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Should Fake Child Pornography Mean 10 Years in Federal Prison?

A 73-year-old man from New York was just arraigned in federal court on child pornography charges after he allegedly threw away hundreds of printed images of adults engaged in sexual activity but with children's faces, and sometimes his own, pasted over those of the participants. No children were involved in any sexual activity in the photographs.

Traditionally, the idea that possession of child pornography should be illegal is based on the fact that, in every pornographic image depicting children, actual children were being forced to engage in sexual activity. It's not illegal simply because it disgusts people; it is illegal because it directly harms the children depicted.

However, two federal precedents from the U.S. Courts of Appeal for the 2nd and 6th circuits have held that the possession of fake child pornography, and false offers to distribute child porn that one does not possess, both meet the criteria of the federal child pornography statute. New York is in the 2nd circuit (Florida is in the 11th), so this man was charged with having child porn even though it wasn't real.

Previous cases have involved images that appeared to depict children involved in sex acts but were actually digitally altered photos of adults. The two federal circuit courts found that the government had a legitimate interest in protecting the children whose images were used to create the fake child pornography.

However, much controversy continues about whether fake images, which involve no sexual abuse of children, should actually be considered child porn or might be better handled as a separate and different crime. There are also some First Amendment issues still at play.

The 11th Circuit, the federal circuit that covers Florida has not ruled on the issue of whether fake child porn should be illegal under the federal child pornography statute. However, a Florida state court of appeals has already overturned a conviction in a case very similar to this one.

If the New York man is convicted, he faces up to ten years in federal prison. Do you think that possessing photos where children's faces are pasted over the faces of adults engaged in sexual acts should be prosecuted under the child pornography statute?

Source: Thomson Reuters News & Insight, "N.Y. man charged with possessing cut-and-paste child porn," Jessica Dye, Jan. 25, 2013