November 2, 2007 9:49 AM PDT
Police Blotter: Is computer-generated pornography illegal?
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What: Utah woman appeals guilty verdict after jury was told "computer-generated images" of nude minors are illegal, despite a U.S. Supreme Court ruling overturning a similar federal law.
When: Utah Supreme Court rules on October 26.
Outcome: Guilty verdict upheld.
What happened, according to court documents and other sources:
A few years ago, the U.S. Supreme Court ruled that a law banning certain computer-generated images of unclothed minors was unconstitutional.
The Child Pornography Prevention Act prohibited possessing "any visual depiction" including a "computer-generated image or picture" that "appears to be, of a minor engaging in sexually explicit conduct." In its
That might seem pretty straightforward. Except, that is, for the justices on the Utah Supreme Court.
The case in question deals with a defendant named Lexis Alinas, 47, who was allegedly spotted by a librarian in the University of Utah's Marriott Library looking at a Web site called "Little Girls Extreme."
The librarian alerted library security, who spoke with Alinas and confirmed that she had been viewing child pornography. University police were called in, and Alinas was arrested and searched. The search discovered two floppy disks in Alinas' coat pocket, which the officer said contained images of nude female children, along with images of nude adult women.
Alinas' testified during her trial that from a very young age she had struggled with her sexual identity and had been dressing as a woman for approximately 17 years. She said considers herself to be a woman. The pictures, Alinas said, were downloaded to aid in her search for self-awareness and to "represent the way I felt that I should have been born." A
The argument failed. Alinas was charged with seven counts of sexual exploitation of a minor and a jury found her guilty on all counts. She was given a suspended sentence with credit for 607 days served and placed on probation for three years.
What makes her case relevant to Police Blotter is the judge's singular jury instruction. Jurors were told that, to convict Alinas, they had to determine that she possessed a "visual depiction, photograph, picture or computer-generated image or picture of a minor engaging in sexually explicit conduct."
That could run afoul of the U.S. Supreme Court's ruling in 2002 in the Ashcroft v. Free Speech Coalition case, a point that Alinas' defense attorney made. But both the trial judge and the Utah Supreme Court disagreed, and affirmed her conviction.
Excerpt from Utah's state law (U.C.A. 1953 Sec. 76-5a-2), emphasis
added:
"Child pornography" means any visual depiction, including any live
performance, photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually explicit conduct, where:
(a) the production of the visual depiction involves the use of a minor
engaging in sexually explicit conduct;
(b) the visual depiction is of a minor engaging in sexually explicit
conduct; or
(c) the visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit conduct.
"Sexually explicit conduct" means actual or simulated...
"Simulated sexually explicit conduct" means a feigned or pretended act of sexually explicit conduct which duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.
Excerpt from the Utah Supreme Court's opinion:
The instructions in this case, taken verbatim from Utah Code section
76-5a-2, require that the jury, in order to convict, find that Alinas
knowingly possessed child pornography, which was defined as "any visual
depiction, photograph, picture or computer-generated image or picture of a minor engaging in sexually explicit conduct."
Alinas focuses his argument on the instructions' use of the term "computer-generated," a common phrase between the CPPA and the instructions in this case. He argues that the use of this language potentially allowed the jury to convict him for possessing "virtual child pornography," which Ashcroft forbids.
We disagree. Ashcroft appears to have based its holding on the "or appears to be" language of Sec. 2256(8)(D) The CPPA prohibited images that "appeared to be" children, but which were in fact not... The jury instructions in this case did not allow conviction for possession of what "appeared to be" child pornography, but, rather, clearly required that the jury find that the pictures were of "a minor engaging in sexually explicit conduct." The instructions further defined "minor" as "a person younger than 18 years of age." The instructions allowed conviction only upon a finding that the pictures contained actual, and not virtual, children.
We also reject Alinas' argument that the instructions are invalid because a jury could conceivably convict a person for possession of "virtual" images under a mistaken belief that the term "computer-generated image" included such images. The images possessed by Alinas in this case were clearly of real children, far below the age of majority...
Alinas claims that the state failed to prove the age of the children depicted. He also claims that the state failed to prove that the images depicted real children. To qualify for regulation under Ferber, and to avoid violating Ashcroft, child pornography must depict a real, non-virtual minor. As such, Alinas argues that the only way the state can prove beyond a reasonable doubt that the pictures were of actual children under eighteen years of age is through the introduction of expert testimony. Because no expert testimony was given in this case, Alinas claims the state failed to meet its burden.
