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Changing Oklahoma Law to Protect Children from Morphed Child Pornography

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Changing Oklahoma Law to Protect Children from Morphed Child Pornography Tulsa Law Review Volume 55 Issue 2 Book Review Winter 2020 Metamorphosis: Changing Oklahoma Law to Protect Children from Morphed Child Pornography 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 Child Pornography, 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 BEACHAM,C-FINAL(DO NOT DELETE) 2/18/2020 6:57 AM METAMORPHOSIS: CHANGING OKLAHOMA LAW TO PROTECT CHILDREN FROM MORPHED CHILD PORNOGRPAHY I. INTRODUCTION ...................................................................................................... 312 II. TYPES OF CHILD PORNOGRAPHY ..................................................................... 312 A. The Difficulty of Defining Child Pornography ............................................. 313 B. Lewd Exhibition ............................................................................................ 315 C. Virtual ........................................................................................................... 316 D. Morphed ........................................................................................................ 316 III. CHILD PORNOGRAPHY AND THE LAW ........................................................... 317 A. Early Developments ...................................................................................... 317 B. Child Pornography, Obscenity, and the First Amendment ............................ 318 &7KH&33$&RQJUHVV¶$WWHPSWWR%DQ9LUWXDODQG0RUSKHG&KLOG Pornography ............................................................................................... 321 D. The Federal Circuit Courts and the Harms Caused by Morphed Child Pornography ............................................................................................... 323 IV. OKLAHOMA LAW DANGEROUSLY IGNORES MORPHED CHILD PORNOGRAPHY ............................................................................................. 325 $2NODKRPD¶V'HILQLWLRQRI&KLOG3RUQRJUDSK\ .............................................. 326 1. The Plain Meaning ................................................................................. 326 42010-tul_55-2 Sheet No. 82 Side A 03/03/2020 13:59:43 2. The Legislative Intent and Boundaries ................................................... 327 D. Other States and Morphed Child Pornography ............................................. 328 1. California: People v. Gerber .................................................................. 328 2. Florida: Parker v. State .......................................................................... 330 3. New Hampshire: State v. Zidel ............................................................... 331 V. THE NEED TO INCLUDE MORPHED CHILD PORNOGRAPHY IN OKLAHOMA LAW .................................................................................................................. 332 A. Morphed Child Pornography Harms and Exploits Children ......................... 332 B. Morphed Child Pornography Violates Human Dignity ................................. 336 C. Morphed Child Pornography Is Repugnant to Public Policy ........................ 337 VI. CONCLUSION ........................................................................................................ 338 311 C M Y K 42010-tul_55-2 Sheet No. 82 Side B 03/03/2020 13:59:43 BEACHAM,C-FINAL(DO NOT DELETE) 2/18/2020 6:57 AM 312 TULSA LAW REVIEW [Vol. 55:311 I. INTRODUCTION 5HIHUULQJWRSRUQRJUDSK\6XSUHPH&RXUW-XVWLFH3RWWHU6WHZDUWIDPRXVO\ZURWH³, NQRZLWZKHQ,VHHLW´1 However, the current struggle to define child pornography in our technologically-DGYDQFHG DJH GHPRQVWUDWHV WKDW 6WHZDUW¶V DELOLW\ LQ WR LGHQWLI\ pornography with a glance is not a viable option for defining child pornography today.2 This comment tracks the development of child pornography law, specifically focusing on morphed child pornography and Oklahoma law. Morphed child pornography is distinct from images of children engaging in sexual acts, or depictions of virtual children engaging in sexual acts.3 Rather, morphed child pornography consists of otherwise innocent images of real children edited to appear as though the child is engaged in a sexual act.4 Ultimately, WKLV FRPPHQW DUJXHV WKDW 2NODKRPD¶V OHJDO GHILQLWLRQ RI FKLOG SRUQRJUDSK\ VKRXOG EH updated to include morphed child pornography thereby protecting the children that are exploited in these types of images.5 Part II provides a brief overview of the history of child pornography. This section provides the context necessary to understand the interactions between the multifaceted definitions of child pornography and the law. Specifically, this part defines morphed child pornography by comparing and contrasting morphed child pornography with other categorical definitions, including virtual child pornography and lewd child pornography. Part III explains the interaction of child pornography and the law in the United States, both at the federal and state level. The evolution of obscenity laws is tracked along with its relationship to child pornography law. The interaction of child pornography law and the First Amendment is discussed. 