Can You Be Charged with Child Pornography for Looking at Animation?

Have you been charged with owning or distributing child pornography? With the advent of the internet and social media, it's possible that you accidentally downloaded and distributed child pornography without full intent or knowledge of your actions. In animations and drawing (such as anime and manga), cartoon characters that seem like adults may actually depict minors. Many people don't realize that you can be charged with child pornography for downloading and distributing cartoons.

Being convicted of downloading and distributing child pornography can result in your name being added to the California sex offender registry. This can have serious ramifications on your career, your social life, and your family. State and federal prosecutors take very seriously charges of child pornography. Read more below to learn about what the law says, and what you can do to protect your reputation and your rights.

What does California law say?

Most likely, under California law, you could not be charged for ownership or marketing of cartoon child pornography. Prosecutors can convict you on the grounds that you were aware you participated in child pornography (meaning creation, ownership, or distribution), and if you were aware that the victim was a minor.

However, at least one California court has stipulated that, “a real child must have been used in production and actually engaged in or simulated the sexual conduct depicted” (People vs. Gerber, 196 Cal.App.4th 368 (Cal. Ct. App. 2011))

The precedent set by that court case suggests that in California courts you will not face criminal child pornography charges for creation, ownership, or distribution of animated or computer generated images. However, under federal law, you can be charged.

What does federal law say?

In 2003, Congress passed the PROTECT Act, which stands for the, “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today” Act. Under the Protect Act, it is illegal to create, possess, or distribute, "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is ‘obscene' or ‘depicts an image that is, or appears to be, of a minor engaging in...sexual intercourse...and lacks serious literary, artistic, political, or scientific value.” (18 U.S. Code § 1466A). To clarify, under federal law, drawing and animation are considered child pornography, and you can be convicted for possession or marketing of such material.

I didn't know the animated characters were minors!

It is illegal to own or distribute a depiction in which, “an identifiable minor is engaging in a sexually explicit conduct” (18 U.S.C. Section 2256(8)(C)). The word “identifiable” implies that you must be aware that the character represented was a minor.

This means that the onus is on the prosecution to prove your awareness. It is thus possible for your lawyer to formulate a defense that you were unaware that the character represented a person under 18 years of age.

What about my first amendment rights?

In 1973, the Supreme Court ruled that the First Amendment right to free speech does not include “obscene” language and material (Miller v. California, 413 U.S. 15 (1973)). The PROTECT Act specifically and purposefully includes the word “obscene,” so that visual depictions of child pornography cannot be protected under the First Amendment.

Have you been charged with possession, creation, or marketing of child pornography? Call Seth Chazin immediately at 1-800-499-9902 or contact him online to protect your reputation and your freedom.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 30 years experience.

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