Peters sees this very differently. ‚ÄúI wouldn‚Äôt bring a case unless we believe someone is sexually interested in children,‚ÄĚ he told TCJ. Peters points to Kutzner‚Äôs admission to being a viewer of actual child pornography, and to his position as a middle-school teacher. It was these two factors that drove investigators to such lengths to find charges for which they could prosecute him.
According to Peters, this is the first time the statute has been applied in this way in Idaho. It is unlikely to be the last ‚ÄĒ nothing spurs imitation like success. After the sentencing, Peters told TCJ about a case his office is currently pursuing in which an Idaho man traveled four hours to have sex with what he thought was a 13-year-old. The man had in fact been communicating with an undercover officer. When the man was arrested, his computer was seized, and ‚Äúanime porn‚ÄĚ was found. Depending on how the case proceeds, Peters told me, they might use 1466A, the statute involved in these cases, to bring charges. Peters sees the statute as a useful tool in pursuing cases in which they would otherwise have less leeway. ‚ÄúObscenity isn‚Äôt my interest or my forte, but it was the tool that was available to us.‚ÄĚ
Much of the early reporting on all three of these prosecutions confused, misunderstood or completely ignored the legal distinction between ‚Äúchild pornography‚ÄĚ and ‚Äúobscene visual representations of child sexual abuse.‚ÄĚ The blurring of this legal distinction is a natural, although regrettable, mistake ‚ÄĒ the underlying legislation being used in these prosecutions is designed to draw bright lines linking these two concepts together, all while keeping them legally distinct from each other.
The Child Pornography Protection Act of 1996 was the government‚Äôs first stab at outlawing ‚Äúvirtual‚ÄĚ child pornography, which was broad enough to have potentially outlawed works like Lost Girls, ‚Äúschoolgirl‚ÄĚ spreads in Maxim magazine, or the Zefferelli Romeo and Juliet.¬† The Supreme Court overthrew the legislation in 2002, in Ashcroft v. The Free Speech Coalition, on the basis that it was overly broad, and unconstitutional under the First Amendment due to it ‚Äúabridg[ing] the freedom to engage in a substantial amount of lawful speech.‚ÄĚ Although it was overthrown, that very same ruling supplied legislators with the tool they needed to get their ban on virtual child pornography, portions of 2003‚Äôs PROTECT Act, to pass constitutional muster: an obscenity test.
The statute under which all three men were prosecuted, Title 18 U.S.C. 1466A, isn‚Äôt simply a ban on obscenity; it is a specialized statute that preserves the constitutionally necessary legal distinction between ‚Äúvirtual child pornography‚ÄĚ (which is supposedly protected speech) and child pornography (which involves the exploitation of actual children), while enshrining them in law as similar by the way in which the penalties for ‚Äúobscene‚ÄĚ instances of the first are cross-referenced to the second. Effectively, ‚Äúobscene‚ÄĚ ‚Äúvirtual child pornography‚ÄĚ is not legally the same as ‚Äúchild pornography‚ÄĚ ‚ÄĒ except that for the purposes of sentencing, it is. If this seems confusing, it‚Äôs probably because it’s designed to be. The entire statute is a deceptively simple piece of writing that manages to chill vast areas of protected speech while still narrowly dodging the Supreme Court‚Äôs previous ruling.
To see evidence of the desire to deter and curb similar works, you don‚Äôt have to look any farther than Steven Kutzner‚Äôs Sentencing Memorandum, which states that ‚Äú[o]ne solution in effectively combating the rising tide of the sexual exploitation of children has been for legislatures to authorize penalties severe enough to sufficiently deter those who might have a sexual interest in young children from ever beginning the practice of exploiting children for sexual purposes.‚ÄĚ Using descriptions of the images in question, as well as pages of information regarding the images Kutzner was not prosecuted for (as per the plea agreement), the prosecution sets out its case to the judge for a significant amount of jail time, stated as a necessity for deterrence. (Ultimately Judge Edward J. Lodge settled on 15 months ‚ÄĒ 3 months under the minimum amount of time recommended by federal guidelines, but still a significant period of time.)