Alinas cites to no case that supports his claim, and we have found only cases that express the contrary view. For example, courts have generally held that the jury themselves, through visual examination, are capable of making the determination whether the children depicted are under eighteen years of age. Likewise, every federal circuit court to address the issue has held that a state may prove that images of children are real, as opposed to virtual, merely by allowing the fact finder to examine the images themselves
We are of the same view. Whether an image depicts a virtual child or a real child is a question of fact for the jury. Also, whether the children depicted are minors is a question of fact for the jury.
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of episodes... How dare you exploit Kyle and Cartman that way!
Where's the outrage?!
the boundry in the most recent episodes - would that qualify as bestiality? Even though it was the "beasts" instigating it?
Man the religious wackos have really done a number on us, haven't
they. Even comedy is becoming suspect in today's messed up
world.
how about if two stick figures of the same size are depicted having sex, but i write "jack and jill, age 7" as the caption, is that kiddie porn?
suppose i use a computer to photoshop a picture of one of your kids into something indecent. the kid is real, but the picture is fake, is that illegal?
if i draw a picture of an underdeveloped girl having sex, but i have drawn pointy ears on her, is that illegal as well? other than the ears she could be under age, but she is clearly an elf that is centuries old.
what about all those japanese cartoons with girls in catholic school uniforms being assaulted by tentacles? that stuff is clearly illegal, right?
But in this case, it really sounds like no evidence was presented (and the defense lawyer at trial never argued) that the images were not real children.
That does leave open the question of what is a sexual act though.
And it does not change my feelings about whether my children should be looking at such things.
Yeah and some jury said OJ and Robert Blake were innocent.
There are two issues here which are real:
The first is whether pictures on a monitor and on a disk constitute "computer-generated" images because they were not on paper or film. Hard to argue this one, in my opinion.
The second is whether the judge's instruction that they had to find the defendant guilty of either A or B (which was defective in that B was not not illegal) is grounds to overturn the jury's finding that he was guilty of A. Or possibly that it is grounds to overturn if the jury did not say explicitly whether it was relying on A or B to convict, when only evidence of A had been presented.
Much as I favor First Ammendment rights, I have to agree with the Utah Supremes on this one. Although the validity of the second point is one which is a matter of law rather than common sense, and so I can't really address that part.
"Whether an image depicts a virtual child or a real child is a question of fact for the jury. Also, whether the children depicted are minors is a question of fact for the jury."
and also:
"... a feigned or pretended act of sexually explicit conduct which duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct."
So basically it's up to the jury to decide if the children are real or virtual, if they are of age or under age and if they are or are not engaged in feigned sexually explicit conduct.
This is putting a LOT of bearing on how the Jury FEELS rather than on any facts. Now I don't know about the specifics of this case, it could be pretty cut and dry, but it definitely sounds like there's a LOT of room for error here where the facts simply don't matter.
I don't know about the rest of you, but if you showed me 10 pictures of youths ranging from 16 to 19 I definitely couldn't pick out with much accuracy which are minors (16 and 17) and which are adults (18 and 19). I've also seem some VERY convincing photoshop pics with celebrities heads on porn, so that tells me that I couldn't necessarily tell if the images were computer generated with much accuracy either. And the feigned sexually explicit acts? That's HUGELY up to the judgement of the person viewing the image. What one person might view as pretend masturbation, another might view as simply picking a wedgie!
The end result could be a frighteningly broad definition of 'child pornography' based more on the background and beliefs of the appointed jurors rather than on the details of the case itself.
Land of the dumbfree and freedumb.
Jury's can ignore judge instructions. They have supreme power and often exercise it in tax cases since there is no law requiring most to file and pay a tax. When images are illegal, next comes thought. Next comes what they think you thought etc.
And if you don't think the DOJ uses it, ask Dwight Whorley whose case is detailed in the November 2006 issue of the U.S. Attorneys Bulletin: http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf
A question that politicians, media (including Cnet) and others fail to ask is how does a website with the name "littlegirlsextreme" get on the Internet? A Registrar accepted payment for that domain name, and a Registry was given a cut, as was ICANN. Chances are it was hosted in the U.S. as well.
All of this reminds me of the fact that you can't be compelled to give a DNA sample without a court order but the police can follow you around until you discard some article with your DNA on it and use that. What's the point. Either you have freedom and privacy or you don't.
It's all just a game. It seems you can do anything you want if you know the rules and how to play them to your advantage
Utah needs to spend more time protecting REAL children. You know the kind they allow to become the 15th wife of some 40 year old Moromon.
- Poser?
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by TGallag69
November 6, 2007 2:49 AM PST
- Doesn't that make "Poser", a consumer level 3D Animation program, illegal to use in the state of Utah? It comes with a few nude child models.
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