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.

[FellowConspirator]

Southpark Creators Beware...

You came really close to Utah-style kiddie porn with the last couple <br />of episodes... How dare you exploit Kyle and Cartman that way! <br />Where's the outrage?!

[Dalkorian]

funny

I thought of that too. Also, the "Christmas Critters" really pushed <br />the boundry in the most recent episodes - would that qualify as bestiality? Even though it was the "beasts" instigating it?<br /><br />Man the religious wackos have really done a number on us, haven't <br />they. Even comedy is becoming suspect in today's messed up <br />world.

[Stating]

Is Phoney Intelligence Data Illegal?

Curveball. Yellow Cake. Mobile weapons labs. "Hundreds of tons of chem and bio". These stories were all manufactured and got us into an unjust and unwinnable war. Is this not illegal? Must we not protect the children from this?

[idkayaker]

Male pattern baldness linked to Iraq war

No its not. I think we should also bomb Iran and then your dumb A!!. By the way we could win if you and others like you of a single mindedness with blinders on were to start singing a different tune. By the way what was the topic of discussion? Oh yea legality of computer animated images of children. I see the connection NOT.

[alflanagan]

Questionable

Was this really a "harmed minors" conviction, or was it just a "conduct a Utah jury thinks is creepy" conviction? God knows I'm no friend of child porn, but this seems like an odd case.

[teh_chrizzle]

devil's advocate

so, if i draw two stick figures having sex, and one stick figure is way smaller than the other, is that kiddie porn?<br /><br />how about if two stick figures of the same size are depicted having sex, but i write "jack and jill, age 7" as the caption, is that kiddie porn?<br /><br />suppose i use a computer to photoshop a picture of one of your kids into something indecent. the kid is real, but the picture is fake, is that illegal?<br /><br />if i draw a picture of an underdeveloped girl having sex, but i have drawn pointy ears on her, is that illegal as well? other than the ears she could be under age, but she is clearly an elf that is centuries old.<br /><br />what about all those japanese cartoons with girls in catholic school uniforms being assaulted by tentacles? that stuff is clearly illegal, right?

[idkayaker]

I agree

If it goes to the supreme court it will and should be thrown out.

[inetdog]

All good examples to think about, but not relevant to this case.

I agree that once you slip over the line to allow artistic depictions and virtual images without any corresponding real children to be considered child pornography (there is less argument over whether they are just pornography!) it is very hard to get any two people to agree on where to draw the next line. <br />But in this case, it really sounds like no evidence was presented (and the defense lawyer at trial never argued) that the images were not real children. <br />That does leave open the question of what is a sexual act though. <br />And it does not change my feelings about whether my children should be looking at such things.

[RWallaceJD]

Stick people and other drawings...

These are very good questions -- at least the first few. The short answer may be that if one wishes to employ a computer to draw, say stick figures having simulated sex where one stick figure larger relative to the other stick figure, it is best not to do so in the great state of Utah. Hopefully, this case will be appealed ... to clear up Utah's apparent confusion. But, one might agrue that art (and porn) is in the eye of the beholder, community decency laws notwithstanding.

[georgescott]

These were real children

The jury found that the children were real not Southpark drawings. Seems clear enough that this guy is strange, and certainly dumb for browsing porn worse, child porn at the library!

[idkayaker]

Who are they?

What child was harmed? Are their names being withheld to protect the innocent?. They are not real children. Is Popeye the Sailor Man a real person? Please.

[BCF1968]

Juries are dumb

"The jury found that the children were real"<br /><br />Yeah and some jury said OJ and Robert Blake were innocent.

[inetdog]

Read the story, not the HEADLINE.

I would agree with those who, in other CNET News articles have complained that the headline misrepresented the body of the story. <br /><br />There are two issues here which are real: <br /><br /><br />The first is whether pictures on a monitor and on a disk constitute "computer-generated" images because they were not on paper or film. Hard to argue this one, in my opinion. <br />The second is whether the judge's instruction that they had to find the defendant guilty of either A or B (which was defective in that B was not not illegal) is grounds to overturn the jury's finding that he was guilty of A. Or possibly that it is grounds to overturn if the jury did not say explicitly whether it was relying on A or B to convict, when only evidence of A had been presented. <br /><br />Much as I favor First Ammendment rights, I have to agree with the Utah Supremes on this one. Although the validity of the second point is one which is a matter of law rather than common sense, and so I can't really address that part.

[oconnmic]

Computer Generated Images (CGI)

CGI is by generally accepted use refering to virtual images not real images. So when they talk about CGI in the law they are in effect referring to highly realistic "cartoon" images.

