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

42 thoughts on “Michigan Supreme Court Upholds Child Porn Conviction Based On Drawings Of Fictional Character”

  1. Where are all the social scientists on this? If there is credible (peer reviewed) research supporting the tendency of porn to encourage the compulsion that leads to assault, then this is a no brainer: keep him in as long as he is compelled to feed this twisted need.

    1. This is the attitude that puts children at risk. The credible (peer reviewed) research supports the exact opposite of your twisted conclusion. Or didn’t you hear, masturbation is safe sex.

  2. I’m generally liberal on most issues, but in this case I am for the defendant. What if he had an inflatable doll of a child, and had sex with it? I can’t see how it can be child porn, unless there are actual children involved.

  3. There needs to be an amendment to the Constitution to enshrine freedom of thought, as distinct from freedom of speech, as an absolute right without limit. What someone may write or draw privately, without publication to another human being, represents thought and is outside the purview of the state, no matter the content of it.

  4. The anomaly we have is that law, custom, and manners no longer recognize proper sexual expression as normative. Every time of deviance is legitimate bar paedophilia. Paedophiles are subject to draconian penalties for gross but not injurious behavior. (See the chap in Indiana who received a minimum sentence of 15 years in prison for looking at pictures of naked children who were not engaged in any sex acts. The man who took the pictures (of friends of his children through a peephole in his bathroom) received a minimum sentence of 27 years. Or see the Congressional aide who committed suicide after a police raid on his home. They sent a SWAT team to execute a no-knock raid (busting down the door with a battering ram) to take possession of a computer and a flash drive owned by a 35 year old a gay dweeb who worked for Sen. Lamar Alexander. There needs to be some legal penalty for possession of child pornography. We really do not need to treat it as severely as murder and anticipatory offenses to murder.

  5. Ashcroft v. Free Speech Coalition is very clear: Unless the material involves actual underage human beings in actual sexual situations, it’s not child porn. If this guy appeals to the Supreme Court, he should win—unless, of course, Trump’s new Justice decides to help overturn the Ashcroft ruling, as he or she will so many other rulings.

  6. Second Life and other virtual worlds have uncompromising bans on “ageplay”, sexual role play involving child avatars. These bans apply even if all actual players involved are adults in real life. I think the companies hosting these worlds may have anticipated rulings like this even for virtual representations of children.

    As repulsive as the circumstances occasioning this ruling are, the Supreme Court needs to look squarely at whether it’s permissible to outlaw art that doesn’t require actual criminal offenses in its creation.

    The Court may decide the public welfare allows even private fantasies to be outlawed in tangible form, as they are in this ruling. But it’s a dire enough remedy that ACLU should step in to bring this before the Supreme Court.

    If nothing else, this ruling opens the door to outlawing huge swaths of art and speech not involving child abuse, if boundaries aren’t drawn to prevent that. It’s all too possible for a future local court to outlaw art or speech which offends future plaintiffs for reasons unrelated to protecting children from abuse.

  7. the first amendment and virtual reality are on a collision course. one thing is for sure the big money is behind the right to distribute smut en masse via the internet to as many “people” as possible including all the kids with cell phones watching obscene content daily. it’s a cesspool and Bork was right.

    1. Is “people” in quotes because you are dehumanising people you dislike? Reminds me of someone. Hitlum? Hittle? Hitley?

      … Hitler! That’s the one. Fascist little creep that he was, but still, unarguably human.

  8. Perhaps the answer here is mental illness. He clearly shows a compulsion he is either unwilling or unable to control, to fantasize about sex acts with young children. When I read this blog post, I hoped very much that this man never sees the light of day out in society.

    On the other hand, I see the difference between thought and action. I also understand that no children were harmed by these drawings. However, they do feed the compulsion to harm children.

    Perhaps this behavior can be used as the basis to lock him up as mentally ill and a danger to society.

    I am so torn on this issue, as an advocate of Constitutional freedom. The idea of putting someone in prison for a picture he drew is, on its face, alarming. The idea of ever letting a man get out of prison who compulsively draws the sexual assault of children is equally alarming.

    I cannot get behind criminalizing drawings or writings, no matter how offensive. It’s a slippery slope. However, these are clearly signs of the compulsion to harm children. It’s like a criminal drawing a detailed plan entitled, “What I Plan to Do When I Get Out”.

    There is also a bit of irony in opposing the new California law that snuck by that will open the mental health get out of jail card to all criminals, and yet exploring that option here.

    1. My experience has been that most sexual predators never completely reform. They are just wired to be this way.

    2. There are other forms of speech we outlaw; a man was arrested not long ago for threatening Senator Rand Paul and his family in very graphic ways. We may decide, as a nation, that even publishing fantasies of child abuse falls in that category of impermissible speech. But it ought to be a national decision which has been reviewed by the Supreme Court, to make sure that other speech is protected from a dire deterrent to harm which reverberates through its victims’ lives. We can’t have a patchwork of laws which might leave the way open to censorship unrelated to the protection of children.

