The right to the Simpsons

Today’s headlines bring news of what we are told are some of the worst child pornography videos AFP officers have ever seen and the startling angle that ‘a retired Victorian QC’ is among those arrested.  We will, of course, never see those videos, nor is there any legitimate reason to think that anyone would want to, outside of the prosecution and defence of those offences.

But this week has also brought two other stories about materials alleged to consist of child abuse (here and here):

A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography. In a landmark finding, Justice Michael Adams today upheld a decision convicting a man of possessing child pornography after the cartoons, depicting characters modelled on Bart, Lisa and Maggie engaging in sex acts, were found on his computer. The main issue of the case was whether a fictional cartoon character could “depict” a “person” under law. “If the persons were real, such depictions could never be permitted,”Justice Adams said in his judgement. “Their creation would constitute crimes at the very highest end of the criminal calendar.”

Queensland Police say it is a crime for anyone to even watch a viral video of a man swinging a baby around a room. Chris Illingworth, 60, a father of four from Maroochydore, was charged after he posted the video, which he stumbled across on YouTube, on an internet site. The video, which shows the man swinging the baby by the arms, was broadcast on US television and has been viewed by hundreds of thousands of people online. Illingworth’s home was raided after he posted the clip on Liveleak. He was charged with using the internet to access and publish child-abuse material. The charge has proven controversial because the baby – reportedly part of a Russian circus family – is shown laughing and smiling at the end of the clip… In a statement, Queensland Police said the term “child-abuse material” even extended to clips in which a child “appears” to be a victim of cruelty.

Having heard the descriptions of these videos, I have no interest in seeing them. But, that being said, I cannot, for even a second, regard people who do want to see them as wanting to harm anyone or otherwise deserving of anything other than wowserish condemnation. Moreover, and here’s a tricky catch, there’s clearly no way for anyone who doesn’t trust the above descriptions to check if they are correct or not, or to otherwise test whether my judgment on harm is correct: just looking at either of them, and in particular, possessing them on your computer, is a major crime that could land you in enormous and life-long trouble.

The culprit is the definitions that appear in the Commonwealth Criminal Code:

“child abuse material” means: (a) material that depicts a person, or a representation of a person, who: (i) is, or appears to be, under 18 years of age; and (ii) is, or appears to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (b) material that describes a person who: (i) is, or is implied to be, under 18 years of age; and (ii) is, or is implied to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

“child pornography material” means: (a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who: (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); …  ; or (c) material that describes a person who is, or is implied to be, under 18 years of age and who: (i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons);… does this in a way that reasonable persons would regard as being, in all the circumstances, offensive…

Sections 474.19, 20, 22 & 23 create offences of downloading, uploading and possessing such internet-sourced material, punishable by ten years imprisonment and (presumably) attracted a host of secondary sanctions, not to mention headlines for the famous. 

I’ve previously covered a number of issues when it comes to such material. One narrow one is that children – a definition that extends to 17 year-olds – may produce this material and possess it themselves.  Another, the subject of major decisions overseas, is that ban on apparent, rather than actual, child porn or child abuse material, ranging from sophisticated computer generated images to simple doodling. As such material does not piggyback on actual abuse of children, any ‘reasonable limits’ justification for banning it must rest on the consequences of mere possession and viewing. The United States and Canadian Supreme Courts, by different routes, have held that it is contrary to the right to free speech to ban mere posession of fake porn, as opposed to trying to pass it off to others. A third, raised prominently by the Henson case, is that some material within these definitions may nevertheless have artistic (or some other) merit.

This week’s cases raise the latter two issues. In the case of Simpsons video (definitely) and the Liveleak video (arguably), no child is being harmed. Rather, the police’s case comes down to the ‘appearance’ of harm, something that is clearly caught by the above definitions. Given that, the sole apparent defence for possessing such material (or attempting to possess it) is whether or not ‘reasonable persons’ would regard the videos as being ‘offensive’.  Here’s the Criminal Code‘s take on offensiveness:

473.4 The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the material; and (c) the general character of the material (including whether it is of a medical, legal or scientific character).

Now, I have absolutely no idea whether or not either video meets this standard. The Simpsons video sounds like it won’t, of course, but that depends on how accurately it has been described. It it all just cartoon sexual abuse? Or is there some sort of ‘context’ – the trademark humour of the ‘real’ Simpsons – that might attenuate or even remove any offensiveness? As for the Liveleak video, what is described sounds much like just about ever ‘Funniest Home Video’ I’ve ever seen (and, you may recall, that programme had very high ratings.) But, of course, no-one surely would dare to check. Quite the chilling effect. (The issue of whether quite different material, statements to police during a criminal investigation, are child abuse material, and in particular, offensive, has recently been before the courts: see here, here and – a cliffhanger! –  here.)

But, as you can see, I have taken a dare, albeit one that is taken by Channel Ten most nights. If you combine the ruling in the Simpsons case (which dismissed the defendant’s argument that Bart, Lisa and Maggie – apparently anatomically correct, apart from the number of fingers – don’t ‘appear to be’ people) and the Queensland cops’ quite sound interpretation of ‘child abuse material’, then is seems clear enough that quite a lot of images from the Simpsons would be within the defintiions, but for the ‘offensiveness’ point. Surely, you might say, the Simpsons will easily satisfy that definition? Well, that presumably is true in general, but there certainly are some dud episodes and scenes, especially in the later seasons. Moreover, some people just don’t like the Simpsons at all, and their reasons may not even be related to the ‘child’ abuse. And, even if the Simpsons passes all the test, what about South Park? And, just in case you think the criminal law will protect people who unwittingly commit such offences, there’s some truth in that, but the relevant fault element provided for is ‘recklessness’, which you have if you are aware of a ‘substantial risk’ that it is ‘unjustifiable’ to take.

The Commonwealth’s silly definitions and, presumably, the behaviour of state police in ‘giving effect to’ them, is beyond the reach of human rights law (for now) and the Constitution’s limited freedom of political communication (see here, though some Simpsons and South Park Episodes might qualify.)  Victoria’s definition of child pornography would seem to cover the Simpsons sex video and lacks any offensiveness test  (but the possession offence has an artistic merit defence but only for fake porn.) There is no equivalent offence in relation to child abuse material, so it’s OK to put pictures of Homer stangling Bart on your bedroom wall. As for putting such images on your facebook wall, Victoria’s local enforcement of the Commonwealth’s classification rules in online settings bans both child pornography (with a general ‘objectionable’ requirement, but no artistic defence) and ‘objectionable’ material more generally, defined in part as:

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; or (b) lacks serious literary, artistic, political, educational or scientific value and describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that a reasonable adult would generally regard as unsuitable for minors; or * * * * * (d) promotes, incites or instructs in matters of crime or violence; or (e) is classified RC or would, if classified, be classified RC;

There’s presumably a deal of room there for interpretations that are (at least somewhat) compatible with the Charter’s right to freedom of expression.