Police Blotter: Is computer-generated pornography illegal?

Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Utah woman appeals guilty verdict after jury was told "computer-generated images" of nude minors are illegal, despite a U.S. Supreme Court ruling overturning a similar federal law.

When: Utah Supreme Court rules on October 26.

Outcome: Guilty verdict upheld.

What happened, according to court documents and other sources:
A few years ago, the U.S. Supreme Court ruled that a law banning certain computer-generated images of unclothed minors was unconstitutional.

The Child Pornography Prevention Act prohibited possessing "any visual depiction" including a "computer-generated image or picture" that "appears to be, of a minor engaging in sexually explicit conduct." In its majority opinion citing the First Amendment's guarantee of freedom of speech, the court ruled: "The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional."

That might seem pretty straightforward. Except, that is, for the justices on the Utah Supreme Court.

Credit: Utah's Right to Know

Lexis Alinas

The case in question deals with a defendant named Lexis Alinas, 47, who was allegedly spotted by a librarian in the University of Utah's Marriott Library looking at a Web site called "Little Girls Extreme."

The librarian alerted library security, who spoke with Alinas and confirmed that she had been viewing child pornography. University police were called in, and Alinas was arrested and searched. The search discovered two floppy disks in Alinas' coat pocket, which the officer said contained images of nude female children, along with images of nude adult women.

Alinas' testified during her trial that from a very young age she had struggled with her sexual identity and had been dressing as a woman for approximately 17 years. She said considers herself to be a woman. The pictures, Alinas said, were downloaded to aid in her search for self-awareness and to "represent the way I felt that I should have been born." A Deseret News article reported that Alinas' driver's license said she was female, that she tried hormones to develop breast tissue, and that she could not afford a sex change operation.

The argument failed. Alinas was charged with seven counts of sexual exploitation of a minor and a jury found her guilty on all counts. She was given a suspended sentence with credit for 607 days served and placed on probation for three years.

What makes her case relevant to Police Blotter is the judge's singular jury instruction. Jurors were told that, to convict Alinas, they had to determine that she possessed a "visual depiction, photograph, picture or computer-generated image or picture of a minor engaging in sexually explicit conduct."

That could run afoul of the U.S. Supreme Court's ruling in 2002 in the Ashcroft v. Free Speech Coalition case, a point that Alinas' defense attorney made. But both the trial judge and the Utah Supreme Court disagreed, and affirmed her conviction.

Excerpt from Utah's state law (U.C.A. 1953 Sec. 76-5a-2), emphasis added:
"Child pornography" means any visual depiction, including any live performance, photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where:

(a) the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct;
(b) the visual depiction is of a minor engaging in sexually explicit conduct; or
(c) the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

"Sexually explicit conduct" means actual or simulated...

"Simulated sexually explicit conduct" means a feigned or pretended act of sexually explicit conduct which duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.

Excerpt from the Utah Supreme Court's opinion:
The instructions in this case, taken verbatim from Utah Code section 76-5a-2, require that the jury, in order to convict, find that Alinas knowingly possessed child pornography, which was defined as "any visual depiction, photograph, picture or computer-generated image or picture of a minor engaging in sexually explicit conduct."

Alinas focuses his argument on the instructions' use of the term "computer-generated," a common phrase between the CPPA and the instructions in this case. He argues that the use of this language potentially allowed the jury to convict him for possessing "virtual child pornography," which Ashcroft forbids.

We disagree. Ashcroft appears to have based its holding on the "or appears to be" language of Sec. 2256(8)(D) The CPPA prohibited images that "appeared to be" children, but which were in fact not... The jury instructions in this case did not allow conviction for possession of what "appeared to be" child pornography, but, rather, clearly required that the jury find that the pictures were of "a minor engaging in sexually explicit conduct." The instructions further defined "minor" as "a person younger than 18 years of age." The instructions allowed conviction only upon a finding that the pictures contained actual, and not virtual, children.

We also reject Alinas' argument that the instructions are invalid because a jury could conceivably convict a person for possession of "virtual" images under a mistaken belief that the term "computer-generated image" included such images. The images possessed by Alinas in this case were clearly of real children, far below the age of majority...

Alinas claims that the state failed to prove the age of the children depicted. He also claims that the state failed to prove that the images depicted real children. To qualify for regulation under Ferber, and to avoid violating Ashcroft, child pornography must depict a real, non-virtual minor. As such, Alinas argues that the only way the state can prove beyond a reasonable doubt that the pictures were of actual children under eighteen years of age is through the introduction of expert testimony. Because no expert testimony was given in this case, Alinas claims the state failed to meet its burden.

Alinas cites to no case that supports his claim, and we have found only cases that express the contrary view. For example, courts have generally held that the jury themselves, through visual examination, are capable of making the determination whether the children depicted are under eighteen years of age. Likewise, every federal circuit court to address the issue has held that a state may prove that images of children are real, as opposed to virtual, merely by allowing the fact finder to examine the images themselves

We are of the same view. Whether an image depicts a virtual child or a real child is a question of fact for the jury. Also, whether the children depicted are minors is a question of fact for the jury.

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