An Examination of Rationales for the Continued Prohibition of Virtual Child Pornography

James Houston Bales, Independent Scholar

Since approximately 2004, a single- commonly listed as one of the main types of panel comic strip has been floating around doujinshi, or fan-created manga.3 on the internet: A man with a shocked In the West, the Tijuana Bibles of the expression on his face seated at a computer 1920s and 1930s lampooned many popular exclaims “Calvin and Hobbes?” while the characters, real and created, including the text above the image reads “Rule 34: There clearly high school-aged cast of the Archie is porn of it. No exceptions.” 1 Since its comics and other invented and popular inception as a meme, it has grown from a characters of dubious legal age.4 But setting joke about what unexpected depravities can aside the questions of taste, copyright, and be found on the internet to a full-fledged expression such images raise, focus instead phenomenon mainstream enough for South on the oft-ignored speech balloon in the Park to joke about on Comedy Central. 2 center of that comment: The content which Fanart communities have long embraced the has the cartoon man so shocked is, concept behind Rule 34, with the idea of ostensibly, a pornographic image featuring, pornographic embellishment of existing as his creator Bill Watterson describes him, properties becoming popular enough to be the child Bill Watterson never was.5 This creates a problem where Rule 34 and fan-created content in the same vein runs afoul of the law. Passed in 2002, the PROTECT Act contains in its provisions this statement: “Nonrequired Element of NB: The editors of The Phoenix Papers Offense. – It is not a required element of any recognize that this is a delicate subject and offense under this section that the minor caution readers to judge for themselves whether the material will adversely affect their mental and emotional health before 3 What is Doujinshi, reading this article. We welcome letters to http://blog.fromjapan.co.jp/en/others/what- the editor should anyone wish to respond to is-doujinshi.html. this or any other article. 4 Oh Archie! Archie and the Tijuana Bible 1 Rule 34, Scene, http://knowyourmeme.com/memes/rule-34. https://www.bleedingcool.com/2017/01/30/o 2 South Park Addresses Rule 34, Yaoi, And h-archie-archie-tijuana-bible-scene/. the Problem of Aggressive Acceptance, 5 About Calvin and Hobbes, http://decider.com/2015/10/29/south-park- http://www.calvinandhobbes.com/about- yaoi-rule-34/. calvin-and-hobbes. The Phoenix Papers, Vol. 3, No. 2, March 2018 31 depicted actually exist.” 6 Created in the whether between persons of the same aftermath of Ashcroft v. Free Speech or opposite sex; and lacks serious Coalition, the PROTECT Act writes broad literary, artistic, political, or scientific value; or attempts or definitions that, especially when combined conspires to do so, shall be subject to with subsection (c) listed above, are the penalties provided in section designed to recriminalize what Ashcroft v. 2252A(b)(1), including the penalties Free Speech Coalition found to be protected provided for cases involving a prior speech: Non-obscene pornography in which conviction.9 no minors are involved.7 Before getting into the arguments, the What this statute seeks to criminalize is nature of this subject matter and the defined in Ashcroft as “virtual child 10 arguments to come requires that certain pornography.” Recognized by the Supreme concepts be defined before moving forward, Court as early as 1982’s New York v. Ferber lest the arguments lose their power through decision, virtual child pornography is an assumption of support for concepts they generally understood to be encapsulated by do not support. Specifically, the concept of the phrase “a visual depiction of any kind, virtual child pornography needs a definite including a drawing, cartoon, sculpture, or and limited definition. Returning to the painting” in the language of the PROTECT 11 PROTECT Act, subsection (a) outlines Act. Put a bit more simply, virtual child specific requirements for the offense the title pornography is pornography born wholly calls “Obscene visual representations of the from the imagination, depicting children, but sexual abuse of children:”8 without any real child involved at any stage of its creation. Limited in such a way, the Any person who. . . knowingly question can then be asked whether the produces, distributes, receives, or creation, possession, and distribution of such possesses with intent to distribute, a depictions can even be a crime at all. visual depiction of any kind, At this point, it is prudent to note that including a drawing, cartoon, nothing in this paper should be construed as sculpture, or painting, that depicts a a justification of actual child pornography. minor engaging in sexually explicit conduct; and is obscene; or depicts Focusing on the problematic intersection of an image that is, or appears to be, of harm and a victimless crime is impossible a minor engaging in graphic where a victim actually exists. The Supreme bestiality, sadistic or masochistic Court recognizes this same problem when abuse, or sexual intercourse, applied to this subject: “As a permanent including genital-genital, oral-

