Making Imaginary Sex Illegal

[Alan Olsen <root@nwdtc.com>]

http://www.wired.com/news/news/politics/story/5153.html

Making Imaginary Sex Illegal

by Ashley Craddock 
12:05pm  14.Jul.97.PDT Is there such a thing as child porn which doesn't
involve children? Logic would say no, but adherence to the rules of
reason has never been a hallmark of the United States Congress,
particularly when it comes to hot-button issues like child protection. 

So maybe it shouldn't be surprising that Congress has made it a
criminal offense to depict non-obscene, sexually explicit material
involving anyone who "appears to be" a minor. Maybe it shouldn't be
surprising that it made it a criminal offense to advertise materials in
any way that "conveys the impression" that minors will be sexually
depicted. 

But what about the fact that Congress explicitly designed the law to
make computer-simulated child porn illegal? 

"Besides the completely unconstitutional prohibition on using young
adult actors, we're basically talking about criminalizing
pseudo-pornography," says William Bennett Turner, a San Francisco
First Amendment specialist. "I laughed when I first read that Congress
was trying to make imaginary sex illegal. I never thought the law
would pass." 

But in a climate in which the US president can seriously tout the myth
that fashion photography kicked off a heroin craze among teenagers
jonesing to jump on the fastest, hippest bandwagon, the Child
Pornography Protection Act was a sure shot. And at the end of 1996,
the law quietly made it a felony to engineer, sell, or even posses
computer-simulated images of smutty kids, or sexually explicit
depictions of real baby-faced adults. 

The rationale behind the Child Porn Act, introduced by Senator Orrin
Hatch (R-Utah), is by and large unoriginal: Pedophiles can use child
pornography - or anything that looks like child porn - to seduce kids.
Moreover, child porn, whether it depicts real kids, childlike adults, or
computer simulations of kids, makes pedophiles a little too hot and
bothered for society's good. But the age of morphing added a new twist
to the old arguments. When perverts can whip up sexual turn-ons
from composites of photographs of children or even from computer
graphics programs, argued supporters, a new child-porn definition is
crucial. 

Whether those computer-age fears have any more basis in reality than
your average monster-in-the-closet didn't seem to matter one whit
to Congress. Testimony that the Department of Justice had "not come
across any pedophiles who have actually used the morphing technology"
didn't slow the bill's passage. Neither did testimony by another
witness, Jeffrey Dupilka of the US Postal Service, who voiced his
official opinion that pedophiles "probably" knew about morphing
technologies, and were "most likely" using them, but that he didn't
"know for sure." No more concrete evidence made its way into Congress
before the bill passed. 

Now, anyone in possession of child pornography could face up to five
years in prison - more if they're repeat offenders. Producers and
distributors could face up to 30 years in jail for repeat offenses. 

Alarmed by the Child Porn Act's ramifications for films that cast
young actors as sexually active kids (before your favorite porn flick,
think Lolita or Romeo and Juliet) the adult entertainment industry
responded almost immediately. In January, the Free Speech Coalition
filed a brief against Attorney General Janet Reno, contending that the
government had far overstepped the First Amendment. 

The acting judge decided against a trial. Both parties, he announced,
could file briefs in support of their position. So on Friday, the
parties
filed their arguments in the United States District Court in San
Francisco. 

As the case has evolved, the government has moved toward the stance
that it didn't really mean to outlaw sexually explicit images of young
adults who might look like kids. What it meant to do was protect the
world from explicit kiddie morphs. 

It's a ridiculous position, argues Turner. So along with the American
Civil Liberties Union, last week he filed an amicus brief in support of
a
Free Speech Coalition's suit. "There is a real difference between
touching children sexually and touching computer keys to create
images: the former is wrong in itself and within the power of
government to prohibit; but there is nothing inherently wrongful
about using either a computer or adults to create sexually explicit
images," the document contends. 

The court is scheduled to hear oral arguments from both sides 8
August.