , note 267, at 178. ³(YHQLIWKHFKLOGZDVXQDZDUHWKHLPDJHZDVPDGH the freedom to not be viewed in such and a sexualized in be viewed to not the freedom TULSA LAW REVIEW LAW TULSA supra 269 278 ANGUAGE note 6, at 74. 74. at 6, note ,L ) 2/18/2020 ) 6:57 AM Even tort law limits images of certain death and autopsy and autopsy death certain limits images of tort law Even supra , RIME 276 ELETE This idea to is related D :C OT ILNER 270 Children in morphed child pornography suffer an injury beyond beyond an injury suffer in Children child pornography morphed AW N The Dignitaryof Harm Child Pornography L O note 251, at 241. note 267,at 177. note 267, at 177. 177. at 267, note 268 &M note 47, at 105. 105. at 47, note 128. at 47, note RIKXPDQGLJQLW\´² consent to sexual the child has In child pornography, activity. not morphed consent to their in order to gratify appetites of to theirthe sexualization adults. in order to gratify supra supra supra The Supreme Court ruled that there is a right of privacy over death-scene over privacy of right is a there that Court ruled The Supreme JHVDYLHZRIFKLOGUHQDVOHJLWLPDWHVH[XDOREMHFWV´ , 458 U.S. at 759n.10. , 541 U.S. at 169; Rogers, ² ² This images interest in applies protecting private to children, a right have who supra supra Therefore, to legalize morphed child pornography would be to legalize the the to legalize be to legalize Therefore, pornography child would morphed l Archives & Records Admin. v. Favish, 541 U.S. 157, 170 (2004); Rogers, Rogers, (2004); 170 157, U.S. 541 Favish, v. Admin. Records & Archives l ONNELL 275 , , ¶ ; Geneva ConventionRelative the to Treatment of Prisoners of War art. 13,12, Aug.1949, 6 U.S.T. ; Ost, D ST ST ¶ 277 ,C-FINAL(D 267 ORNOGRAPHY VWLWXWLRQ´ 273 This argument is consistent with the logical division between adult pornography and is consistentThis between logical argument division the with pornography adult an their protecting likeness inherent share humans interest in Furthermore, from 0RUSKHG FKLOG SRUQRJUDSK\ ³YLRODWHV WKH SULYDF\ DQG GLJQLW\ RI These notions of human dignity and privacy are also implicated dignity and privacy These of the currenthuman notions in Id. P . Favish . Id. . Ferber HILD HILD EACHAM 277 270 271 vulnerable position. vulnerable violation of fundamental human rights and autonomy. rights human is of Perhaps this fundamental why violation 278. O 274. Rogers, LQGLYLGXDOLQWHUHVWLQDYRLGLQJGLVFORVXUHRISHUVRQDOPDWWHUV photos. 273. O to satisfy the desires of adults only can encourage those who commit actual child sexual abuse. child pornography. As previously mentioned, lack of consent the role in of lack plays a significant previously mentioned, As child pornography. the child has traditional In child pornography not of childpornography. understanding cannot and law. the areas of in other an interest is also found which use, improper ed., 2016). 2016). ed., 268. (1982). n.10 759 747, U.S. 458 Ferber, v. York New 269. Rogers, FKLOG´ 267. Audrey Rogers, Rogers, 267. Audrey C B. Morphed Child Pornography Violates Human Dignity Human Violates MorphedB. Pornography Child 336 336 B images of a loved one. a loved of images RU FLUFXODWHG WKRVH ZKR FUHDWH WUDGH DQGinherent right YLHZ FKLOG SRUQRJUD 275. 3316,75 U.N.T.S. 135. 276. Nat definition of child pornography. of definition QRWWREH³GHIDPHG´IXUWKHUEROVWHULQJWKHLQFOXVLRQRIPRUSKH Convention bans photographs of prisoners of war that subject them to humiliation or public or public to humiliation subject that them of war prisoners of photographs bans Convention curiosity. WKDW³SRUQRJUDSK\SRVHVDQHYHQJUHDWHUWKUHDWWRWKHFKLOGYLF or pro GLVFXVVLRQ UHJDUGLQJ ³GHHSIDNH´ onto actorsadult women innocent the embeds pornography faces of in pornography, SRUQRJUDSK\ ZKLFK PXFK OLNH PR physical or psychological harm. or psychological physical 272. O and cannot 7KLVFRQVXPSWLRQRIFKLOGSRUQRJUDSK\FDQFDOORXVDSHUVRQWRW and encoura 42010-tul_55-2 Sheet No. 94 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 94 42010-tul_55-2 42010-tul_55-2 Sheet No. 95 Side A 03/03/2020 13:59:43 ? 