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Tennesee Man Charged In "Virtual Pornography" Case 639

Posted by timothy
from the bad-taste-in-one's-mouth dept.
mcgrew writes "CNN reports that 'A Tennessee man is facing charges of aggravated sexual exploitation of a minor for what authorities say are three pictures — none of them featuring an actual child's body. Instead, according to testimony presented at Michael Wayne Campbell's preliminary hearing in Chattanooga, Tennessee, on Wednesday, the photos feature the faces of three young girls placed on the nude bodies of adult females, CNN affiliate WDEF reported.'"
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Tennesee Man Charged In "Virtual Pornography" Case

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  • by Jane Q. Public (1010737) on Thursday June 25, 2009 @05:17PM (#28473415)
    ruled that in order for something to be "child pornography", it had to be depictions of (1) real children, and (2) real pornography.

    This is interesting, though, if the faces were of real children. Which side of the line does that land on?
    • by e9th (652576) <e9th@@@tupodex...com> on Thursday June 25, 2009 @05:33PM (#28473621)
      TFA:

      Tennessee's laws state that in prosecuting the offense of sexual exploitation of a minor, "the state is not required to prove the actual identity or age of the minor."

      I wonder if that's been tested. It sounds scary, in that it assumes the "minor" part.

    • Re: (Score:3, Informative)

      by nurb432 (527695)

      Would have to define 'depiction' i suppose. Go too far and the old Simpsons porn parodies would qualify. And how do you define 'real porn' as opposed to 'not real porn'

      What is next to become illegal, discussing it?

      • by Jane Q. Public (1010737) on Thursday June 25, 2009 @05:59PM (#28474011)
        As best I understand it, the Supreme Court ruled that if no children were actually harmed (abused, molested, made to perform sexual acts, or pose in a sexually explicit manner), then the material constitutes protected speech.

        It appears to me, as a layperson, that this falls into that category.
    • by computational super (740265) on Thursday June 25, 2009 @05:57PM (#28473973)

      Actually, I read recently about a case where a guy (Christopher Handley, I think his name was), was sentenced to 15 years for simply possessing a japanese cartoon depiction of such. I don't think it has to be real anything... if it oogs somebody out, you're going to jail.

    • by Maestro4k (707634) on Thursday June 25, 2009 @06:06PM (#28474117) Journal

      ruled that in order for something to be "child pornography", it had to be depictions of (1) real children, and (2) real pornography.

      This is interesting, though, if the faces were of real children. Which side of the line does that land on?

      The article mentions that, and has this little tidbit: Nearly every state, however, has adopted a law in response to the Supreme Court decision in the case, Fitzsimmons said. For instance, Tennessee's laws state that in prosecuting the offense of sexual exploitation of a minor, "the state is not required to prove the actual identity or age of the minor." So somehow they took "it has to have real children and be real pornography" and decided to go with "we don't have to even bother proving that it's really a real person or that they're really underage". That's pretty damn scary. Although this other bit here may explain it a lot: "It's definitely on the increase," said Justin Fitzsimmons, a former prosecutor and senior attorney with the National Center for the Prosecution of Child Abuse, part of the National District Attorneys' Association. "People are trying to come up with creative ways to continue to sexually exploit children using digital evidence." How the hell are you supposed to sexually exploit a child using digital evidence? Fiddling with a photo in Photoshop != sexual exploitation in my book. This is really starting to sound more and more like a fucking witch hunt.

      • by Jane Q. Public (1010737) on Thursday June 25, 2009 @06:15PM (#28474291)
        Interesting you should say that. I just recently finished reading "Witch Hunt", which is about the "Child Sex Ring" debacle that happened in Wenatchee, WA, in the '90s.

        All it took was one overzealous police officer, in conjunction with some overprotective "Child Services" employees of the state, to ruin something on the order of 23 families. The book is out of print, but it is still available on Amazon. It was written by an attorney. I highly recommend it to people who think "it can't happen here", or "if they were arrested, they must be guilty of something." What happened in Wenatchee seems almost unbelievable... but you better believe it.

