The right to pretend child porn

The US Supreme Court today rejected the latest challenge to that country’s latest child porn law, 7-2. 7-2?!! What on earth are the human rights arguments in favour of child porn? The answer, of course, is the right to freedom of expression:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kind…

Actually, there are few arguments – in the States at least – against obscene pornography, child or otherwise.  Such ‘speech’ is considered presumptively valueless and is only protected in narrow circumstances: high literary merit, war documentaries and the like. But not all porn is obscene. It all depends on where the camera is pointing. Nevertheless, even in the non-obscene category of pornography, everyone agrees that pictures or film of actual children in actual sexual situations is (or can be made) verbotten, on the rationale that such children have, by definition, been dealt with sexually – a hideous wrong and major criminal offence – and knowingly possessing such images (outside narrow special circumstances, like law enforcement or making a documentary) is a form of participation in that abuse.

But there’s a further more difficult category, which happens to be included in Victoria’s definition of child porn. Here’s what it’s illegal to produce, procure or possess in Victoria:

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

The problem category for free speech is a photo or film or computer image that isn’t obscene and doesn’t show actual children, but looks like it shows actual children in sexual situations. (A  ‘child’ for this purpose is a minor, i.e. up to 18 years old. There are some defences for young people who take pictures of themselves or let other young people take pictures of them.)

You may well say: yeeeech. But lots of TV shows and movies depict under 18 year-olds in sexual situations. They do so using adult actors who look young. Or trick camera work. Some computer games do the same virtually. But, unfortunately, those not-so-fine folks who trade in child porn also sometimes use pretend child porn, either because they are trying to evade anti-porn laws, or because they are trying to defraud others, or because they find it stimulating. Once again, yeeeeech. As well, law enforcement people use pretend child porn to try to entrap people who are after real child porn.

Even though no children are actually harmed – or even involved – there are certainly some arguments against pretend child porn.  It may cause people to target actual kids. It may traumatise people who see it. As well, people caught with real child porn may find it easy to raise a reasonable doubt about whether or not it is actual child porn. Maybe the ‘kids’ were actually adults? Or maybe it was all clever photo-stopping? Such arguments are presumably behind Victoria’s ban. But the top courts of the US and Canada have both held that such laws infringe freedom of speech. Not, mind you, because they are great fans of the genre. But rather because they are worried that the boundaries of non-obscene pretend child porn cross into lots of less reprehensible works, like ‘artistic’ pictures of naked kids or every fifth episode of Home and Away or every freaking episode of Law and Order: SUV.

Now, Victoria’s child porn possession offence has three defences that are intended to cover these sorts of things:

70(2) It is a defence to a prosecution for an offence against subsection (1) to prove-

(a) in the case of- (i) a film; or (ii) a photograph contained in a publication; or (iii) a computer game- that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+; or

(b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose;

(c) that the defendant believed on reasonable grounds that the minor was aged 18 years or older…

But these sorts of defences aren’t enough for North American free speech ideals. The first one is limited to formal publications, while the North American courts think amateurs – or, in Canada, just private doodlers – should be equally protected. Also, it depends on decisions by a politcally appointed body. And, it’s not exactly easy to work out in advance how those decisions will go. It’s a bit tough making a major crime’s definition depend on something like that. The second defence lacks the formal classification scheme but still is lmiited to the respectable side of the publications world and the foibles of distinguishing merit from lack of merit. Home and Away? The deficiencies in the first two defences are the reason why the third defence isn’t good enough in North America either.

So, it’s clear that Victoria’s law on possessing pretend child porn would be unconstitutional in North America. But here? There’s no question of the law’s validity, but could it be the subject of re-interpretation or a declaration of inconsistent interpretation?Well, the Charter’s right to freedom of expression has a built in limitation for laws to protect public order and public morality. However, such laws must be ‘lawful restrictions reasonably necessary’ to achieve those ends. Maybe Victoria’s offences satisfy that test, maybe not. Charter s. 7(2), allowing reasonable limits on rights, doesn’t add much to this equation.

The Canadian Supreme Court was willing to allow a ban on possession of pretend child porn that was not for private use. Today’s US Supreme Court decision provides a different out. Responding to the earlier decision striking down a pretend child porn possession law, Congress responded with the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act. That title is obviously brought to us by the same tools who came up  with the Uniting and Strengthening Amercia by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. Talk about crimes against humanity. Anyway, here’s the new offence:

Any person who… knowingly… advertises, promotes, presents, distributes, or solicits… any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—… (ii) a visual depiction of an actual minor engaging in sexually explicit conduct, …shall be punished…

Notice that this covers pretend child porn. But, in  today’s decision, the US Supreme Court interpreted the provision as requiring that the defendant either be seeking real child porn or be wanting someone else to think that what is on offer is real child porn. (Another part of the provision covers people who try to pander obscene child porn, pretend or otherwise, whether it turns out to be obscene or not.) The majority held, it’s OK to criminalise such transactions, even if there’s no real child porn – or any porn at all –  involved, because the request or offer is one that purports to be criminal. Such knowingly illegal speech isn’t protected by freedom of expression. So, they upheld the provision. (They also rejected a complaint against the ‘belief’ language. Maybe it’s hard to prove when someone believes something, but that’s a problem for criminal prosecutors. There’s no great difficulty in understanding the difference.)

The dissent was dubious about this out. If possessing pretend child porn is an exercise in freedom of expression – whether you think it’s real or not – then why is asking for it or offering it not protected? No children have been hurt, either way. The majority‘s response was that it’s OK to criminalise people for what they think they are doing:

There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.

This (controversial) general principle also appears in Victorian law:

321M(2) For a person to be guilty of attempting to commit an offence, the person must- (a) intend that the offence the subject of the attempt be committed; and (b) intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place.

(3) A person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible.

But the PROTECT Act actually goes further than this, because it also covers defendants who know that the pretend child porn is pretend child porn but try to get others to think that it’s real. In other words, there’s a crime either if you mistakenly think you’re doing something illegal or you try to make someone else mistakenly think that they’re going to do something illegal.

As already discussed, the Victorian offence is about possesssion, not transactions, and it provides a defence for people who know that pretend child porn is exactly that. But it could be stretched to cover the situation dealt with by the American law, because it’s an offence to incite someone else to commit an offence:

321G(1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by- (a) the person incited; (b) the inciter; or (c) both the inciter and the person incited- if the inciting is acted on in accordance with the inciter’s intention, the inciter is guilty of the indictable offence of incitement.

So, this provision covers someone who knows that the porn is pretend child porn but tries to make another person (who they intend to possess it) think that it is real. The incitement offence also has similar provisions to those above governing impossible attempts, so it also covers somone who  is unaware that, say, they are dealing with a police officer who knows that the porn isn’t real. Weirdly, in the United States, Victoria’s possession law would itself be incompatible with freedom of expression, but the combination of that law with the offences of incitement and attempt would be compatible.

Of course, the makers of Home and Away and Law and Order:SUV presumably neither think that their actors are minors nor want their viewers to think the actors are minors. Presumably. If not, they always have that defence of artistic merit to fall back on…

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