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The Blurry Lines of Child Pornography

John Grisham said some stupid things about child pornography recently, but he's right that laws involving depictions of kids in sexual situations are fairly complicated.

Screengrab from the Telegraph's John Grisham interview__

While touting his new novel about the terrors of the coal industry to the Telegraph last week, bestselling writer John Grisham offered up some unwise remarks about American pedophiles being locked up . He told an interviewer that "We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," but who "got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far, and got into child porn."


After what were no doubt a tumultuous few hours for the legal thriller author, he realized that showing up in headlines next to the words "defends pedophiles" was a bad look, he was like, "Sorry everyone!" The notion that there are a bunch of innocent men out there who are in prison because they got drunk and typed into their computers seems, ah, a little shaky, but child porn cases can take odd legal turns.

Take the British man who recently received the dubious distinction of being the first UK citizen convicted of a crime for possessing cartoon child pornography—he had Japanese-style drawings of underage girls in school uniforms, exposing their cartoon privates, and having cartoon sex. (America's first such conviction was in 2009.) Many comics fans are up in arms about the UK case, since no actual children are harmed in the making of dirty pictures. Though everyone agrees that sex with children is terrible, and kiddie porn is also awful, there's a fair amount of legal gray area when it comes to child pornography, and a lot of excuses that accused pedophiles can make when the contents of their computers is uncovered by the cops. For instance:

"It's just a cartoon!"

Greece is OK legally because it has artistic and historical value. Image via Wikimedia Commons 

Some drawings of children in sexual contexts are illegal, but the law has loopholes—for a crime to be committed, the illustrations must have no artistic merit and therefore be considered legally obscene. Art featuring minors in sexual contexts that doesn't pass the somewhat capricious Miller Test for obscenity was banned in 2003 under the PROTECT Act.


For a sample of what's not obscene, Wikimedia Commons has a section titled "Erotic activities involving children," and it's full of stuff like Greek plates painted with pictures of placid, blank-faced children being molested by equally placid, blank-faced men. All the stuff in that collection presumably can be said to have artistic merit or historical, but a lot of it is suuuuuuper fucked up.

"They're not really minors!"

In 2002, when the Supreme Court killed the overbroad Child Pornography Prevention Act of 1996, Justice Anthony Kennedy famously pointed out that the law's prohibition against depictions of kids gettin' it on would rule out Romeo and Juliet, not to mention Traffic and American Beauty.

So to be clear, there are models out there who look young—very, very young—who could choose to act like children being molested, but as long as the product is correctly labeled as a depiction of adults having sex, you're legally in good standing.

Interestingly, if someone labeled their fake child porn as real child porn for some weird reason, that would be a crime. The Supreme Court decided this in a very strange and convoluted [2008 case](http:// ), US v. Michael Williams, in which the defendant claimed he had porn of his two-year-old daughter and was trying to trade for other child pornography with an undercover FBI agent in a chat room.

"I stumbled upon it!" 

John Grisham's nightmare scenario—accidentally landing on child porn while drunk—was factored in by Congress when the federal law banning child pornography was written; legislators included the word "knowingly" before every new phrase. It's worth noting here that the legal framework for prosecuting child porn generally catches pedophiles dead to rights, because they usually have it in such enormous quantities—like, tens of thousands of images—that there's no ambiguity.


"It's art!"

Say what you will about the sheer volume of Michael Jackson's collection of underage nude photos—they were contained within art books with titles like In Seach of Young Beauty. Judging from the fact that you can order that title on Amazon, it looks like they're considered legal, if not socially acceptable, to own.

There are also some movies that get a pass, such as Louis Malle's 1978 film Pretty Baby, which is about a 12-year-old prostitute, played by 12-year-old actress Brooke Shields. Most of these films are from the 1970s, and they often contain depictions of nude children in fairly sexual contexts that would never make it to the screen today—not because such things are or should be illegal, but because everyone would get super upset and theaters probably would refuse to show those films.

Obviously, ever since the days of VHS, movies like this can be screened at home. Now they can also be streamed instantly on Amazon, where the "Customers Who Bought This Item Also Bought…" section can get a little, well:

"It's just words, no images!"

Did you know that there's an entire genre of fan fiction known as "Snarry"? That's where people write about Severus Snape and Harry Potter getting down to business—which is probably not your cup of tea, but it's totally legal thanks to the First Amendment.

There have been close calls. In 1998, a guy named Brian Dalton pled guilty to child pornography when what he had in his possession was a journal full of his sexual fantasies about kidnapping and raping children. After he was convicted, the ACLU appealed the verdict and the case made it all the way to the Ohio Supreme Court in 2003, where Dalton was allowed to retract his guilty plea. In 2004, his case was dismissed.

So if you're one of Grisham's imaginary 60-year-old white guys who downs a few IPAs and starts running wild with the "sexy kids" Google searches, be sure to stick to short stories, Grecian urns, and gritty urban dramas from the 70s—or just don't look at child porn?

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