genital, anal-genital, or oral-anal, 9 18 USCA § 1466A(a) (West). Subsection (b) uses the same language to criminalize 6 18 USCA § 1466A(c) (West). possession. 7 Ashcroft v. Free Speech Coal., 535 US 10 Ashcroft, at 236. 234, 238, 122 S. Ct. 1389, 152 L. Ed. 2d 403 11 New York v. Ferber, 458 US 747, 763, (2002). 102 S. Ct. 3348, 3357-58, 73 L. Ed. 2d 1113 8 18 USCA § 1466A (West). (1982); 18 USCA § 1466A(a) (West). The Phoenix Papers, Vol. 3, No. 2, March 2018 32 record of a child’s abuse, the continued include virtual child pornography, the initial circulation itself would harm the child who distinction he makes is quite important, had participated. Like a defamatory especially when considered in light of statement, each new publication of the Justice Kennedy’s analogy to defamation in speech would cause new injury to the child’s Ashcroft. Like child pornography, this paper reputation and emotional well-being.”12 Any will not argue for any legal protection for argument for the legalization of such records pseudo child pornography. Leaving aside of abuse is not an argument that can be England’s logic, which is largely used to made within the scope of this paper, and justify child pornography laws in general thus it must be set aside in favor of a narrow and creates no good, specific argument focus on the questions surrounding unique to pseudo child pornography, Justice legalization of virtual child pornography. Kennedy’s logic for defamation as a Another sort of child pornography exists justification for child pornography laws is in the space between virtual child possibly a better argument against pseudo pornography and the records of abuse child pornography than it is against general created in real child pornography, which I child pornography. will term pseudo child pornography. Such Generally, “[d]efamatory matter may images are discussed at length in Internet include statements that would subject one to Child Pornography and the Law: National hatred, ridicule, obloquy, or contempt, or to and International Responses by Yaman statements which would reflect negatively Akdeniz, although in relation to the laws of on one’s reputation for morality, integrity, or the United Kingdom. There, Akdeniz says honesty, or to matter which tends to the creation of pseudo child pornography is negatively affect one’s financial status or explicitly banned by statute, and Akdeniz standing in the community.” 14 While a gives an in-depth description of what the complete analysis of defamation as it relates statute seeks to ban: “Psuedo-photographs to the world of pseudo child pornography is are technically photographs, but they are beyond the scope of this paper, it is safe to created by a variety of ways including by say that a young person could certainly computers by the use of photo/image suffer reputational harm or be subjected to a software. For example, a child’s face can be myriad of negative reactions if their picture superimposed on an adult body or to another were to be manipulated into pornography. child’s body together with the alteration of People over the age of consent clearly the characteristics of the body.” 13 While feel harmed by falsely manipulated images, Akdeniz goes on, expanding his definition to as seen in Meryern Ali’s 2014 lawsuit against Facebook over a jilted lover posting 12 Ashcroft, at 249, citing New York v. such manipulated images.15 But it is another Ferber, 458 US 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). 13 Yaman Akdeniz, Internet Child 14 Defamation: A Lawyer’s Guide § 1:7. Pornography and the Law: National and 15 Woman files $123M suit against International Responses, 20-21 (Ashgate Facebook over photoshopped nude photos, 2008). https://arstechnica.com/tech- The Phoenix Papers, Vol. 3, No. 2, March 2018 33 paper altogether to make or refute that clogged court systems, such considerations argument. For the purposes of this paper, it are of extreme importance, as seen in is enough that a pseudo child pornography situations like California’s Proposition 47, case has someone who could be called a which has led to the release of thousands of victim to remove it from the analysis of this inmates.20 This right not to be criminalized problem. is important to note because while With the topic limited in such a manner, decriminalization in general is growing in a plain statement of the argument can finally popularity, a trend that can be noted in fields be made: Virtual child pornography should such as abortion and marijuana legalization, be decriminalized, as real-world sex crimes remain one area where runaway justifications and theories of criminal justice criminalization is not only accepted, it is fail to support its continued criminalization. popular. 21 This popularity of sex offender While not explicitly recognized in the creation and vilification flies in the face of Constitution, the United States has always the principles of criminal justice this nation quietly recognized a right not to be was founded on, and should thus be resisted criminalized.16 Implicitly recognized by the unless good reason can be shown for it. 5th and 8th Amendments to the But why this particular controversy? Constitution, the right not to be criminalized Many reasons set virtual child pornography is simply the right of personal autonomy, to apart as worthy of decriminalization. First is do what one pleases as long as they bring no the distinct lack of public knowledge on this harm to another. 17 For an example of the controversy. Returning to the old Rule 34 right not to be criminalized at work, take a joke recounted earlier reveals an interesting look at Griswold v. Connecticut. 