Here’s a question for you to ponder. Someone sends you an email that contains pictures of child characters from the TV series The Simpsons having sex. Are you, by possessing and viewing that image, guilty of a crime? Most people would probably assume not and in fact be shocked to learn that yesterday the New South Wales Supreme Court said that such an image constitutes child pornography under Commonwealth and State laws.
The decision, by Justice Michael Adams concerned a man called Alan McEwen who appealed against a magistrate’s decision in February of this year to find him guilty of possessing and accessing child pornography. The pornography, according to Justice Adams, comprised a series of cartoons depicting figures modeled on members of The Simpsons - namely Bart and Lisa and Maggie. “Sexual acts are depicted as being performed, in particular, by the “children” of the family. The male figures have genitalia which is evidently human, as do the mother and the girl,” Justice Adams wrote.
The issue in the case was whether or not these cartoons depicted a “person” and in Justice Adams’ view here the drawings of underage Simpsons characters did. If the drawings depict “some semblance of human form,” then the depiction is that of a “person”.
And how is one to determine whether or not the image in question is a “person”? According to Justice Adams, the presence of human genitalia might be the key. “Whether any particular drawing is a representation of a person must be a question of fact and degree. The representation of human genitalia might, in some cases (such as, I rather think, the present), be decisive,” Justice Adams wrote.
What one must also look for in determining whether the image is a person is the extent to which it departs from “the form of a recognisable human being”. “Merely giving some human traits to say, a rabbit or a duck, may well still leave the image outside the requirement that a “person” be represented, even though the “rabbit” or the “duck” has character traits that are distinctly human and not at all rabbit or duck like. On the other hand, many cartoon characters, though by no means all, are drawn to closely resemble real human beings,” according to Justice Adams.
While Justice Adams acknowledged there is a world of difference between a cartoon or pictorial representation of a child and a photograph or other image of an actual child, nonetheless he said, the law in this area is designed not only to prevent the actual exploitation and abuse of real children but to “deter production of other material - including cartoons - that … can fuel demand for material that does involve the abuse of children”.
There are a number of important policy issues raised by this thoughtful judgment. First, does it detract from the seriousness of the evil of real child pornography to extend its meaning to images which to many reasonable individuals would not be considered to be child pornography, but rather juvenile or even offensive bad taste?
Second, it is arguable that while some cases involving cartoon images of children engaged in sexual activity might be considered child pornography, if the basis for the cartoon were images of real children, that is not the case here.
And then there is the question of who is the victim? There is no victim here, so why spend limited resources prosecuting this case when there are unfortunately, thousands of cases of child pornography involving real victims which go undetected each year.
The reasoning process required to determine whether or not an image is a person is also susceptible to unfair results. A figure that is a person to one, might not be to another. There will be on right or wrong answer in many cases, and therefore it is unfair to criminalise conduct in such cases.
Finally, there is a live freedom of speech and expression issue at play here. In his powerful dissent from the US Supreme Court’s ruling earlier this year that upheld a law to criminalise cartoon images of child pornography, Justice David Souter pointed out that “any limit on speech be grounded in a realistic, factual assessment of harm”. Do the images of fictional cartoon characters that only resemble real life humans in a tenuous way represent a threat to society? The answer is more likely than not to be - no.
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