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

Published: Friday, Feb. 10 2012 8:19 p.m. MST

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.

The Ashcroft case refuted the notion that viewing a 14-year-old girl engaging in a sex act is viewing child porn if the actress is actually a woman of 19. Without the Ashcroft ruling, attorney Louie Sirkin said,  films such as American Beauty or Fast Times at Ridgemont High could have been classified as "child porn," because of the depictions.

"If it is not a real child, regardless of what role is being played, it does not violate any child porn law."

Sirkin, the victor in the fight to protect the entertainment industry against legal assault, said the case protected artistic expression through simulations.

"I can simulate a murder in a movie and no matter how realistic I can make it look, it is not a murder," he told the Deseret News. "You can call it anything you want, but it is not a murder. You cannot make a daffodil a rose."

The Ashcroft ruling solidified case law that said unless there is an actual "victim" of child porn — which is not the case in cartoons or is questionable in virtual pornography — there is no crime.

Congress struck back the next year with the PROTECT Act, which said if the depicted  images are so "indistinguishable" that an ordinary person would conclude they are the real thing — those images are not protected. Exceptions include drawings, cartoons and sculptures.

For Paul Amann, the prosecutor assigned to the Internet Crimes Against Children Task Force,  the PROTECT ACT has made the law clear regarding the prosecution of child pornography.

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