18 In this case, the Supreme Court outlines the right to 20 California prisons have released 2,700 privacy, looking to the 1st, 3d, 4th, 5th, and inmates under Prop. 47, 9th Amendments to extend to the people a http://www.sfgate.com/crime/article/Califor right to privacy, which when described in nia-prisons-have-released-2-700-inmates- terms of being “left alone” seems very much 6117826.php. 21 like a right not to be criminalized.19 In our Roe v. Wade, 410 US 113, 93 S. Ct. 705, current climate of prison overcrowding and 35 L. Ed. 2d 147 (1973); Marijuana Decriminalization and Its Impact on Use, http://norml.org/aboutmarijuana/item/mariju policy/2014/07/woman-files-123m-suit- ana-decriminalization-its-impact-on-use-2; against-facebook-over-a-photoshopped- Assembly to Pass Comprehensive revenge-porn/. Legislation to 16 Dennis J. Baker, The Right Not to Be Combat Human Trafficking, Criminalized: Demarcating Criminal Law’s http://assembly.state.ny.us/Press/20150316/; Authority, 1 (Ashgate 2011). Jill S. Levenson et al., Public Perceptions 17 Id., 9 and 12-13. about Sex Offenders and Community 18 Griswold v. Connecticut, 381 US 479, Protection Policies, 7 Analyses of Soc. 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 Issues & Pub. Pol’y 2 (2007) available at: (1965). https://www.innovations.harvard.edu/sites/d 19 Id. efault/files/105361.pdf. The Phoenix Papers, Vol. 3, No. 2, March 2018 34 problem, even with Google set to filter punishment is unknown at this time. Also explicit content, a pornographic image instructive is the prosecution of Christopher featuring Calvin and Hobbes is within the Handley, an American collector of Japanese first five results when conducting an image comic books known as manga, who has the search for “Calvin and Hobbes Rule 34.” distinction of being the first person Such ignorance is not isolated to old internet prosecuted under the PROTECT Act for jokes either: In a survey of adults conducted offenses stemming solely from possession of at crime watch meetings in two American virtual child pornography. 25 Handley’s cities, one-third of respondents agreed with prosecution is especially of interest because the statement “downloading child the items he was prosecuted for were not pornography from a newsgroup is legal” and collected for their obscene nature, but were eight percent of respondents believed that instead acquired for his larger manga “viewing computer-generated children in collection. Indeed, these successful sexual situations is okay.”22 This ignorance prosecutions under the PROTECT Act for is made all the more dangerous by the fact marginal content seem to be the norm rather that this is not a crime that, like Colorado’s than outliers. In his analysis of child old adultery statute repealed in 2013, is pornography prosecutions between 2002 and unenforced.23 Instead, this is a crime that is 2004, Akdeniz found three attempted uses of used to exact extensive punishments from a virtual child pornography defense in three people who are ignorant of the law. thousand child pornography prosecutions; Take the case of Danny Borgos and John none were successful. 26 Either these R. Farrar.24 Inmates at the federal prison in prosecutions represent a policy successfully Seagoville, TX, both men were found to be enacted into law, or people making innocent in possession of virtual child pornography mistakes concerning a law they do not inside the prison. Borgos had a 37-page understand. comic book and Farrar had six images. For The second reason virtual child his images, Borgos received an additional pornography should be decriminalized is the ten years in federal prison on top of his distinct lack of a victim. Thus far, most of original five-year sentence. Farrar’s the reasoning behind the continued criminalization of virtual child pornography

22 has been the same as that supporting the Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet, 98 (New York continued criminalization of all child Univ. Press 2001). pornography: The harm to the child. Julia 23 Bill To Repeal Of Colorado Adultery Law Signed [sic], 25 US Manga Obscenity Conviction Roils http://www.denverpost.com/politics/ci_2285 Comics World, 0726/bill-repeal-colo-adultery-law-signed. http://www.wired.com/2009/05/manga- 24 Two Federal Prisoners Face Additional porn/. Time for Possession of Comics, 26 Yaman Akdeniz, Internet Child http://cbldf.org/2015/11/two-federal- Pornography and the Law: National and prisoners-face-additional-time-for- International Responses, 136 (Ashgate possession-of-comics/. 2008). The Phoenix Papers, Vol. 3, No. 2, March 2018 35

O’Connell Davidson, in an extreme and children spread across a generation – example, likens pedophilia to necrophilia, beginning first in the child’s reliance on the and thus uses its impermanence to reason parent and ending in the aging parent’s that it is a search for permanence that drives reliance on the child – should be preserved child pornography: “[n]ecrophiliacs, like from harm at all costs. 29 Described by paedophiles, must lose what they love. The Davidson as the child’s “quasi-mythical dead body eventually decomposes and goes power of social linkage,” much is made of away, just as the child one day ceases to be a this relationship, as well as the fact that child and the once treasured union children are reliant upon parents to navigate vanishes.” 