Legal Kids Porn

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Child pornography are laws in the United States specify that child pornography is illegal under federal law and in all states and is punishable by up to 20 years' imprisonment or fine of $5000. The Supreme Court of the United States has found child pornography to be outside the protections of the First Amendment to the United States Constitution.[1] Federal sentencing guidelines on child pornography differentiate between production, distribution, and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12.[2] U.S. law distinguishes between pornographic images of an actual minor, realistic images that are not of an actual minor, and non-realistic images such as drawings. The latter two categories are legally protected unless found to be obscene, whereas the first does not require a finding of obscenity.
Child pornography under federal law is defined as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law.[3] The United States Court of Appeals for the Second Circuit has held that images created by superimposing the face of a child on sexually explicit photographs of legal adults is not protected speech under the First Amendment.[4]
Notably, the age of consent for sexual activity in a given state is irrelevant; any depiction of a minor under 18 years of age engaging in sexually explicit conduct is illegal. Federal prosecutors have secured convictions carrying mandatory minimum sentence of 15 years of imprisonment for producing visual depictions of individuals above the legal age of consent but under the age of 18, even when there was no intent to distribute such content.[5] The legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive.[3]
Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A). Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law.[3]
Federal jurisdiction is implicated if the child pornography offense occurred in interstate or foreign commerce. This includes, for example, using the U.S. Mails or common carriers to transport child pornography across state or international borders. Federal jurisdiction almost always applies when the Internet is used to commit a child pornography violation. Even if the child pornography image itself did not travel across state or international borders, federal law may be implicated if the materials, such as the computer used to download the image or the CD-ROM used to store the image, originated or previously traveled in interstate or foreign commerce.[3]
In addition, Section 2251A of Title 18, United States Code, specifically prohibits any parent, legal guardian or other person in custody or control of a minor under the age of 18, to buy, sell, or transfer custody of that minor for purposes of producing child pornography.[3]
Lastly, Section 2260 of Title 18, United States Code, prohibits any persons outside of the United States to knowingly produce, receive, transport, ship, or distribute child pornography with intent to import or transmit the visual depiction into the United States.[3]
Under federal law, finding of guilt on most child pornography related offenses carry severe consequences, such as mandatory minimum sentences of several years and registration as a sex offender.
A first time offender convicted of producing child pornography under 18 U.S.C. § 2251, face fines and a statutory minimum of 15 years to 30 years maximum in prison.[3][6][7]
Child pornography offenses for transportation (including mailing or shipping), receipt, distribution, and possession with the intent to distribute or sell child pornography offenses each carry a mandatory minimum term of 5 years of imprisonment and a maximum term of 20 years.[3][7]
Simple possession of child pornography is punishable by up to 10 years in federal prison, but does not carry a mandatory minimum term of imprisonment. If a defendant has a prior federal or state conviction for one or more enumerated sex offenses, the penalty ranges are enhanced.[7]
Federal sentencing guidelines provide for higher sentences based on the number of images possessed or distributed, whether the victims were 12 years of age or younger, whether the material is "sadistic," and other factors.[8]
Under the Crime Victims' Rights Act (CVRA), 46 codified at 18 U.S.C. § 3771, federal law enforcement officials must notify a child pornography victim (or his or her guardian if the victim is still a minor) each time the officials charge an offender with a child pornography offense related to an image depicting the victim. Such notifications can be emotionally traumatic.[9]
In the United States, pornography is considered a form of personal expression governed by the First Amendment to the United States Constitution. Pornography is generally protected speech, unless it is obscene, as the Supreme Court of the United States held in 1973 in Miller v. California.
Child pornography is also not protected by the First Amendment, but importantly, for different reasons. In 1982 the Supreme Court held in New York v. Ferber that child pornography, even if not obscene, is not protected speech. The court gave a number of justifications why child pornography should not be protected, including that the government has a compelling interest in safeguarding the physical and psychological well-being of minors.