      1. We can certainly have a patchwork. Different populations have different standards.

  9. Err on the side of freedom, right? These are creations of his imagination and no children were actually harmed in the process. Got it.

    So the guy is set free. He creates a Facebook page where he and others are free to share their creations. It’s all free speech. Eventually they become so popular that they have their own convention and people dress up like their favorite cartoon characters. More free speech.

    How then do you explain this freedom to the parents of a child that is gang-raped by several men acting out their favorite comic book story they found on that Facebook page or shared at the convention?

    Is this the same emotional appeal made whenever a mass shooting takes place? How do you secure the rights of people that are not actually harming anyone with their fantasies and ensure that free expression of fantasy does not turn into reality?

    1. That is an extreme situation. We have all kinds of fictional depictions of crimes, from bombings to shootings to rapes, none of which we criminalize.

      By the reverse, suppose someone has this attraction and knows the laws. Would it not be better for him to utilize drawings or cartoons to satisfy his unfortunate predilection than relying on the real thing?

      1. Thank you for the comment Justin. I agree that we should not criminalize thought. This is one of those cases that we get from time to time that tests our fidelity to the security of natural rights. With that in mind, as disgusting as this behavior is, if he is not infringing the rights of others, then what he thinks and what does should be protected.

        There will come a time though that someone like this will infringe the rights of others in a horrific way and we’ll be asking why nothing was done when all the signs were there.

  10. If this mutt is found guilty of child porn doodling then the elementary school kids that doodle the game hangman or point a finger and go ‘kapow’ are in for it.

    1. We’ve already allowed schools to infringe on freedom of speech in that way. Unfortunately, most parents don’t have the resources to defend their children’s First Amendment rights in court, and the ACLU probably isn’t inclined or able to help.

      The remedy against overly broad use of this precedent is for the US Supreme Court to examine the case and determine whether “child porn doodling” can be outlawed without endangering other forms of speech.

      The Court may decide to create a bright-line box containing terroristic threats, child pornography, incitement to riot, publication of state secrets and other highly undesirable speech – so that this and only this speech is forbidden. But there’s no telling if future courts or legislatures will be able to add speech we now consider protected by the First Amendment.

      1. There will always be a gray area instead of a distinct line separating what’s inside the ‘bright-lid box’ (whatever that is) and what’s outside the box. The interpretation of this gray area will always be open to extremes; extremes of the moment and extremes of legal self gratification, or both. Children getting bounced from the second grade for inappropriate doodling is a sign of the moment and the pathetic administration of the self righteous, self preserving, and legal guns for hire. There have always been lawyers, administration, self righteous, and those afraid of ‘doing the wrong thing’. The moment that defines this nonsense is now when Americans are armed to the teeth, nut cases routinely slaughter students, and the sacred right to bear arms gun industry impedes the only rational and Constitutional response, regulation. The pathetic responses to the disease, of bouncing elementary students for reiterating their society in a doodle, are maybe all that can be done in light of the refusal to act appropriately and restrict access to guns. The NRA, gun nuts, and the gun industry is against further regulation and consistently advises America to approach the problem through other avenues. Unfortunately some of those avenues are bouncing kids from schools for drawing guns or pointing their fingers and going, ‘Kapow’.

  11. I most sincerely hope this is going to the SCOTUS. As objectionable and unpleasant as what this man has done is, we are still talking the first amendment.

  12. So if someone produces child porn using CGI making the image indistinguishable from a real child is that OK?

    1. It is not “okay.” ….. and it is none of society’s or government’s business …… leave this guy alone …… release him

    2. that’s coming. a serious problem.
      i would suggest we worry about more serious problems of government persecution and over reach however. there is a lot of low hanging fruit.
      i mean is the NSA still searching all our emails without a warrant? apparently everyone forgot about that.

    3. The “uncanny valley” of animated avatars which can’t be told from live people is almost here. And when it arrives, we’ll see lawsuits and criminal cases brought because we forbid graphic depictions of many sexual activities by real actors which at this time are permissible in, say, virtual role play (which can be captured as video files to become movies).

      When virtual space is impossible to tell from real life (or the two are combined in “augmented reality”), we’ll have to decide what to permit and what to forbid, all over.

  13. The Court ruling is in error…but not surprising. Michigan has a rather corrupt Supreme Court when it comes to this and similar subjects, they rule on circumstance and ‘gasp’ rather than fact.

    A cartoon character is not a child – no matter how accurate the ‘depiction’.

    If the (corrupt) Court in Michigan wants to extend legal protection to cartoons – then I wonder if the State of Michigan has a budget allocated for the education and welfare of cartoon characters?

  14. I wonder if the defendant instead drew these depictions having a head of a dragon or a lion would he have been exonerated?

  15. Wow. I’m not certain of the law however I am certain that this is one really sick guy. He obviously can’t control his disgusting fantasies. Eeeew.

    1. I agree that the guy is a serious creep, but I find the law troubling. A person is not allowed to draw pictures, as a matter of his own artistic expression, no matter how offensive?

      1. Putting some one in prison for drawing pictures is creepy …… and using the government as a proxy to do this is creepy.

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