27 Davidson goes on to discuss the world through their parents, and are thus notorious serial killer Jeffrey Dahmer’s need in a position vulnerable to exploitation.30 to document his victims with photography While Davidson’s criticisms remain before continuing the analogy: valid for her main premise, focusing on children in the global sex trade, her In the same way, storing tape arguments ring hollow when applied to recordings, film, and photographs of virtual child pornography. First, in her sexual acts of great violence being creation of an analogy to Dahmer, especially perpetrated on small children when considered in light of her argument alongside images of milder molestation, perhaps also “ordinary” that child pornography is consumptive in pictures of children seems to drain nature, Davidson is approaching child the children and the adults involved pornography from the perspective of a of any meaning beyond the record of abuse. And when applied in that paedophilic fantasy. context, her argument is quite valid: Molesters often do use virtual child These collections make paedophilia pornography to cement their activity into – the idea of sex which is unthinkable, impossible, forbidden – something lasting. But virtual child into a graspable object, and, as such, pornography is not a record of anything real. something that can be controlled and Perhaps an argument can be made for managed, ordered, arranged and fantasy expression, but that is not the rearranged, devoured and spat out by argument Davidson is making. She is paedophilesm instead of something arguing from a perspective of a record of that consumes and then emits them. 28 abuse, and thus her argument fails to provide

much justification for criminalization of Davidson extends the harm to the child by virtual child pornography. broaching the idea that the parent-child Likewise, her criticism of sexual relationship is something that, due to the exploitation of children is lacking. The nature of mutual reliance between parents connections she cites are largely based in myth. While Americans generally connect to 27 Julia O’Connell Davidson, Children in The Global Sex Trade, 101 (Polity 2005). 29 Id., 18-19. 28 Id. 30 Id. The Phoenix Papers, Vol. 3, No. 2, March 2018 36 extended family through history, nothing in argument falls apart almost immediately due that connection implies any favoritism for to the observed effects of the internet on the the parental generation.31 In fact, the familial general market for child pornography. In unit has a history of sustained simple terms, there is no market anymore, fragmentation, rendering the logic of either for trade or for money. “The typical intergenerational links to be perhaps a bit of offender received and/or distributed child a spurious leap, at least when discussing the pornography using a P2P file sharing American family.32 program and not for financial gain. Most In any event, neither justification put offenders used open P2P file sharing forward by Davidson alleges anything in programs that did not require the offenders relation to a nonspecific victim when no to trade images in order to receive new physical abuse has been perpetrated. Her videos or images from another.” 34 The arguments are focused on situations where economic argument continues to fail, as real children are involved, and generally fail experts believe the market for child to justify any real reason for the continued pornography of any kind has moved almost criminalization of virtual child pornography. completely to an exchange model not even Another reason for the decriminalization requiring an infusion of new content: of virtual child pornography is a continuation of the analysis above: No One of the few studies of child argument used to justify its continued pornography found no evidence to criminalization without a focus on a victim support a common assumption that possession of child pornography presents an adequate justification for results in more production. In a criminalization. One book presents the national study of arrests for child abstract theory that creators of virtual child pornography production at two pornography might trade virtual images for different points in time (2000-2001 the real thing, an idea Charles Patrick Ewing and 2006), researchers found no fleshes out further into an argument that a evidence that child pornography marketplace exists for child pornography, production is increasing or that child pornography producers were and that every entrant into the market helps 33 targeting younger victims or violent to drive it via simple economics. This abuse. Perhaps more significantly, the data suggest that online 31 Steven Ruggles, The Transformation of distribution was not a motivation for American Family Structure, 103 Am. Hist. [child pornography] production. Rev. 105 (1994), Instead, a substantial number of http://users.pop.umn.edu/~ruggles/Articles/ [child pornography] producers AHR.pdf. appear to be creating images for their 32 Id., 107 33 Kerry Sheldon & Dennis Howitt, Sex Offenders and the Internet, 78 (John Wiley & Sons 2007); Charles Patrick Ewing, Policy Perspectives, 108 (Oxford Univ. Preventing the Sexual Victimization of Press 2014). Children: Psychological, Legal, and Public 34 Id. The Phoenix Papers, Vol. 3, No. 2, March 2018 37

own use and not for distribution or offending in any way. 37 The British and 35 trading. Canadian studies reported similar numbers. In the Canadian study, six percent of those If destroying the market incentive for child studied had another child pornography pornography is the purpose for anti-child offense, while one, total, had a future pornography legislation of any stripe, it 38 contact sexual offense. The British study appears to have done so. The internet has showed a re-offense rate of four percent for effectively destroyed the commercial market child pornography users, compared to a for child pornography that existed before the twenty-nine percent rate for those found inception of child pornography legislation 39 guilty of a contact offense originally. due to its open and free access to any media Another study conducted by psychologists someone is