The initial iteration of 18 U.S.C. § 2257, first passed in 1988, mandated that producers of pornographic media keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a rebuttable presumption that the performer was a minor. Pub. L. 100-690. This version was struck down as unconstitutional under the First Amendment in American Library Association v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989), vacated as moot, 956 F.2d 1178 (D.C. Cir. 1992).
After Thornburgh, Congress amended 2257 to impose direct criminal penalties for noncompliance with the record-keeping requirements. The same plaintiffs challenged the amended statute and accompanying regulations, but the new version was upheld in American Library Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994).
In Sundance Association, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted". 18 U.S.C. § 2257(h)(3).
However, after 2257 was amended in 2006 by the Adam Walsh Act, the court ruled that Sundance's restrictions no longer applied to the amended statute and generally ruled in the government's favor on its motion for summary judgment. Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2006).[10]
Simulated child pornography was made illegal with the Child Pornography Prevention Act of 1996 (CPPA). The CPPA was short-lived. In 2002, the Supreme Court of the United States in Ashcroft v. Free Speech Coalition held that the relevant portions of the CPPA were unconstitutional because they prevented lawful speech. Referring to Ferber, the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children".
In response to the demise of the CPPA, on April 30, 2003, President George W. Bush signed into law the PROTECT Act of 2003 (also known as the Amber Alert Law).[11]
The law enacted 18 U.S.C. § 1466A, which criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting" that "depicts a minor engaging in sexually explicit conduct and is obscene" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value.[citation needed]
In November 2005 in Richmond, Virginia, Dwight Whorley was convicted under 18 U.S.C. sec. 1466A for using a Virginia Employment Commission computer to receive "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males".[12][13][14] He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.[15]
On December 18, 2008, the Fourth Circuit Court of Appeals affirmed the conviction.[16] The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists [sic]". Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.[17][18]
The request for en banc rehearing of United States v. Whorley from the Court of Appeals was denied on June 15, 2009. A petition for writ of certiorari was filed with the Supreme Court on September 14, 2009, and denied on January 11, 2010, without comment.[19]
The PROTECT Act also amended 18 U.S.C. § 2252A, which was part of the original CPPA. The amendment added paragraph (a)(3), which criminalizes knowingly advertising or distributing "an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct". The law draws a distinction between obscene depiction of any minor, and mere depiction of an actual minor.
The bill addresses various aspects of child abuse, prohibiting some illustrations and computer-generated images depicting children in a pornographic manner.[20][21][22] Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996 were ruled unconstitutional by the U.S. Supreme Court in 2002 on the grounds that the restrictions on speech were not justified by a compelling government interest (such as protecting real children). The provisions of the PROTECT Act instead prohibit such material if it qualifies as obscene as defined by the Miller test; the Supreme Court has ruled that such material is not protected by the First Amendment.
In May 2008, the Supreme Court upheld the 2003 federal law Section 2252A(a)(3)(B) of Title 18, United States Code that criminalizes the pandering and solicitation of child pornography, in a 7–2 ruling penned by Justice Antonin Scalia. The court ruling dismissed the United States Court of Appeals for the 11th Circuit's finding the law unconstitutionally vague.[23][24] Attorney James R. Marsh, founder of the Children's Law Center in Washington, D.C., wrote that although the Supreme Court's decision has been criticized by some, he believes it correctly enables legal personnel to fight crime networks where child pornography is made and sold.[25] Child pornography is illegal in the US and is not looked at in terms of the typical guidelines of the First Amendment, due to the assumption that it always harms children when it is made, sold, and/or owned.[citation needed]
In 1994, the U.S. Court of Appeals for the 3rd Circuit ruled in United States v. Knox that the federal statute contains no requirement that genitals be visible or discernible. The court ruled that non-nude visual depictions can qualify as lascivious exhibitions and that this construction does not render the statute unconstitutionally overbroad.[26]
In 2014, the Supreme Judicial Court of Massachusetts found that certain photos of nude children, culled from ethnographic and nudist publications, were not lascivious exhibitions and hence were not pornographic; the court ordered dropping of charges against a prisoner who had been found in possession of the photos.[27]
In at least one instance, in North Carolina, teenagers in the United States have been prosecuted as adults for possession of images of themselves. As of September 2015 twenty states had enacted "Romeo and Juliet laws" which decriminalized such consensual activity with respect to oneself and other teenagers.[28][29]
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For broader coverage of this topic, see Legality of child pornography.