        IMO, a bigger travesty of justice has seldom if ever occurred in the United States.
        • by Maestro4k (707634) on Thursday June 25, 2009 @06:22PM (#28474405) Journal

          Interesting you should say that. I just recently finished reading "Witch Hunt", which is about the "Child Sex Ring" debacle that happened in Wenatchee, WA, in the '90s.

          All it took was one overzealous police officer, in conjunction with some overprotective "Child Services" employees of the state, to ruin something on the order of 23 families. The book is out of print, but it is still available on Amazon. It was written by an attorney. I highly recommend it to people who think "it can't happen here", or "if they were arrested, they must be guilty of something." What happened in Wenatchee seems almost unbelievable... but you better believe it.

          IMO, a bigger travesty of justice has seldom if ever occurred in the United States.

          Read up on the Satanic Ritual Abuse Panic [wikipedia.org] of the 1980s, lots of families ruined there as well. Also see the Red Scares [wikipedia.org], there were two of those, the most famous being run by McCarthy. The US seems to enjoy having moral panics that destroy lots of innocent lives. Apparently we're "Land of the free, home of the scared silly". *sigh*

        • Re: (Score:3, Informative)

          by Nethead (1563)
      • by GoodNicksAreTaken (1140859) on Thursday June 25, 2009 @08:58PM (#28476235)
        These state laws will likely (they damn well better) be appealed in to oblivion as they are in violation of the 14th Amendment's Due Process Clause. These laws are intentionally and un-Constitutionally vague and should disappear the same way vagrancy laws did.
    • Re: (Score:3, Insightful)

      by Enderandrew (866215)

      One could argue that the basis for that decision is that if there are no real children, and there is no real pornography, then no one was victimized, and thusly no crime was committed. That hasn't stopped people from throwing around accusations of "child pornography" when people write Harry Potter fan-fic. If the underlying issue here is the exploitation of children, you could argue no children were exploited here.

  • by ushering05401 (1086795) on Thursday June 25, 2009 @05:18PM (#28473431) Journal

    This whole situation sounds bizarre, but I was just reading in the strip-search constitutionality stories about the 'expectation' that a person would understand the constitutionality of their actions.

    As we start seeing more of these strange cases that have been made possible by the advancement of technology I wonder if the expectation of understanding defense will be employed.

    After all - what legal precedence addressing a situation of this nature has reached a level of widespread understanding that a given individual could be expected to be familiar with the society's legal expectations.

    • by Spazmania (174582) on Thursday June 25, 2009 @05:28PM (#28473579) Homepage

      these strange cases that have been made possible by the advancement of technology

      What technology? Scissors and glue?

    • by Goobermunch (771199) on Thursday June 25, 2009 @05:59PM (#28474035)

      That's not going to happen.

      You have to understand the legal arenas in which the cases you look at are decided. The strip-search case involved a state actor who engaged in conduct arguably prohibited by the U.S. Constitution. That gave rise to a 1983 action (a suit for damages based on a violation of your Constitutional Rights). In those kinds of cases, there is a defense called qualified immunity. It can be invoked by state actors to say "The rule I broke was not well settled by the Supreme Court. I did not know I was violating your rights. Because I did not know, and there was no way for me to know, I should not be held liable."

      But that defense only comes up where a state actor is sued for violating someone's rights. This case involves a criminal prosecution against a private citizen. The private citizen does not have a "I didn't know" rule. In fact, the general rule is that ignorance of the law is not a defense. He can still defend himself by arguing that Tennessee's law is unconstitutional, but he cannot say that he did not know that what he was doing was illegal.

      --AC

  • by Anonymous Coward on Thursday June 25, 2009 @05:19PM (#28473453)

    ...three young girls placed on the nude bodies of adult females.

    I guess he should have done it the other way around then. Right?

  • by QuantumG (50515) * <qg@biodome.org> on Thursday June 25, 2009 @05:20PM (#28473457) Homepage Journal

    The U.S. Supreme Court in 2002 ruled that "virtual child pornography," in which no children were actually harmed, is protected speech and does not constitute a crime.

    "We see it all the time," Allen said. "It makes it harder for law enforcement. It makes it tougher for prosecutors."

    Well yeah, prosecuting someone for something that isn't a crime would be "tougher".

    • Well yeah, prosecuting someone for something that isn't a crime would be "tougher".