willing to share. When looking with the aim of determining the probability at these market forces in the context of of re-offending found some very surprising virtual child pornography, the trade market results about child pornographers. is nonexistent, having been destroyed by free exchange. Thus, the nonexistent [Child pornography] offenders marketplace invalidates the argument that appear to comprise a subgroup of sex virtual child pornography somehow helps to offenders characterized by support the market for real child taxonomic heterogeneity. Those pornography. apprehended with child pornography Ewing identifies another theory often have a sexual interest, if not a sexual preference, for children, and, given used to justify a continued prohibition of prevailing DSM criteria, are virtual child pornography, termed the frequently diagnosable as 36 “hands-on argument.” This argument is pedophiles… Paradoxically, this simple: That users of child pornography of group of pedophiles, as noted, is at any kind are more likely to abuse real low risk to commit hands-on sexual 40 children. This is a simple argument that fails assaults of children. on its face as soon as any research is A corollary to this argument is the general applied. Studies from Canada, Britain, and argument that viewing pornography makes a Switzerland of convicted contact sex person more likely to act based on the offenders and child pornography all show fantasies portrayed in the material they minimal levels of recidivism among the view. But as Sheldon and Howitt point out, child pornography offenders, especially research supporting this argument, where it when compared to the contact offenders. exists, is slim and can be interpreted to The Swiss study reported the highest rate of support either side of the argument.41 As a recidivism after a conviction with about four percent of child pornography offenders re- 37 Id., 111. 38 Id., 110. 39 Id., 111. 35 Id., 109. 40 Id., 113. 36 Id., 110. 41 Sheldon and Howitt, 9-10. The Phoenix Papers, Vol. 3, No. 2, March 2018 38 justification for continued criminalization, As previously discussed, there exists this is a weak argument, especially when little justification in terms of real-world virtual child pornography is considered. reasons for the continued criminalization of According to the research, persons using virtual child pornography. The real-world child pornography are extremely unlikely to justifications can be broken down into two actually engage in any kind of child abuse. basic categories: Those that support the The argument for criminalization based on continued criminalization of child an escalating offense just is not supported by pornography but fail to provide any reason the evidence, which illustrates that child to justify criminalization of virtual child pornography offenders are unlikely to pornography, and those that can provide no escalate their offense. justification for either argument. Davidson’s Another argument used to justify argument of harm to the child presents the criminalization of child pornography is best logic that can continue to support the termed “The Grooming Argument.” 42 This criminalization of child pornography in argument, like the Hands-On argument, is general. Yet it still fails to justify the simple: That child molesters will use images criminalization of virtual child pornography of child pornography to normalize abuse in due to the lack of a child to harm in a virtual the minds of their victims and diminish the environment: When viewed as a record of likelihood of reporting. This argument abuse, there is no reason to support suffers from two chief problems. Firstly, as criminalization when no abuse has occurred. detailed above, child pornography offenders The other arguments discussed here fall are extremely unlikely to have a contact into the second category: Arguments that do offense of any kind. “Paradoxically, this not support the continued criminalization of group of pedophiles, as noted, is at low risk any form of child pornography. Davidson’s to commit hands-on sexual assaults of argument for the integrity of the familial children.” 43 This is not to say such an bond is weak at best, relying on a familial offender is nonexistent, but no data exists to construction that, if it ever existed, was a support such a contention beyond anecdotal fleeting moment in history that has long evidence from people already in trouble for since passed. The marketplace argument a contact offense. One survey of 290 child may have been relevant thirty or forty years pornography possessors revealed that 76.6 ago, but advances in technology have long percent of responders had never shared child since invalidated the marketplace as any pornography with a child, and, while the justification for policy; any remaining lesser responses ranged from once to vestiges of a commercial market for child occasionally, there was no indication of any pornography are minimal and are likely frequent sharing of such material with untouched by any virtual creation. The children.44 hands-on argument fails as well, as all the data indicate the exact opposite: That child 42 Ewing, 113. pornography consumers are actually less 43 Id. likely to molest children. The grooming 44 Id., 114. The Phoenix Papers, Vol. 3, No. 2, March 2018 39 argument shows the same sort of data Utilitarians identify at least four deficiency. Actual molesters just do not fit major potential benefits of criminal into the same mold as consumers of child punishment: Specific deterrence, general deterrence, incapacitation, pornography. and rehabilitation. Specific