Legal frameworks around fictional pornography depicting minors vary depending on country and nature of the material involved. Laws against production, distribution and consumption of child pornography generally separate images into three categories: real, pseudo, and virtual. Pseudo-photographic child pornography is produced by digitally manipulating non-sexual images of real children to create pornographic material. Virtual child pornography depicts purely-fictional characters (for example, lolicon manga). "Fictional pornography depicting minors", as covered in this article, includes these latter two categories, whose legalities vary by jurisdiction, and often differ with each other and with the legality of real child pornography.
Some analysts have argued whether or not cartoon pornography that depicts minors is a victimless crime.[1][2] Laws have been enacted to criminalize "obscene images of children, no matter how they are made", for inciting abuse. Currently, countries that have made it illegal to possess (as well as create and distribute) sexual images of fictional characters who are described as or appear to be under eighteen years old include New Zealand, Australia, Canada, South Africa, South Korea, and the United Kingdom.[3] The countries listed below exclude those that ban any form of pornography, and assume a ban on real child pornography by default.
All sexualized depictions of people under the age of 18 are illegal in Australia, and there is a "zero-tolerance" policy in place.[4]
In December 2008, a man from Sydney was convicted of possessing child pornography after sexually explicit pictures of child characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[5] Controversy arose over the perceived ban on small-breasted women in pornography after a South Australian court established that if a consenting adult in pornography were "reasonably" deemed to look under the age of consent, then they could be considered depictions of child pornography.[citation needed] Criteria described stated "small breasts" as one of few examples, leading to the outrage. Again, the classification law is not federal or nationwide and only applies to South Australia.[6]
Canadian laws addressing child pornography are set out in Part V of the Canadian Criminal Code, dealing with Sexual Offences, Public Morals and Disorderly Conduct: Offences Tending to Corrupt Morals. Section 163.1 of the Code, enacted in 1993, defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", that "shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity", or "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".[7] The definitive Supreme Court of Canada decision, R. v. Sharpe, interprets the statute to include purely fictional material even when no real children were involved in its production.
There have been at least three major cases brought up against the possession of fictional pornography within the last two decades. In April 2010 visiting American citizen Ryan Matheson (aka Brandon X[8]) was arrested in Ottawa for bringing erotica based on Lyrical Nanoha.[9][10] By October 2011 he was charged with possession and importation of child pornography and faced a minimum of 1 year in prison.[11] The next case occurred in 2014 where a man from Nova Scotia was sentenced to 90 days after pleading guilty of possessing mostly anime images. Roy Franklyn Newcombe, 70, pleaded guilty to the charge after a NSCAD student found a USB thumb drive with sexually explicit images and videos at a computer lab in April 2014. There was no indication the images involved local people or had been manufactured by Newcombe. Most of the 20 images were anime, although a few appeared to be of real girls between five and 13 years old.[12] The most recent case occurred in Alberta when on February 19, 2015 the Canada Border Services Agency intercepted a parcel and arrested its recipient on March 27. Based on the box art of a sculpture being shipped to him, four charges were pressed: possession/distribution, mailing obscene matter and smuggling prohibited goods. These charges were withdrawn as part of a plea deal when the accused agreed to a peace bond.[13]
The possession, storing, fabrication or distribution of child pornography or any other kind of sexually explicit pedophile material is illegal under Ecuadorian law.[14]
Fictional child pornography is illegal in Estonia per article 178 of the Penal Code. This law does not apply to Estonian citizens who legally commit the offense abroad.[15]
Since a reform of the French penal code, introduced in 2013, producing or distributing drawings that represent a minor aged less than 15 years old is considered the same as producing real child pornography and is punishable by up to five years' imprisonment and a €75,000 fine, even if the drawings are not meant to be distributed.[16][17]
Virtual child pornography is illegal in Ireland per the Child Trafficking and Pornography Act of 1998 which includes
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