Police say Powell's child porn animation images were not a crime

SALT LAKE CITY  — Animated child pornography images found on Josh Powell's computer were controversial enough to provoke more questions in the child custody case involving his two boys. But they did not rise to the level of a criminal offense.

Although the images resembled people — in a fashion — they obviously were not real, according to Washington police. That is key in determining whether images are in violation of state and federal child pornography laws.

If depicted images are so "indistinguishable" that an ordinary person would conclude they are the real thing — those images are not protected speech and prosecution can occur.  It is an area of law that is evolving as law enforcement tries to keep up with technology.

The animation on Powell's computer shows a family with children about ages 7 and 8, but the characters were not meant to look like real people, Pierce County Sheriff's Detective Sgt. Ed Troyer said.  "It depicts pornographic acts, it's incest in nature."

Some visual depictions of sex acts with minors remain constitutionally protected and are likely to stay that way well into the future, experts in First Amendment law said.

"It is not the fact that the stuff is disgusting that allows you to say that you can't even have it," said Andrew McCullough, a Salt Lake attorney who specializes in defending free expression and speech under the First Amendment.

McCullough said the existence of such images, while not illegal, would certainly be up for consideration of a child's safety and well-being in a civil custody case.

"Anything that a person does to indicate they are off balance is fair fodder for an investigation regarding child custody," McCullough said. But a  cartoon with no obvious victim does not "hurt" a child, in and of itself, he said.

"What you are really trying to do there is criminalize an idea. We do not arrest people for ideas in the United States."

A 2002 ruling in the U.S. Supreme Court case, Ashcroft v. Free Speech Coalition, was alternately seen as extending protections to the motion picture and entertainment industry while creating a window of opportunity for child porn purveyors.