If real-world considerations do not deterrence exists when punishment present a compelling argument for the deters the punished offender from decriminalization of virtual child committing criminal acts in the pornography, some theory of justice must. future. General deterrence refers to a But a utilitarian analysis of such an offense punishment’s effect of deterring not does not support continued criminalization. the offender herself but rather others who are similarly situated from In its most basic form, utilitarianism is committing the same or similar the concept of the most good for the most criminal acts in the future. . . people. A more detailed definition of the Incapacitation refers to the effect of concept can be stated thusly: imprisonment or the death penalty of removing the offender from society, In the notion of consequences the thereby preventing her from Utilitarian includes all of the good committing offenses. Finally, and bad produced by the act, whether rehabilitation refers to the arising after the act has been punishment’s possible effect of reforming the offender so she does performed or during its performance. 46 If the difference in the consequences not commit future offenses. of alternative acts is not great, some Utilitarians do not regard the choice Under a utilitarian logic, virtual child between them as a moral issue. pornography should not be a crime. While According to Mill, acts should be good arguments can be made for its specific classified as morally right or wrong deterrent effect, the general deterrent effect only if the consequences are of such is woefully out of balance with the results significance that a person would achieved. The same goes for incapacitation wish to see the agent compelled, not merely persuaded and exhorted, to and rehabilitation; while good arguments act in the preferred manner.45 can be made on both fronts, a larger utilitarian context leads to certain questions As a legal principle, this translates into a about whether the current course of action is balancing act performed between not only the best one. the good and the ill to the individual, but the As the data from Ewing’s examination good and ill to society as well. As illustrated of the issue indicate, the current state of by Tom Stacey: child pornography prosecution is quite successful at the utilitarian goal of specific deterrence. Recidivism among general child pornography offenders is extremely limited.

45 Utilitarianism, http://www.utilitarianism.com/utilitarianism. 46 Tom Stacey, Criminal Law: Cases and html. Materials, 22 (Jayhawk Ink, 2014). The Phoenix Papers, Vol. 3, No. 2, March 2018 40

If the goal of a well-crafted law is to deter or artistic merit. Both are standards with no people from committing the same offense inherent predictability, obscenity being again, then the current state of child subject to the moral whims of an ever- pornography prosecutions is good. Equally evolving community and merit being subject good is the logic for rehabilitation; to the whims of taste and politics. Perhaps according to Ewing’s data, child the only forms of virtual child pornography pornography offenders do not reoffend. The that can truly be predicted to be compliant problems from a utilitarian perspective arise with the law are items with scientific value. in the fields of general deterrence and If so, the logic behind the law is in conflict incapacitation. with the holding in Ferber, where the court For general deterrence to work, the specifically held that “We therefore cannot knowledge of the law must be something the conclude that the Miller standard is a average person understands and can make an satisfactory solution to the child informed decision around. In this field, the pornography problem.”47 law is anything but clear. Recall the story of The general deterrent purpose of the law Handley recounted earlier. While Borgos is also undermined by the global economy. and Farrar may not garner much sympathy Of note in Handley’s case is the fact that due to their status as inmates, Handley Handley was not importing illicit items from represents an interesting example, especially Japan. Everything he purchased and in fandom communities and to manga imported was legal in its place of origin. consumers. Prosecuted for his indiscriminate Japan has always had a different view on collecting, Handley’s case represents two this question than does the West. In Japan, a obstacles to any general deterrent purpose: genre of virtual child pornography, lolicon, The lack of a clear standard and the has found a niche, legally, as an expression interaction of the law with a culture it is not of masculine frustration with overtones of prepared to accommodate. ownership.48 The key aspect to note here is Put simply, the PROTECT Act is not a not just its legality in Japan, but its well-written law. Consisting of six expression of something overt and subsections, the law first outlines two noticeable in Japanese culture in this offenses that are identical in most senses, moment. If one is, as Handley was, with the difference stemming from the immersed in another culture through the “intent to distribute” language in subsection global reach of the internet and FedEx, (a) that is lacking in subsection (b). The law questions of legality and obscenity can get loses any semblance of clarity when it quite muddy, leaving the general deterrent incorporates the Miller test. While the incorporation of this test allows the 47 New York v. Ferber, 458 US 747, 761, PROTECT Act to withstand constitutional 102 S. Ct. 3348, 3357, 73 L. Ed. 2d 1113 challenges, it