3DUW ,9 LQWHUSUHWV 2NODKRPD¶V VWDWXWH GHILQLQJ FKLOG SRUQRJUDSK\ DQDO\]LQJ whether or not the morphed variety legally constitutes child pornography. It utilizes different tools of statutory construction to answer this question, looking at the legislative intent behind this section in the criminal code and the plain meaning of the words in the statute. This part also addresses the treatment of child pornography at the state level, noting 42010-tul_55-2 Sheet No. 82 Side B 03/03/2020 13:59:43 the different statutory definitions of child pornography and whether morphed child pornography is included in those definitions. Part V argues that morphed child pornography should fall within any definition of child pornography. After addressing the harms and exploitation caused by morphed images, this part concludes that morphed child pornography should be included in 2NODKRPD¶VVWDWXWRU\GHILQLWLRQRIFKLOGSRUQRJUDSK\)LQDOO\LWUHFRPPHQGVWKHVLPSOH language needed to broaden OklahomD¶VVWDWXWRU\GHILQLWLRQRIFKLOGSRUQRJUDSK\ II. TYPES OF CHILD PORNOGRAPHY While recent developments in technology have continued to create new conversation and controversy about child pornography, the existence of child pornography predates 1. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). 2. MONIQUE MATTEI FERRARO &EOGHAN CASEY,INVESTIGATING CHILD EXPLOITATION AND PORNOGRAPHY:THE INTERNET, THE LAW AND FORENSIC SCIENCE 237 (2005). 3. CARMEN M. CUSACK,PORNOGRAPHY AND THE CRIMINAL JUSTICE SYSTEM 188 (2015). 4. Ashcroft v. Free Speech Coal., 535 U.S. 234, 242 (2002). 5. See generally OKLA.STAT. tit. 21, § 1024.1(A). C M Y K 42010-tul_55-2 Sheet No. 83 Side A 03/03/2020 13:59:43 BEACHAM,C-FINAL(DO NOT DELETE) 2/18/2020 6:57 AM 2020] METAMORPHOSIS 313 even the invention of the printing press in the fifteenth century.6 For example, paintings depicting sexual activity between men and young boys have been discovered in ancient Greek civilizations.7 In addition, written pornography describing sexual acts with children has survived from seventeenth-century France and England.8 Indeed, it has been said that ³>D@OPRVWVLQFHPDQGLVFRYHUHGWKHDELOLW\WRZULWHRUGUDZKHKDVUHFRUGHGWKHVH[XDO DEXVHRIFKLOGUHQ´9 Advancements in technology have greatly increased the production and distribution of child pornography. With the invention of the camera in the early nineteenth century, the pornography industry boomed, and with it, child pornography.10 The relationship between technology and pornography continues today. Significant changes in technology can shift the creation and distribution of child pornography in a matter of years.11 Rapid advancement in technology led to a proliferation of child pornography.12 These GHYHORSPHQWVFUHDWHGZKDWKDVEHHQGHVFULEHGDVD³FKLOGSRUQRJUDSK\UHYROXWLRQ´DQG created a context in which defining child pornography is a challenging task.13 A. The Difficulty of Defining Child Pornography For a number of reasons, including advancements in technology, a succinct and clear definition of child pornRJUDSK\LVHOXVLYH-XVWLFH6WHZDUW¶VQRQ-descript diagnosis is a poor default.14 Attempting to define child pornography while considering all the resulting implications is a muddy task. Accordingly, the challenges of defining child pornography were highlighted at the First World Congress Against the Commercial Sexual Exploitation of Children: The question of what constitutes child pornography is extraordinarily complex. Standards that are applied in each society or country are highly subjective and are contingent upon different moral, cultural, sexual, social and religious beliefs that do not readily translate into law. Even if we confine ourselves to a legal definition of child pornography, the concept is elusive. Legal definitions of . ³FKLOGSRUQRJUDSK\´GLIIHUJOREDOO\DQGPD\GLIIHUHYHQ 42010-tul_55-2 Sheet No. 83 Side A 03/03/2020 13:59:43 among legal jurisdictions within the same country.15 As the above quote illustrates, questions
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