      Yeah, this actively pisses me off. There's nothing here to go on especially in light of the 2002 decision. Even prior to that, it's questionable since he's using /adult bodies/ in the images. Hm - on re-read, it looks like they haven't actually filed charges yet? This leaked before the GJ handed down an indictment?

      Then there's NCMEC:

      Since then, "more and more of these guys are using morphed images, image manipulations" in an attempt to circumvent prosecution, Ernie Allen, president of the National Center for Missing and Exploited Children, said Wednesday.

      I'm sorry, isn't that THE POINT of your organization dude? You don't want real children to get exploited. And you have the sheer temerity to complain because they're /not/ exploiting children "in an attempt to circumvent prosecution"?

      "It's definitely on the increase," said Justin Fitzsimmons, a former prosecutor and senior attorney with the National Center for the Prosecution of Child Abuse, part of the National District Attorneys' Association. "People are trying to come up with creative ways to continue to sexually exploit children using digital evidence."

      Wait, what? ARRRGH! How the hell can you possibly sexually exploit a child when there's no child involved? Have we invented a new form of logic here?

  • by lordmetroid (708723) on Thursday June 25, 2009 @05:20PM (#28473459)
    Ehm, *Cough* Thought Crime *Cough*
  • by Vinegar Joe (998110) on Thursday June 25, 2009 @05:22PM (#28473501)

    Pastes it on the nude body of Nancy Pelosi.......

    Wait a sec. I don't think I should go any further with this.......

  • by MarkvW (1037596) on Thursday June 25, 2009 @05:26PM (#28473541)

    If you are a purveyor of stick-man pornography, please FOR THE LOVE OF GOD make your stick men big! Drawing a little stick-man might get you into trouble.

    Oh! And be sure to include scale objects in your drawing so that everybody knows that you're drawing a big stick man. Ummm . . . I mean scale objects extrinsic to the stick man.

    Now, go on and enjoy your stick-man / stick-woman pornography!

  • by RightSaidFred99 (874576) on Thursday June 25, 2009 @05:32PM (#28473611)

    Exploitation: Check, probably.

    Minor: Check.

    Yep, seems like a tautology to me - he's guilty. Note they didn't convict him of sexual abuse of a minor, or making child pornography, or anything like that.

    Does this mean I think he should be convicted of a crime - maybe. The problem is the use (I assume) of the word "exploitation" in a crime. It can be interpreted to mean almost anything. It's like being convicted of being "too douchy". How douchy is too douchy?

  • by hamburgler007 (1420537) on Thursday June 25, 2009 @05:32PM (#28473617)
    When you prosecute thought crime the same as if the person had actually committed the crime why would someone who engages in this type of behavior not commit the actual crime in the future?
    • by Jane Q. Public (1010737) on Thursday June 25, 2009 @05:46PM (#28473795)
      Precisely. If there is a law against something that I personally would be inclined to break, and I am accused of and punished for breaking that law even when I didn't, then there would be no motivation to prevent me from actually doing it in the future.

      This is a generic problem with over-broad laws.
    • Re: (Score:3, Insightful)

      by Qzukk (229616)

      Because politicians in all branches of the government pad out their resumes by being "tough on criminals" and the unwashed masses think it has something to do with being tough on crime and just lap it right up.

    • by CarpetShark (865376) on Thursday June 25, 2009 @06:07PM (#28474125)

      When you suggest that someone who thinks about the nature of crime would actually commit the crime, that doesn't help either. How about just saying that prosecuting people for thinking is something only done by those afraid of thinking?

    • Re: (Score:3, Interesting)

      by selven (1556643)
      Or, alternatively, if photoshopped child porn is indistinguishable from the real variety then you assume that all porn is photoshopped because no one who wants to make child porn would go through the trouble of abusing children.
  • by TerraFrost (611855) on Thursday June 25, 2009 @05:36PM (#28473665)

    FTA:

    For instance, Tennessee's laws state that in prosecuting the offense of sexual exploitation of a minor, "the state is not required to prove the actual identity or age of the minor."