284 281 Child Child OSSIBLE this icky this icky Everybody P “ 288 T I S ?I ODWHG² 287  WKDW DUH FUHDWHG W DQG DEXVH´ EGAL L body and making it and making body T I S ´ SRUQRJUDSKLF YLGHRV UHQW (Dec. 30, 2018), 2018), 30, (Dec. ?I QRWKLQJFDQVWRSVRPHRQH ISE W T I S OST OST :I The belief was that The acted the king belief 337 337 285 OSIS ORALITY .P M ASH note 264,at 255. MORPH supra But Ms. Johansson is wrong. At the federal level, level, federal the Johansson At Ms. is wrong. But EGISLATING ,W 282 As a practical example, the As a practical example, Thirteenth Amendment is ” ,L META 286 UREK T ) 2/18/2020 ) 6:57 AM RANK ELETE D A Washington Post Washington A article states that these materials pornographic &F OT note 22, 9; 22, at note Williams, N 280 Fake-Porn Videos Are Being Weaponized to Harass and Humiliate Women: Women: Humiliate and Harass to Weaponized Being Are Videos Fake-Porn O EISLER EISLER supra , Some Some scholars direct linkhavelaw, between and noted the the morality G protected from this type of violation of human dignity because legal because of dignity violation this type from protected of human 283 $VRQHYLFWLPRID³GHHSIDNH´SRUQYLGHRGLVFORVHG³,IHHOYLR are at 23. at 23. ILLESPIE ORMAN 279 ,C-FINAL(D The idea that children should be protected from sexualization is consistent with from protected be children should that The idea +RZHYHU VRPH DVVHUW WKDW ³>S@URVHFXWLQJ LQGLYLGXDOV IRU LPDJHV Perhaps reason the the federal circuit courts have affirmedso diligently the federal M K . Id. . Id. . Id. . Id. . Id. . Id. C Y EACHAM 280 281 282 285 286 287 288. (1982). 757 747, U.S. 458 Ferber, v. York New NLQGRIYLRODWLRQ´ https://www.washingtonpost.com/technology/2018/12/30/fake-porn-videos-are-being-weaponized-harass- humiliate-women-everybody-is-potential-target/?utm_term=.0f96de6b8c91. 283. G children 284. N videos. deeply-rooted public policy. Certainly, the of demands Certainly, theAmerican moral fabric society policy. public deeply-rooted them. The abuse children prevention of sexual of would protection peoplefrom who importance. surpassing of objective an children constitutes of exploitation 279. Drew Harwell, 279. Harwell, Drew 2020] 2020] B 18 (1998). an instance the slavery. government stand banning a took by when moral pornography laws themselves reveal this strongly held desire to guard the most precious precious most the held desire to guard strongly themselves reveal this laws pornography in society. persons and vulnerable DUH ³ZHDSRQL]HG´ DJDLQVW ZRPHQ FDXVLQJ ³KXPLOLDWLRQ KDUDVVPHQ even stating that the American Revolution was fueled by many things including the beliefthe including things many by fueled Revolutionthe was American that even stating ³WKDWWKHNLQJRI%ULWDLQZDVQRWOHJLVODWLQJPRUDOO\´ 6FDUOHWW -RKDQVVRQ D SURPLQHQW DFWUHVV DQG YLFWLP RI ³GHHSIDNH IURPFXWWLQJDQGSDVWLQJP\LPDJHRUDQ\RQHHOVH¶VRQWRDGLIIH VSHDNVWRWKHGHSWKRIWKH³GHHSIDNH´SUREOHPE\VWDWLQJWKDW³ without abusing or exploiting a child transforms child pornography law into a system for for into child a system law a child transforms or exploiting abusing without pornography look as eerily realistic as desired as eerily .look its and the Internet from . yourself to protect . . [T]rying GHSUDYLW\LVEDVLFDOO\DORVWFDXVH´ unfairly, violating human rights. human violating unfairly, is Potentiallya Target definition of child pornography is the desire to protect children from something blatantly from desire to protect children is the child pornography of definition repugnant.Whether it is this unspoken rationale, or stand-alone a justification, the moral In fact, impact public policy. and ethical connections to child pornography morphed child pornography their behind and Wales rationale moral a strong England have legislation. definitions of child pornography include morphed images. However, without including including images. include However, without morphed child pornography of definitions morphed child pornographyin the definition of child pornography, attempting to protect ofchildren this Johansson abuse, type from as Ms. laments, a lost cause.is Policy to Public Is Repugnant Pornography Child Morphed C. 42010-tul_55-2 Sheet