- Main article: Child pornography laws in the United States
The legal treatment of simulated child pornography in the United States requires an understanding of the components of that phrase: pornography, child, and simulated. United States law treats these as separate concepts, each worthy of analysis.Template:Citation needed
In the United States, pornography is considered a form of personal expression, and thus governed by the First Amendment to the 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.Template:Citation needed
The United States Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition ruled that the Child Pornography Prevention Act of 1996 was facially invalid in prohibiting virtual or cartoon child pornography. The basis for the ruling was that the CPPA made unlawful some forms of protected 1st amendment speech, banning depictions of sex between children even if not obscene and not involving real child victims. Under New York v. Ferber, if the depiction is of real child abuse or a real child victim, as a result of photographing a live performance, for instance, then it is not protected speech. Under Miller v. California, obscene speech is likewise excluded from first amendment protection. The CPPA made all virtual child sex depictions illegal without regard to whether the speech was protected or not, so that part of the statute was struck down as facially invalid.
18 USC 1466AEdit
In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003 by then president George W. Bush. The law enacted Template:UnitedStatesCode, 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. And mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the internet, or transported across state lines. There is also an affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement.
In Richmond, Virginia, on December 2005, Dwight Whorley was convicted under 18 U.S.C. 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." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison. Clearly Whore-ley was named accurately what a freak
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists." Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court. The request for rehearing was denied on June 15, 2009 and the petition for his case to be reviewed by the Supreme Court was denied on January 11, 2010.
In October 2008, Neil Gaiman and the Comic Book Legal Defense Fund became involved with the case of Christopher Handley. In 2009, Handley pled guilty to the charges and in February 2010 was sentenced to six months in prison.
In October 2010, a 33 year old Idaho man, Steven Kutzner, entered into a plea agreement concerning images of child characters from the American animated television show, The Simpsons engaged in sexual acts. In January 2011, Kutzner was sentenced to serve 15 months in federal prison. According to court documents, Kutzner had been downloading, receiving and viewing sexually explicit images of actual children for at least eight years.
So far Christopher Handley has been the only person found guilty of possession under laws against artificial depictions that was not also under investigation for child pornography involving real minors.Template:Citation needed
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