    How can you prove that the person in a picture is a minor if you can't figure out their age? For a toddler, it's obvious, but what about someone in high school? Summer Glau, 27, played a 15 year old in Terminator: The Sarah Conner Chronicles. Nathalie Portman was 18 when she played a 13 year old in Star Wars: The Phantom Menace. Sarah Michelle Geller was 21 when she played a 15 year old Buffy Summers in Buffy: The Vampire Slayer. There's a pretty wide margin of error if all you have to go by is a picture.

    • by Maestro4k (707634) on Thursday June 25, 2009 @06:14PM (#28474269) Journal

      How can you prove that the person in a picture is a minor if you can't figure out their age? For a toddler, it's obvious, but what about someone in high school? Summer Glau, 27, played a 15 year old in Terminator: The Sarah Conner Chronicles. Nathalie Portman was 18 when she played a 13 year old in Star Wars: The Phantom Menace. Sarah Michelle Geller was 21 when she played a 15 year old Buffy Summers in Buffy: The Vampire Slayer. There's a pretty wide margin of error if all you have to go by is a picture.

      Which is probably why the bit you quoted says the law doesn't require them to either prove identity or age. They can just claim they're underage and go after you. Feeling worried yet? This is a horrid law, it basically allows the cops to charge you with child porn/child sexual exploitation based on their whims, not actual evidence.

    • Re: (Score:3, Interesting)

      by Kjella (173770)

      A: You're guilty if they want you to be.
      B: At least in Norway, you're guilty if they appear to be under 18. There's no defense if you can legally prove thay are over 18. Yes it's true, I read a court verdict where the defendant clearly referred to "Tiny Tove" Jensen, a Danish porn actress that was provably 18+ during her entire career yet played many dubious roles. Thoughtcrime at its best.

    • by againjj (1132651) on Thursday June 25, 2009 @08:12PM (#28475775)
      While "the state is not required to prove the [...] age of the minor", it does not say "the state is not required to prove that the person is a minor". The difference is that if the picture is of a six-year-old, it is pretty clear the person is a minor. An apparent 15-year-old, however, will need something more to prove that the person is a minor. If the law said that minority did not need to be proved, then the law would be saying that any pornography is child pornography, on the word of the state.
  • by malevolentjelly (1057140) on Thursday June 25, 2009 @05:40PM (#28473709) Journal

    There is certainly a mens rea of harm to a minor involved when someone has the faces of children pasted on adult bodies such as in this case. So, the actual reason we have child pornography laws in the first place (to protect minors) is served by this case. In fact, using the child's face even fits the actual crime of "exploitation" of a minor. It's even aggravated

    However, this really is a crime. Can we really imprison someone for likely intending to rape a child?

    Well...

    (a) It is unlawful for a person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance of, or in the production of, acts or material that includes the minor engaging in:
    (1) Sexual activity; or
    (2) Simulated sexual activity that is patently offensive.
    (b) A person violating subsection (a) may be charged in a separate count for each individual performance, image, picture, drawing, photograph, motion picture film, videocassette tape, or other pictorial representation.
    (c) In a prosecution under this section, the trier of fact may consider the title, text, visual representation, Internet history, physical development of the person depicted, expert medical testimony, expert computer forensic testimony, and any other relevant evidence, in determining whether a person knowingly promoted, employed, used, assisted, transported or permitted a minor to participate in the performance of or in the production of acts or material for these purposes, or in determining whether the material or image otherwise represents or depicts that a participant is a minor.
    (d) A violation of this section is a Class B felony. Nothing in this section shall be construed as limiting prosecution for any other sexual offense under this chapter, nor shall a joint conviction under this section and any other related sexual offense, even if arising out of the same conduct, be construed as limiting any applicable punishment, including consecutive sentencing under  40-35-115, or the enhancement of sentence under  40-35-114.
    (e) In a prosecution under this section, the state is not required to prove the actual identity or age of the minor.
    (f) A person is subject to prosecution in this state under this section for any conduct that originates in this state, or for any conduct that originates by a person located outside this state, where the person promoted, employed, assisted, transported or permitted a minor to engage in the performance of, or production of, acts or material within this state.

    [Acts 1990, ch. 1092, Â 7; 2005, ch. 496, Â 4.]

    Well, looks like we can!

