Simpsons’ child pornography

As has been widely reported, Justice Adams in the NSW Supreme Court has held that “an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.”

Actually, that is not quite true. Justice Adams has held that the internet cartoon was not not child pornography by reason of it not representing a “person.” That is because the case he heard was an appeal from a Magistrate Favretto in the Local Court, who held that the images were child pornography, and sentenced a Mr McEwen to fines of $2,000 and $1,000 for parallel state and commonwealth offences and ordered him to enter into good behaviour bonds for two years.

Basically, despite first saying that the difference between animated depictions and performances by actual people was not simply a matter of degree, his Honour then held that nevertheless, because pornography as defined in the statute includes depictions or descriptions of fictional persons, and the commonwealth statute actually makes express reference to cartoons, it really is a matter of degree, or at least a question of fact, whether the representation is a representation of a person, even a fictional person. Because it was a question of fact, the magistrate’s decision stood.

Now, before you go rushing off to search the internet for these cartoons so that you can judge for yourself, let me warn you that if you so much as look at them you will (subject to some possible statutory defences) be committing an offence of using a carriage service to access them. Mr McEwen was also convicted of these offences. If you then copy them to your computer, you will then face a charge of possession as he did.

This is a very depressing case. The case reported yesterday of the man charged with uploading child abuse material because he uploaded a widely-circulated baby-swinging video (which he didn’t make but just found on the internet) is another example of the same sort of thing.

In their determination to stamp out child pornography and child sexual and other abuse, parliaments have enacted extraordinarily wide “catch-all” provisions. Politicians may have thought that these provisions are necessary, a bit like anti-avoidance provisions in the Tax Act, to meet a wide range of possibilities, but these are then being interpreted and enforced literally, to the hilt and beyond, and with a prosecutorial zeal which seems, to me at least, totally out of proportion.

For this, I principally blame the police and prosecutors. But, quite frankly, that is the mindset of the prosecutor, and prosecutors were ever thus. This means that something really needs to be done about the laws. Given the current moral climate, however, change or even legislative second thoughts seem unlikely. That’s what’s depressing.

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One Response to “Simpsons’ child pornography”

  1. ken Says:

    Dangerous times.
    The policy justification for making child pornography illegal must be that children are harmed in producing it. So even someone on the other side of the world who has it in his possession is indirectly contributing to harming a child.
    Fair enough, most would say
    But no child is harmed when no human is used in the images. The objection, I suppose, is that it is disgusting stuff and no one in their right mind would be interested etc etc.
    Pretty much the same argument used all those years ago about Lady Chatterley and the books, films and magazines some of us fought to be allowed to adults.
    Very sad to fight the same battles about what should be allowed in a liberal society, all over again.

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