No. 95 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 95 42010-tul_55-2 42010-tul_55-2 Sheet No. 95 Side B 03/03/2020 13:59:43 * M K C Y Therefore, Therefore, 291 Caleb Beacham – W\´ XVHLWVKDUPIXOHIIHFWV One commentator even commentator One even . Theauthor would like to thank 290 WUXVW´RISURWHFWLQJWKHPRVW [Vol. 55:311 55:311 [Vol. , poses a threat to the moral of the to , poses a threat fiber moral . . wherein a minor under the age of eighteen eighteen age of the under a minor . . wherein Public policy, undergirded by strong moral strong moral by undergirded policy, Public 292 293 ). ). CONCLUSION ´ VI. TULSA LAW REVIEW LAW TULSA Othersdisagree completely. The University of Tulsa College of Law of College Tulsa of University The 289 ) 2/18/2020 ) 6:57 AM ELETE D OT N note 264, at 254. 254. at 264, note note 237, at 73. at 73. 237, note O note 47, at 120. 120. at 47, note supra supra , 458 U.S. at 757. supra [T]he reasoning for the law must fall back on the protection of sexual morality; the desire to prevent prevent to desire the morality; sexual of protection the back on must fall law the for reasoning [T]he , ³ ( ST ,C-FINAL(D HDUVLVHQJDJHGRUDSSHDUVWREHHQJDJHGLQDQ\VH[XDODFWLYL With the constitutional issues previously constitutional issues the With previously handled good federal level, the the at intent the child pornography, of harms morphed the With to protect children from But public policy and strong and strong convictions policy representation in the without public But meaningful . Ferber . Id. EACHAM 293 291 Caleb Beacham is a J.D. candidate at at candidate J.D. a is Beacham Caleb stated that thesestated images. that banning an is morality for appropriatefoundation people of Oklahoma have the right to protect their children from pornographers childrenwho from pornographers Oklahoma to protect their people the have of right statute that their a definition in including exploit children by child pornography of is Because not child pornography morphed child pornography. incorporates morphed LQFOXGHGLQ2NODKRPD¶VGHILQLWLRQRIFKLOGSRUQRJUDSK\DQGEHFD children, define new statute should in the protecting deeply-rooted value our light of and in FKLOGSRUQRJUDSK\DV³DQ\YLVXDOGHSLFWLRQ are worthy of prosecution, the of Oklahoma prosecution, legislature shouldare worthy to protect state law update The legislature canchildren. either adopt statutefrom or reach the language current federal Oklahoma previously language into that defined legislativeback use the and history before changed. it was obscenity (18) y * 289. Hessick, HQIRUFLQJSRSXODUPRUDOLW\´ 338 338 B 290. Williams, LPPRUDOEHKDYLRU³HYHQWKDWZKLFKRFFXUVLQSULYDWH VRFLHW\DQGFRQVHTXHQWO\VRFLHW\LWVHOI´ convictions, properly calls for the inclusion of morphed child Oklahoma pornography in of morphed inclusion calls for the properly convictions, law.

law is of little islaw of It is onevalue. believe to that thing children be exploited not by should it but ispedophiles, law another the to addfor meaningful weight behind this conviction. accentuate to protect children. need caused the The by child pornography harms morphed and dignity psychologicaland of human exploitation, violations Sexual harm, privacy FDQQRWEHWROHUDWHGLQDVRFLHW\WKDWKROGVKLJKO\WKH³VDFUHG and defenselessvulnerable in society. Meghan Hilborn for her invaluable insight and help during the writing process. Foremost, he would like to thank thank to like would he Foremost, process. writing the during help and insight invaluable her for Hilborn Meghan support. and love, patience, their for Paxton and Addalyn, Kaylee, children, his Bre, wife, his 292. O people obtaining sexual gratification, even if it does not interfere with the rights of children (especially in the in the (especially children of rights the with interfere not it does if even gratification, sexual obtaining people people most because merely image), the of creation the in used not are children where pseudo-images, of case abhorrent. is images such viewing that consider 42010-tul_55-2 Sheet No. 95 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 95 42010-tul_55-2