    • by taustin (171655) on Thursday June 25, 2009 @06:09PM (#28474157) Homepage Journal

      Can we really imprison someone for likely intending to rape a child?

      Problem is, there's zero evidence to support the claim that viewing child pornography incites child abuse of any kind. And there's growing evidence that suggests that the actual effect might be the reverse - that viewing child pornography might actually be a substitute for actual sexual contact with children.

      It's unlikely that further research will be funded, though, if it seems likely to reach the "wrong" conclusions.

  • Scary CNN Video (Score:4, Informative)

    by basementman (1475159) on Thursday June 25, 2009 @05:41PM (#28473729) Homepage

    The CNN video on the subject: http://www.cnn.com/video/#/video/bestoftv/2009/06/25/jvm.miley.scare.cnn [cnn.com] shows not only the sensationalism of television, but people's willingness to ignore ideas of free speech to "protect the children".

  • Old news! (Score:3, Informative)

    by bassling (1210918) on Thursday June 25, 2009 @05:41PM (#28473731)

    There was a similar case in Australia earlier this year:

    http://www.areanews.com.au/news/local/news/general/griffith-man-guilty-on-child-porn-charges/1403310.aspx [areanews.com.au]

    Different laws obviously but this bloke was found guilty.

  • Short Adobe (ADBE)! (Score:3, Interesting)

    by Punk CPA (1075871) <mitchtownsend@ho ... l.com minus city> on Thursday June 25, 2009 @05:48PM (#28473811)
    Next, the maker of Photoshop is indicted for aiding and abetting DIY kiddie porn. This is just stupid.
  • by lattyware (934246) <gareth@lattyware.co.uk> on Thursday June 25, 2009 @05:48PM (#28473829) Homepage Journal
    These laws are meant to be there to protect children. No children were harmed in the making of these images. This is essentially thought-crime.
  • by UnknownSoldier (67820) on Thursday June 25, 2009 @05:53PM (#28473905)

    The article doesn't even say how they found them in the first place, but why the hell do people get so bent out of shape what others look at? Its none of mine, or your fucking business.

    Don't prosecutors have anything better to do, then pretend to be a nanny to some adult?

    It's a _picture_. It's such threat to society that it threatens the heart of civilization! I mean look at all the killing, and raping it does!!! Oh wait, _people_ do those things...
    --
    "One man's fetish is another man's turnoff."

  • Original purpose (Score:5, Interesting)

    by Theodore (13524) on Thursday June 25, 2009 @05:54PM (#28473923)

    Originally, laws against child porn were passed under the assumption that a child was involved in a sex act "without their consent".
    In other words, right up until back in the 70's, you could buy porn where "children" were "raped"
    (note the use of quotations... both of those terms have changed since back then, a lot) in regular porn shops.

    It was assumed, that spreading "child porn" meant that you had been involved in it's creation.
    That's spurious to begin with, even 40 years ago.
    The purpose of child porn laws was to prevent "sexual damage to children".

    Soooo....
    Now children aren't even needed... so there's no real crime (rape) being effected.

    STOP!!!
    I know that you're thinking.
    "People who like to watch 'underage' porn can't be stopped from acting on what they've seen"...
    Really?
    How much porn have you watched?
    How much of it have you gone out and re-enacted?
    Truth of it all, you've jerked off tons of times, then looked at the screen (or even live pussy), and said "Nah... I'm done".
    .
    .
    .
    I'm hearing crickets here.

    "It makes it harder for law enforcement."...
    Yeah, that's the constitution smacking you in the face with it's dick.
    It's SUPPOSED to be harder for "law enforcement"; distrust of government is encoded into the constitution.

  • by hoggoth (414195) on Thursday June 25, 2009 @05:59PM (#28474037) Journal

    What I don't understand is why this guy is being prosecuted for pasting together a picture of Miley Cyrus on a nude body, when there is (was) an actual 20 year old adult HAVING SEX with her. Isn't that statuary rape? Oh... but they are rich and famous so it's ok?!

  • Why not... (Score:3, Funny)

    by Hurricane78 (562437) <deleted@@@slashdot...org> on Thursday June 25, 2009 @06:36PM (#28474623)

    ... if they also punish him virtually only, and without using any actual virtual punishment device.

