NCJ Number
198919
Journal
Sex Offender Law Report Volume: 3 Issue: 6 Dated: October/November 2002 Pages: 83-84,96
Editor(s)
Douglas D. Koski J.D.
Date Published
October 2002
Length
3 pages
Annotation
This article examines how prosecutors can creatively find alternatives in prosecuting virtual child pornography since the U.S. Supreme Court struck down the elements of the Child Pornography Protection Act (CPPA) that criminalized the possession, distribution, or creation of “virtual” child pornography.
Abstract
Virtual child pornography is defined as pornography created by a computer or digital device that is virtually indistinguishable from images of actual children. In 2002, based on three elements or conclusions, the U.S. Supreme Court handed down a decision striking down the elements of the Child Pornography Protection Act (CPPA) which criminalized the possession, distribution, or creation of “virtual” child pornography. However, the ruling did not make prosecuting child pornography involving real children more difficult; in some circumstances it opened the door for additional prosecution. This article provides some suggestions for prosecutors for how best to live with the Court decision until new law is instituted and be creative in finding alternative ways and strategies to apply existing law to cover the gaps that include: (1) creation of the affirmative defense, not showing “who,” just proving “if;” (2) morphing and manipulating photographs of actual children; (3) consider obscenity charges for the pornography that is in question; (4) establish intent and charge as if the virtual pornography were actual pornography; and (5) use the images to show evidence of grooming, and establish a direct link between the image and the abuse. Despite the Court’s decision, there are still ways to adequately meet the rising tide of crime related child pornography. Prosecutors and law enforcement agencies need to be adaptable and aggressive in how they investigate and present child pornography cases.