creates a continued failing (1982). where general deterrence is concerned. The 48 Catherine Burns, Sexual Violence and the law hinges on either a finding of obscenity Law in Japan, 32-33, (Routledge Curzon 2005). The Phoenix Papers, Vol. 3, No. 2, March 2018 41 effect of a law designed to control such Drawing a distinction between child things diminished, to say nothing of the pornography and its record of abuse and remaining land mine for other collectors and virtual child pornography with its genesis in consumers in America. the imagination is perfectly fine when Until now, this paper has concerned working in a theoretical space, such as a itself strictly with the federal statutes research paper. Practice is rarely as neat. governing virtual child pornography. But Here, the example of Borgos is instructive. when considering general deterrence, the Without causing any harm, Borgos’ sentence entire body of effective law a person must was trebled. Under a general deterrent logic, consider should be taken into account. In such a punishment is counter-productive. 2014, forty-nine states had their own statutes Ideally, a general deterrent would channel governing mere possession of child would-be offenders into areas with less pornography – Nebraska is the sole harm. But in this instance, the lesser harm exception.49 On the subject of virtual child offense, possession of virtual child pornography, these statutes are as diverse as pornography, was punished more severely Alaska’s, which carves out a specific than possession of actual child pornography. exception for virtual child pornography, and Since the law makes no meaningful Ohio’s, which is written broadly enough to distinction preferring the less harmful encompass not only visual materials, but offense, the general deterrent logic is written material as well.50 A full accounting undermined, as there is no incentive either of the laws of all fifty states is beyond the by carrot or stick to reduce criminal activity scope of this paper, but their interaction in to a less harmful level. the mechanics of general deterrence must be Just as the general deterrent purpose of noted, since the state one is in matters if the the PROTECT Act and similar laws is federal government declines prosecution or undermined by their attempt to encompass if the charge is one in a list of state charges. as much as possible, so, too, is the For this paper, it will be enough to say that incapacitory purpose of the law undermined in this modern, interconnected age, the by an attempt to encompass as much as varying laws of fifty-one separate state and possible. Ewing catalogs the reactions of federal jurisdictions in one nation alone federal judges to the state of sentencing, complicate matters when trying to make an referencing a 2010 survey of federal trial informed decision about one’s conduct judges: “69 percent of those who responded under the law, much less the added said penalty ranges for receipt of child complications of international distribution. pornography were too high; 70 percent said Another thought worth noting on the penalty ranges for possession offenses were subject of general deterrence is that the law too high.” 51 While the incapacitation as it is constructed encourages harm. purpose of the law is served in placing people in prison to prevent continued 49 Ewing, 103. offenses, this purpose should be balanced 50 Alaska Stat. Ann. § 11.61.127 (West); Ohio Rev. Code Ann. § 2907.321 (West). 51 Ewing, 106. The Phoenix Papers, Vol. 3, No. 2, March 2018 42 against the rehabilitative purpose, especially should endeavor to punish those who inflict since the expense of housing an inmate is so more harm – or more deprival of autonomy high. And, as Ewing’s other research – more harshly than those who inflict less indicates, the recidivism rate for users of harm. This principle clearly illustrates the child pornography is extremely low, making strongest argument in favor of the them excellent candidates for release. Thus, decriminalization of virtual child the mandatory minimums, as indicated by pornography, running like a thread through the surveyed trial judges, are out of the entirety of this paper: Virtual child alignment with the rehabilitative purpose of pornography produces no harm. Never is the the law, and serve little justifiable reason for rational autonomy of another impacted in a continued incarceration under an negative way by the use of virtual child incapacitation theory. After all, if pornography. rehabilitation works, a utilitarian should Recall the earlier real-world recognize that a productive member of justifications for criminalizing child society serves more good than an pornography in general, or virtual child incarcerated drain. pornography specifically: They either Finally, the harm principle does not revolved around incorrect assumptions, support the continued criminalization of outdated data, or on the assumption that virtual child pornography. An element of the there was a real person wronged in the retributivist approach to criminal justice, creation of the image. In child pornography, Tom Stacey describes the harm principle the images create a record of abuse for later thusly: and eternal consumption; recall Davidson’s Jeffrey Dahmer analogy. Virtual child [F]or a retributivist, the gravity of pornography creates nothing of the sort. the wrong depends partly on the In fact, the continued prohibition of degree to which the offender has virtual child pornography may even cause infringed upon the rational autonomy harm. Recall again the cartoon character’s of another person. Other