[Hoser McMoose]

Awful wishy-washy statement from the judge

As per the judges conclusion:<br /><br />"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."<br /><br />and also:<br /><br />"... 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."<br /><br />So basically it's up to the jury to decide if the children are real or virtual, if they are of age or under age and if they are or are not engaged in feigned sexually explicit conduct.<br /><br />This is putting a LOT of bearing on how the Jury FEELS rather than on any facts. Now I don't know about the specifics of this case, it could be pretty cut and dry, but it definitely sounds like there's a LOT of room for error here where the facts simply don't matter.<br /><br />I don't know about the rest of you, but if you showed me 10 pictures of youths ranging from 16 to 19 I definitely couldn't pick out with much accuracy which are minors (16 and 17) and which are adults (18 and 19). I've also seem some VERY convincing photoshop pics with celebrities heads on porn, so that tells me that I couldn't necessarily tell if the images were computer generated with much accuracy either. And the feigned sexually explicit acts? That's HUGELY up to the judgement of the person viewing the image. What one person might view as pretend masturbation, another might view as simply picking a wedgie!<br /><br />The end result could be a frighteningly broad definition of 'child pornography' based more on the background and beliefs of the appointed jurors rather than on the details of the case itself.

[smthopr8r]

Everything's illegal

Face it. The government has made so many vague laws that everyone is quilty of breaking the law. I heard a lady complaining at Sam's club over the naked picture of a baby on the diapers.<br />Land of the dumbfree and freedumb.<br /><br />Jury's can ignore judge instructions. They have supreme power and often exercise it in tax cases since there is no law requiring most to file and pay a tax. When images are illegal, next comes thought. Next comes what they think you thought etc.

[dayebreak]

Put Large Breasts on Those Stick Figures

For those wondering how the current law applies to stick figure drawings, cartoons, paintings and sculptures, as well as computer images of alleged minors, it falls under Title 18 USC 1466A: <a class="jive-link-external" href="http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html" target="_newWindow">http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001466---A000-.html</a><br /><br />And if you don't think the DOJ uses it, ask Dwight Whorley whose case is detailed in the November 2006 issue of the U.S. Attorneys Bulletin: <a class="jive-link-external" href="http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf" target="_newWindow">http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf</a><br /><br />A question that politicians, media (including Cnet) and others fail to ask is how does a website with the name "littlegirlsextreme" get on the Internet? A Registrar accepted payment for that domain name, and a Registry was given a cut, as was ICANN. Chances are it was hosted in the U.S. as well.

[oconnmic]

Are we serious about child exploitation or is it just a game?

Notice the caveat in the law that depiction of a minor is illegal only if the depiction "lacks serious literary, artistic, political, or scientific value". Back in the day (I mean the 50's and 60's) they showed "sex education" films in theatres which depicted various sexual positions in an educational fashion in explicit detail and get around pornography laws. Are we serious about it or is it just a game?<br /><br />All of this reminds me of the fact that you can't be compelled to give a DNA sample without a court order but the police can follow you around until you discard some article with your DNA on it and use that. What's the point. Either you have freedom and privacy or you don't. <br /><br />It's all just a game. It seems you can do anything you want if you know the rules and how to play them to your advantage

[smthopr8r]

Everything in the US is illegal

That's why it's called the land of the dumb free, I mean, freedumb

[grayboe]

Man or Woman

This is really a man dressed as a woman. The article always refers to him as "she" despite admitting that he is not female. As a juror this would make a big difference to me. This is a man looking at little girls in the nude.

[play7]

Go to www.secondlife.com

You want to see alot of this type head over to www.secondlife.com....<a class="jive-link-external" href="http://slurl.com/secondlife/Isabel/44/244/79/?title=The%20Shelter" target="_newWindow">http://slurl.com/secondlife/Isabel/44/244/79/?title=The%20Shelter</a> and see how much sex you find.

[tpegan]

how do you determine the age of a computer generated image?

There are all sorts of illegal and anti-social acts that can be committed on computer games. I'm thinking "Grand Theft Auto" as a good example. If computer-generated porn really does promote this behavior then let's be consistent and make all computer-generated/simulated acts just as illegal as they would be had they involved real people.

[stuntman_mike]

I'm not sure why you care if it is a man or woman graybee.

Both men and women are equally capable of molesting children. I hope that you would not be more lenient to women if you were on a child exploitation case that involved a female defendant.

[BCF1968]

Utah=IDIOT STATE

I guess they expect 2257 info on computer or animated porn to make sure the "performers" are at least 18 years old. God knows we don't want any animated "children" being exploited and growing up and becoming drug users or molesters themselves.<br /><br />Utah needs to spend more time protecting REAL children. You know the kind they allow to become the 15th wife of some 40 year old Moromon.

[TGallag69]

Poser?

Doesn't that make "Poser", a consumer level 3D Animation program, illegal to use in the state of Utah? It comes with a few nude child models.