Unintentionally, the Sentencing Memorandum also sets out a possible argument against the case for deterrence in its liberal quoting from Kutzner‚Äôs psycho-sexual evaluation. It is noted that Kutzner claims ‚Äú[he] was initially viewing adult pornography but he was looking for something more taboo, which eventually led him to viewing child pornography,‚ÄĚ and that he ‚Äústated that his life had been so bland that he saw the viewing of child pornography as ‚Äúdangerous‚ÄĚ and a form of ‚Äúthrill seeking‚ÄĚ because he knew it was wrong and against the law.‚ÄĚ Kutzner’s counsel agreed that for many of the people he represents, making certain practices or interests taboo can trigger greater interest. ‚ÄúSuppression, suppression, suppression will always lead to curiosity,‚ÄĚ Carr said.
In comics circles, discussion of these three prosecutions has typically been accompanied by speculation as to the legality or illegality of various comics, with Lost Girls, Robert Crumb’s ‚ÄúJoe Blow,‚ÄĚ and various manga titles being the most common items of discussion. Temporarily putting aside the vagaries of obscenity charges, is it possible that a work of ‚Äúserious literary, artistic, political or scientific value‚ÄĚ that also depicts sexual conduct in a ‚Äúprurient way‚ÄĚ could be transformed, via a change of context, into an ‚Äúobscene‚ÄĚ work? Could the difference between a legally defensible work and an ‚Äúobscene visual depiction of the sexual abuse of children‚ÄĚ be based solely on what books are next to it on the shelf? How much of a work has to remain for it to be legally defensible? Although Lost Girls might pass muster, how about a single panel from Lost Girls? Does it matter if that panel has or doesn‚Äôt contain dialogue?
Discussing the issue with TCJ, Peters acknowledged that ‚Äúin the child pornography arena, context can matter,‚ÄĚ going on to detail the typical ways in which, in the photographic realm, legitimate uses of photography of children (medical, crime investigation, family snapshots, etc.) can be transformed by context (amount of similar images, labeling, dialogue bubbles on images detailing fantasies, etc.) into child pornography.
In the case of any obscenity trial that involves comics, the very methods by which the prosecution is allowed to present a case work to strip away context, and in and of themselves can create an ‚Äúobscene‚ÄĚ work from a legally defensible one. Consider this statement by Handley‚Äôs counsel, detailing the hopelessness of a jury trial: ‚Äú[Handley] could defend the images which, when projected on an 8?x8? screen on a courtroom wall, an Iowa jury certainly, and any jury probably, would have likely agreed they do not want in their community.‚ÄĚ In Handley‚Äôs case, these problems were compounded by the fact that the comics were in an untranslated foreign language.
A single panel, or even a series of panels, removed from the original context (i.e. the entire work) cannot accurately represent the work itself ‚ÄĒ that‚Äôs why the Miller test specifically directs that a work be ‚Äútaken as a whole.‚ÄĚ And yet, in practice, that‚Äôs precisely how they are being judged. In Kutzner‚Äôs case, the judgment of obscenity rested significantly upon the context Kutzner had created for the images by placing them in a folder labeled ‚Äúporn.‚ÄĚ Even his collection of ‚Äúchild erotica‚ÄĚ was judged not solely by the images, but by their volume. Likewise, single panels projected larger than life before a jury twist the original work via a shifting context. In essence, a prosecutor presenting a jury with evidence in this way is participating in the same work of transforming context as the collector of pedophilic material with his stack of bath photos and Sears catalog clippings.
When we look at cases like these, our initial impulses can be to judge the defendants ‚ÄĒ to read the arrogant and swaggering press releases of the prosecuting organizations, and then take the scattered details of their crimes and pluck them from the lives, from the contexts, of the very real people involved. Dwight Whorley, Christopher Handley and Steven Kutzner are real people with real lives, and our judgments of them have real consequences.
Although the three are all very different men whose backgrounds vary widely from each other, they are connected through their prosecution. What all three cases have in common is a failure on the part of the law to acknowledge the difference between thought and action, a failure to state definitively that there is a difference between a depiction of an act and the act itself. A failure to acknowledge that a law that can be applied selectively and even whimsically is a law ripe for potential abuse.
Those of us that feel strongly about these issues and don‚Äôt speak out are complicit in this failure.
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