things equal, homicide is worse than theft hapless encounter with Rule 34, or Handley. because homicide completely and Both are instances of conduct assumed to be forever extinguishes an individual’s innocent that could, or in Handley’s case freedom to make rational choices did, run the unwitting computer user or about how to live his life. In contrast, Japanophile afoul of a hard to predict law. theft merely deprives a person of The law is not written to be predictable, some of the means he relies upon in relying on the amorphous concept of making those choices and limits those choices.52 obscenity or the fickle tastes of a local community. The law is especially ill- While Stacey couches his argument in terms equipped to handle the local community’s of autonomy, he is articulating the harm intersection with a wider world of different principle in a nutshell: The criminal law values and strange ideas. Like Handley, a revulsion to something culturally significant 52 Stacey, 24. The Phoenix Papers, Vol. 3, No. 2, March 2018 43 but new and strange to another culture can database that aggregates user-submitted lead to a horrendous result. Rule 34 content and returns 365 images for Another method in which the law creates the search “Eric Cartman,” an eight year old harm is in the way it penalizes something character from Comedy Central’s South that could potentially be used to prevent Park54 – all of which per the PROTECT Act harm. An internet survey of “boy-attracted as applied in Handley’s case would be pedosexual males” determined that 84 highly illegal. Creators of such content percent of respondents found child should check with qualified counsel in their pornography to be a sufficient substitute for state to ensure they are not running afoul of seeking out boys in the real world, and the either state or federal laws with their fanart, same proportion explicitly said that using and owners of fanart sites should be more child pornography did not increase their vigilant in the enforcement of their rules urge to seek out boys in the real world.53 against virtual child pornography, lest they This benefit was derived from something find themselves a test case. terrible, the record of abuse left from the There is plenty that remains beyond the abrogation of another’s autonomy. But the scope of this project. While the solution this survey results point to another possibility. paper gestures towards would look What reductions could be made in the something like the Alaska statute mentioned exploitation of children if virtual child earlier, some explicit abrogation of liability pornography, created explicitly from the for the possession and production of virtual imagination, were available to help people child pornography, such a solution is likely with such urges control their lust? unworkable due to the popular opinion that An additional point that should be noted sex offenders deserve everything a state from this examination speaks directly to legislature wants to give them, and sex manga consumers and consumers of offenders that involved children receive Japanese culture, especially in this modern even less sympathy. A real solution would age of immediate availability of digital probably look more like the path that led to products and the unprecedented access to the PROTECT Act, a series of challenges to markets with different laws from the United Congress’s reasoning before the court, States. Be aware of the legality of what you culminating in a major decision that would are viewing where you are viewing it, start the entire process over again. Another especially on the internet. While many question worthy of its own paper is the aggregators of fanart use disclaimers and myriad examinations that could be made of site rules to discourage the posting of virtual state statutes. Nebraska’s lack of a statute child pornography, the immense popularity makes an excellent control for the of characters that are underage or even examination of the effects various statutes appear to be underage leads to no shortage have had. Finally, opening the door to fan- of available virtual child pornography – a created art of underage characters reveals an fact that can be seen in rule34.paheal.net’s 54 rule34.paheal.net. Full citation omitted. 53 Ewing, 112. Search at your own risk. The Phoenix Papers, Vol. 3, No. 2, March 2018 44 entire world for future exploration, with continued criminalization. A utilitarian implications of copyright laws, the rights of analysis indicates some interesting points for the underage to produce and possess what continued criminalization, but any benefit a would be obscenity for an adult as the utilitarian reasoning would have for sexting revolution rolls on, and the specter continued criminalization is lost in the of the Internet above it all, bringing a global questionable general deterrent and element to these examinations. All are incapacitation values, which owe their avenues for other papers. problems to short-sighted political realities. Virtual child pornography should be A retributivist perspective is especially decriminalized, as real-world justifications damning, as the harm inflicted by the law and theories of criminal justice fail to does not seem to be proportionate to the support its continued criminalization. Real- harm inflicted by the act; the law may even world rationales both that support the inflict much more harm than the act it seeks continued criminalization of child to punish. pornography and virtual child pornography fail to illustrate any compelling reason for

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