    Everytime I wondered how retarded they are, I know know that they can't be *that* retarded. So it must be something else. Guess what...

  • by moxley (895517) on Thursday June 25, 2009 @06:46PM (#28474769)

    This is bullshit. What a waste of time.

    The supreme court has already ruled that this is protected free speech. Why the hell is anybody wasting time harrassing this man? You can't charge people with a crime because you don't like their taste in art.

    You can't say "Oh, this means that he's a pedophile, and even though he hasn't done anything to anyone, we think he's thinking about it."

    It makes me want to create children faces (or maybe use famous child actors) with their faces affixed to nude bodies (maybe generated ones) in politcal parody cartoons about this and mail it to these backwards asshole prosecutors. See what they do with two controversial activities already ruled as protected.

    People who say things like "the guy is clearly a pedophile and should be removed from society" have it totally wrong, you can't charge someone based on a personal assumption - for good reason...That kind of shit would make it easier for all of us to lose our rights and people who say such things have a very limited understanding of freedom and the law.

    It's fucking irrelevant what you or I think of how tasteful or disgusting his "art" is - the fact is that he should have the right to create it. Maybe he is a pedophile, maybe he isn't - but you can't brand him that because of "art."

  • Lost Innocence (Score:5, Insightful)

    by unlametheweak (1102159) on Thursday June 25, 2009 @07:17PM (#28475187)

    A man was charged with "aggravated sexual exploitation of a minor" even though
    - no minors were sexually exploited
    - no minors were aggravated
    - there was no sex portrayed in the pictures
    - one of the girls whose face is in a picture is not even a child
    - the person did not even know these girls and had no contact with them
    - And, "... Ernie Allen, president of the National Center for Missing and Exploited Children, said Wednesday." And for some bizarre reason a person who is involved with "missing and exploited children" feels the need to comment about this matter, as if what he has to say is even relevant to the case.

    The real stinger is in this comment:

    "We see it all the time," Allen said. "It makes it harder for law enforcement. It makes it tougher for prosecutors."

    , from the same fanatic of the NCMEC mentioned above. It's obvious that he just wants to see innocent people put in jail. No Logic, no Rationale; just mindless and hateful punishment. He is an obvious advocate for the penal colonies operated in the US. It's sick.

  • by Qubit (100461) on Thursday June 25, 2009 @08:47PM (#28476135) Homepage Journal

    Investigators do not believe Campbell had any contact with the three girls, but "when you have the face of a small child affixed to a nude body of a mature woman, it's going to be the state's position that this is for sexual gratification and that this is simulated sexual activity," Assistant District Attorney Dave Denny said

    "It's definitely on the increase," said Justin Fitzsimmons, a former prosecutor and senior attorney with the National Center for the Prosecution of Child Abuse, part of the National District Attorneys' Association. "People are trying to come up with creative ways to continue to sexually exploit children using digital evidence."

    Great story, but I'm confused about what he did and what he's being charged with. Has the DA described the victim and explained how they're negatively affected in this case? Was this man trying to distribute the mashed-up pictures? Was this man found with the pictures on a personal computer? What happened here?

    The whole reason we have laws prohibiting sex with children or erotic photography of children is that we believe that they are immature and are unable to make clear, well-thought-out, rational decisions about their actions. Well, that and the fact that we're a country descended from Puritans and a bunch of churchgoing folk. When considering similar cases in the past, SCOTUS took the eminently reasonable stance that depictions of child pornography that did not involve actual children were legal. This case is very interesting, as it does involve photos of underage children, but as long as the man did not try to distribute the pictures and took reasonable steps to do so, then what persons were harmed?

    This case is also very interesting as it seems to hinge on taking two completely legal, distributable components -- a picture of a child and a picture of pornography -- and making something illegal by blending the two. This distinction has an important legal distinction with physical objects all the time, as it is illegal to distribute large quantities of explosives such as ANFO, but legal to distribute fuel oil and fertilizer unblended and separate. With pictures and print, aside from possible slander/libel charges due to misrepresentation, I can't think of any situation in which the mashup of two legally distributable documents would be found to be illegal.

    It will be very interesting to see how the court deals with this case.

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