Defeating the virtual defense in child pornography prosecutions.

• Author: Kreston, Susan S.

1. INTRODUCTION

   The recent Supreme Court decision of Ashcroft v. Free Speech Coalition (2) has led prosecutors and investigators of child pornography to re-examine and anticipate how they will prove the elements of their case in child pornography prosecutions. Specifically, Ashcroft and its progeny now require the government prove that (1) the image is that of a real child, as opposed to one that is entirely computer generated or virtual, (3) and (2) the defendant possessed the requisite scienter to commit the crime, that is, that the defendant knew that the image was real. (4) This article will examine how these cases can continue to be vigorously and successfully prosecuted in light of the virtual defense.

2. ASHCROFT AND ITS AFTERMATH

   In the 1990s, as technology took great strides in achieving lifelike images, some came to believe that child pornographers might soon be able to use commercially available software to create images that appeared to be children engaging in sexual conduct without using any real children in the production. These virtual images, created completely through computer generation and without any part of a human being child used in their creation, (5) might be used to try to evade the ban on child pornography created using real children set out in Ferber v. New York. (6) Many feared these virtual images could create a potentially insurmountable defense to criminal prosecution of those who created, distributed or possessed child pornography. These images might also be used with impunity to groom the next generation of victims, by using these images to lower the resistance of real children to being sexually exploited. (7) Many looked for a way to prevent the harm to real children by the sexualization and eroticization of minors in child pornography, whether created by exploiting real children or through the use of virtual images.

   With this as a backdrop, in 1996 the Child Pornography Prevention Act (8) (CPPA) expanded the definition of child pornography to include images that "appear to be" (9) or "convey the impression" (10) of being minors. (11) Congressional intent in expanding the scope of existing legislation was threefold. First, to prevent the use of virtual images whetting the appetite and feeding the fantasies of pedophiles/child abusers. (12) Second, to destroy the network and market for child pornography. (13) Third, to prevent pornographic depictions of children being used in the seduction or coercion of other children into sexual victimization. (14) It was also posited that this would close the loophole of defendants claiming, in every case where the government could not call a witness who was personally acquainted with the child, that the image was of a virtual child. (15)

   The new language employed in the CPPA was successfully challenged as being overbroad and violative of the First Amendment in Ashcroft v. Speech Coalition. (16) In Ashcroft, the Supreme Court held that the precedent set in New York v. Ferber, (17) that the First Amendment afforded no refuge to child pornography, (18) applied only to images of real children. Ashcroft further stated that even if virtual images were used to groom a new generation of victims, that was not a compelling state interest sufficient to overcome the respondent's right to the images. (19) The Court was concerned only with the circumstances surrounding the creation of the image, not the consequences of its creation. (20) The Court also rejected all of the underlying Congressional intent behind the Act and dismissed any link between virtual child pornography and harm to real children. (21) Finally, in what can only be described as a theory notably lacking in references to either academic or empirical research, the Court went on to state that the existence of virtual child pornography might even lessen the exploitation of real children. (22)

   The backlash against this decision was immediate and vociferous. Within months, the PROTECT Act (23) was created. Under the act:

   [C]hild pornography means any visual depiction, including any 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 such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. (24) Indistinguishable is defined as:

   indistinguishable used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults. (25) Against this backdrop, the ability of prosecutors to continue to accept and successfully prosecute child pornography cases will now be analyzed.

3. PROVING THE CHILD IS REAL

   The ability to prove each element of the crime beyond a reasonable doubt is the hallmark of criminal prosecution. While one potential strategy would be for prosecutors to proceed against child pornography cases as obscenity cases, (26) this article will deal only with those prosecutions that go forward under child pornography statutes. In child pornography cases, it is the burden of the government to prove that the image charged is that of a real child. (27) How the government will meet that burden will depend on whether and how the defendant chooses to raise the defense of the images being virtual. It must be remembered that the defense in these cases is not that the images could have been slightly digitally altered, or that some small part of the image could have been computer generated, but rather that the image was entirely created without a real child.

   (A) When the Defendant Offers No Evidence Regarding Computer Generated Images

   Fortunately for prosecutors, there were a small number of cases that pre-dated Ashcroft dealing with claims of the government failing to prove the images were of real children. In the early case of United States v. Nolan, (28) the defendant claimed error as the government did not call an expert in photography to prove the images were of real children. The government relied on the testimony of a pediatrician and the images themselves to prove its case. (29) In Nolan, the court found that a non-expert fact finder could use "reasonable inferences derived from experience and common sense" to determine that real children where used to make the image and that the prosecution was not required to call a photography expert to counter mere speculation that the photos were faked. (30) Twelve years later in United States v. Vig, (31) the defendant claimed that the government had presented insufficient evidence to prove that real children were in the images. (32) In Vig, the court similarly stated the "images were viewed by the jury which was in a position to draw its own independent conclusion as to whether real children were depicted." (33) The government was not required to produce an expert witness to counter "unsupported speculation" that images could have been made without using real minors. (34)

   In the wake of Ashcroft, the government must first be prepared for the scenario where the defendant simply throws out the possibility that the images were computer generated without offering evidence to that effect. Under the "speculation" fact pattern, case law continues to support the proposition that mere or unsupported speculation regarding the images does not require the government to call a graphics expert to address this issue. (35) Rather, the government must simply build a sufficient evidentiary foundation to support the trier of fact's finding that the images were of real children. Obviously, the easiest way to defeat this defense is to call a witness who is personally familiar with the victimized child. While some progress is being made in identifying sexually exploited children (36) and calling or offering to call law enforcement personnel who worked on their cases, (37) the majority of the children in the visual depictions are currently unknown and unidentified. (38) Were the only cases to be prosecuted those with identified victims, the number of perpetrators of child sexual victimization to escape justice would escalate exponentially. (39) In sum, it would be a surrender to child pornographers. As such, other ways must be found to defeat the digital defense of the virtual image.

   Of paramount importance in preparing for the digital defense is the choice of images charged by the prosecutor. Just as a prosecutor may choose pre-pubertal images to avoid any question of the victim's underage status, so should the prosecutor choose only the images that leave the jury with no obvious questions as to whether the pictures or video are of real children. Not only should the content of the images be considered, but their form must be weighed. For example, if given the choice between charging thumbnail (40) images and full images, full images would be preferred as the jury will be better able to examine them.

   The quantity of images should also be considered, as it is far more difficult to claim that hundreds of images are virtual rather than only two or three. If the defendant has multiple images of the same child, multiple charges based on multiple images of that same child would increase the level of expertise necessary to maintain the absolute consistency of such variables as lighting, body proportions, background and other details. In line with this logic, the expertise...