By Duncan T. Brown1

Tuesday, April 17th, the Supreme Court handed down a decision striking down the elements of the Child Pornography Protection Act2 (CPPA) that criminalized the possession, distribution or creation of “virtual” child pornography.3 The Court based its ruling on three basic points: 1) The law was too broad and criminalized harmless images that bore no relation to pornography, such as the movie “American Beauty.”4 2) The law was too broad and not only placed too high a burden on the defendant to prove, but also was irrelevant because virtual child pornography was a legal and logical alternative to actual child pornography. 3) The Court refused to recognize a direct link between the consumption of virtual child pornography and the sexual exploitation of children. Because the Court reached these three conclusions, a law that adequately addressed present crimes and anticipated future ones was improperly struck down.

Despite the fact that the ruling does little to aid law enforcement, and does even less to protect children now and in the future, it cannot be avoided or ignored during prosecution. Fortunately, the ruling does not make prosecuting child pornography involving real children more difficult; in some circumstances, it opens the door for additional prosecution. This Update offers some suggestions for prosecutors for how best to live with the decision until new law is made. As always, when faced with bad law prosecutors and investigators must think creatively and find alternative ways to apply existing law to cover the gaps.

The Creation of the Affirmative Defense—Not Showing Who, Just Proving If

The Court held that the defense of “virtual child pornography” is now viable,5 however it did not discuss whose burden it is to prove that the images are, in fact, virtual. Optimistically, the Court’s ruling could be interpreted to require that this is an affirmative defense that must be proven by the defendant. Unfortunately, according to prosecutors in states that have been living under the burden of the Ninth Circuit, whose ruling inspired the High Court,6 the burden to show that the pornography in question is of actual children and not virtual rests with the state. Therefore, the burden at trial falls on the state to show that the children depicted in the pornography are actual children, and not products of computer graphic design. This can be done through investigation of child pornography archives, investigation of the defendant’s community, or consultation with a physician.

Many of the computer-altered images of children that are used in what the Court calls virtual child pornography are images of actual, identified children taken from pornographic magazines from the 1960’s, 70’s, and 80’s. The Customs Service, F.B.I., and the U.S. Postal Inspectors can help local law enforcement agencies identify which images are borrowed from magazines in their files. Likewise, many computer generated pornographic images come from larger series of pornographic photos featuring actual children. One of the more infamous series of images are the Helen and Gavin series.7 Thus, once the subject of the series is identified as an actual child, as both Helen and Gavin have been, law enforcement can proceed with the case.

Second, because child pornography is prohibited material, defendants who create their own pornography, or who trade with others in the same town or geographic area often do not stray far for their subjects. Because creating child pornography requires a level of trust between the victim and the pornographer, often the victims are physically or, through coercion or secrecy, emotionally close to the defendant. The children used to create the pornographic images may even be under the same roof as the defendant. Children, relatives or neighborhood children are easily exploited because they are convenient, they already have a trusting relationship with the defendant, and they can be monitored afterwards to make sure they do not report the incident. For these reasons, investigators should also view area school yearbooks, photos of teams from sports leagues or other youth groups, or portfolios from local modeling agencies.

Finally, if the defense claims that the pornography is actually of an adult who just looks young, the state can use expert testimony to demonstrate the age of the subject. Although Federal courts have accepted Tanner staging,8 it is often unnecessary to introduce an expert on the subject. Because the Federal Rules of Evidence allow for lay testimony on a variety of subjects including age,9 a pediatrician can testify about the age of the victim in a photograph without having to be qualified. The next section addresses what to do if the image is not exclusively of one child.

Morphing and manipulating photographs of actual children

The Court’s decision did not address, nor did it alter, the language of the CPPA that deals with morphed or composite images.10 Morphed images contain parts or pieces of several images that are morphed, or pasted, together to form one complete image. For instance, if a computer user took the head of Snoopy and digitally pasted it onto the body of a horse, the resulting Snoopy-headed horse would be considered a morphed image. In the world of child pornography it is common for defendants to create morphed pornographic images containing pieces of children they know or desire.

Experts in image creation or quality can be qualified to discuss whether an image has been altered or morphed; when images are cut and pasted onto one another, they leave telltale signs of editing. For example, an expert could testify that a subject who fails to cast an adequate shadow was likely added or manipulated by computer. Similarly, skin tones and lighting vary from person to person and photograph to photograph, it is almost impossible that two people will appear to have the same skin quality. Discrepancies in shading can be revealed by enlarging and examining the photograph in question. Although this process is laborious and increasingly difficult without highly technical equipment, finding variations in shading is one way to prove that an image is not truly virtual, but rather a compilation of actual and virtual images.

If a case involves images that contain any part of an actual child, even if the rest of the image is digitally created, the prosecution should aggressively proceed with the case. The prosecution should argue that because the image contains an actual child, however slight that child’s image may be in comparison to the rest of the image, the resulting image is morphed and thus unprotected by the Constitution as reasoned by the Court.11

Consider obscenity charges for the pornography that is in question

In its decision the Court apparently opened the door to usher in a new round of obscenity-based prosecutions for pornography.12 By separating pornography involving actual children from virtual child pornography, and then applying the Ferber13 standard to the former and the Miller14 test to the latter, the Court apparently endorses aggressive prosecution under existing obscenity statutes.

