Some may find this posting offensive or disturbing. 

I’m extrapolating a scenario that might ensue from the current state of U.S. law on child pornography.  I’m not arguing for this or any other result, just working through the logical possibilities, to point out what could be a consequence of current U.S. law.

As I explained in an earlier post (“Child pornography:  real and pseudo,” September 1, 2006), the U.S. Supreme Court has held:

• that the First Amendment does not preclude U.S. law’s criminalizing “real” child pornography, i.e., child pornography the creation of which involves the use of real children;
• that the First Amendment does bar U.S. law from criminalizing virtual child pornography, i.e., child pornography the creation of which does not involve the use of real children but is, instead, based on computer-generated images (CGIs).
  

The Supreme Court held that the First Amendment does not prevent U.S. law from criminalizing real child pornography, even though it qualifies as speech under the First Amendment, because its creation involves the victimization of children, both physically and emotionally.  Real child pornography is essentially a product and a record of a crime, or crimes, against children.  The Court also held that the First Amendment does prevent U.S. law from criminalizing virtual child pornography because it is speech and because no real person is “harmed” in its creation; unlike real child pornography, virtual child pornography is fantasy, not recorded reality.

We were covering all this in my cyberspace law class, and I asked the students to think about where virtual child pornography’s protected status under the First Amendment might take us once computer technology evolves so it is possible to create virtual child pornography (or adult pornography or movies or any visual media) that are practically indistinguishable from the real thing.  That is, the question is what might happen with virtual child pornography once the average person cannot tell it from child pornography the creation of which involved the use of real children. We came up with what I think are some interesting scenarios. 

For one thing, it would not be illegal to possess this indistinguishable-from-the-real-thing virtual child pornography.  That, alone, has several consequences.  It could create real difficulties for law enforcement officers who are trying to find real child pornography and prosecute those to create, distribute and possess it.  If a regular person cannot tell real from virtual child pornography by simply looking at a movie or other instance of child pornography, how are police involved in investigations supposed to know what they’re dealing with? 

Another consequence could be that it becomes functionally impossible, or at least very difficult, for prosecutors to prove that someone being prosecuted for possessing real child pornography did so knowingly.  The defendant could claim he or she believed the material he possessed was virtual, not real, child pornography.  Since the prosecution has to prove the defendant “knowingly” possessed real child pornography beyond a reasonable doubt, it would presumably be difficult for prosecutors to win in cases like these (assuming the jurors followed the law and were not swayed by personal distaste for the defendant’s preferences in pornography).

Since U.S. jurisdictions cannot criminalize the possession and distribution of virtual child pornography, we might see the emergence of websites selling virtual child pornography.  It would perfectly legal to sell the stuff in the U.S., to buy it or to possess it.  Virtual child pornography would essentially have the same status as any other kind of fictive material; it is, after all, a fantasy, just as slasher movies or violent video games are fantasy. 

To protect themselves and their clients, these hypothetical businesses might watermark the virtual child pornography they sold, to provide an easy way of proving that the stuff was virtual, not real.  We talked a bit about this in my class.  The watermark would have to be something that could withstand scrutiny and that would be valid, clearly credible evidence that child pornography was virtual, not real.  Those who created and sold the stuff might be able to charge more if their watermark hit a gold standard – if it basically provided a guarantee that those who bought their product could not be successfully prosecuted for possessing child pornography. 

The international repercussions of all this might be interesting; some countries, such as Germany, criminalize the creation, possession and distribution of all child pornography, real and virtual.  The criminalization of all child pornography is the default standard under the Council of Europe’s Convention on Cybercrime, but the Convention allows parties to opt out of criminalizing virtual child pornography.  So countries that take the same approach as the U.S. could also become purveyors of virtual child pornography.  We could see a world in which virtual child pornography was illegal in some countries and for sale in others.

In analyzing where all of this might go, my students and I realized there could be one, really depressing implication of the commercialization of virtual child pornography:  Real child pornography would probably become particularly valuable, because it would be the real thing.