Michigan Supreme Court Upholds Child Porn Conviction Based On Drawings Of Fictional Character

 

The statute notably does not define what a picture is for the purposes of a charge.
The court held that it did not matter if the picture was fictionalized under the state statute:
Thus, the statute is divided such that subpart (i) covers depictions that were created using any part of an actual person and subpart (ii) covers depictions that were not created using any part of an actual person. Under subpart (ii), a depiction is criminalized, irrespective of whether it portrays an actual, real-life person, so long as it meets the definitions in MCL 750.145c(1)(b); that is, the depiction “[a]ppears to include a child” meaning that it appears to include, or conveys the impression that it includes, a person who is less than 18 years of age. Thus, defendant’s argument that his conduct did not violate the statute because his drawings were of a fictional child “Becky” instead of a real child necessarily fails because the drawings unmistakably conveyed the impression that a person less than 18 years of age was engaging in sexual activity. We also note that, while the drawings were hand-drawn, there is no mistaking that the drawings represented a human child—they were not outlandish “cartoons” that did not reasonably resemble a person. As such, the drawings were more than sufficient to meet the definitions of subsection (ii).
That means that a purely fictionalized character created out of the Defendant’s mind constitutes child porn.  The obvious comparison is with Ashcroft v. Free Speech Coalition535 U.S. 234 (2002), where the Court struck down parts of the Child Pornography Prevention Act of 1996 dealing with virtual child pornography.  Such computer generated images were viewed as raising serious first amendment issues. In this case, the drawings were done by hand but created in the mind of the defendant.
Notably, this was a Kennedy decision.
Here is the opinion: Czarnik decision

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Res ipsa loquitur – The thing itself speaks
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