Under a community standards test, it is likely that a jury would consider the age of the victims, their poses, and the overall content of the image. Thus, under the Miller test, the focus of the trial would shift from determining whether the subject is an actual or virtual child (as it is in a normal child pornography case) to evaluating the content of the image. With this shift in focus, prosecutors and investigators can be much more aggressive and thorough charging and presenting these cases. With the Supreme Court’s ruling, the Miller test can be used to charge otherwise protected pornographic images in conjunction with traditional child pornography in sex abuse cases. Pairing standard abuse or exploitation charges with charges for obscenity can enhance the state’s case in two ways: 1) By showing that the defendant’s behavior was pervasive and intentional based on his voracious and comprehensive collection of pornography, and 2) by strengthening the link between the consumption of child and child-themed pornography with the act of abuse. Moreover, the obscenity case will be enhanced because the jury can consider, as a part of the larger community standard, the reason the defendant consumed pornography as well as his reason for gravitating towards child or child-themed pornography.

Establish intent and charge as if the virtual pornography were actual pornography

Most states have statutes that restrict a defendant from pleading ignorance of law or mistake of fact.15 When this sort of defense is available, it may be possible to charge the defendant with possession or distribution, or at the least, attempted possession or distribution. To do so, the prosecutor and investigators must work together to collect evidence demonstrating that the defendant had the necessary intent to possess or distribute actual child pornography, despite the fact that the defendant did not know that it was virtual child pornography.

Proving intent under these circumstances is done much as it is in undercover stings in which an investigator poses as a child. Police officers should search the home for other child pornography and take care to note how it is stored. It is likely that the defendant did not sort and divide the actual child pornography from the virtual. Additionally, finding large amounts of pornography could indicate that the defendant was indiscriminately motivated out of a desire for images of naked children and did not care whether or not the images were of actual children. Likewise, a search of the defendant’s computer should record all of the websites and chat rooms visited. Going to those sites to confirm how the pornography is advertised can establish the defendant’s intent. Finally, investigating how the defendant used the pornography can help establish intent. If the defendant alters virtual pornography then it is unlikely that he knew or cared how it was created; his only concern was the image of the naked child.

Use the images to show evidence of grooming, and establish a direct link between the image and the abuse

Child pornography is present in a large number of child sexual exploitation, child sexual abuse, and attempted child sexual abuse cases. If after reviewing a case where the defendant committed or attempted to commit one of these crimes, a prosecutor cannot identify any actual child in the images, and an obscenity charge is not appropriate, then the images can be used as other acts evidence under Federal Rule of Evidence 404(b) to show motive, intent, knowledge, planning, preparation or lack of mistake or accident.16 Using the evidence in such a manner will not only bolster the case, it will also serve to create a record directly linking virtual child pornography to the exploitation and harm of children.17

Conclusion

Despite the apparent adverse effect of the Supreme Court’s recent decision on the state’s ability to prosecute crimes involving virtual child pornography, there still are ways to adequately meet the rising tide of crime related to child pornography. Until a new CPPA can be drafted, prosecutors and law enforcement agencies must be adaptable and aggressive in how they investigate and present cases involving child pornography.

1 Staff Attorney, American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse.
2 Ashcroft v. Free Speech Coalition, 535 US __ (2002).
3 Virtual child pornography is pornography created by computer or digital device that is virtually indistinguishable from images of actual children.
4 Id. at 10.
5 Id. at 18.
6 Free Speech v. Reno, 198 F.3d 1083 (9th Cir., 1999).
7 The Helen and Gavin series are examples of pornography collections that feature one child in a series of poses or states of undress. The series get their names from the names of the victims in the images.
8 Tanner staging is a process through which trained professionals can gauge the age of a person using accepted standards of development and growth as a benchmark. Although controversial, it has been accepted in federal court. United States v. Katz, 178 F.3d 368 (5th Cir., 1999).
9 FRE 701
10 218 USCS 2256(8)(C).
11 Ashcroft v. Free Speech Coalition, 535 US __ at 4.
12 Id. at 18-19.
13 In New York v. Ferber, 458 US 747 (1982), the Court held that child pornography is held to a stricter standard than other forms of pornography, and thus does not enjoy the same protections under the First Amendment.
14 Miller v. California, 413 US 15 (1973), states that material may be banned for being obscene if it meets the relevant community’s standard for obscenity.
15 For example, see the statute from Arizona, ARS 13-1001A.
16 For more information on this subject, please see “ Developing Strategies for Collecting and Presenting Grooming Evidence in a High Tech World,” Update Vol. 14, #11.
17 The lack of a direct link was one of the reasons the Supreme Court struck down the provisions. Ashcroft v. Free Speech Coalition, 535 US __ at 14-15.