Helen Lovejoy would be proud of Justice Michael Adams. Well, she would be if she were more than just a cartoon character in The Simpsons.
In a decision that seems more akin to a storyline from the animated series than the reasoned judgment of a member of the Bench, Justice Adams in the NSW Supreme Court this week upheld the conviction of NSW man Alan McEwan for possession of child pornography, where the pornography in question were cartoon images featuring Bart and Lisa Simpson engaged in various sex acts. It should be noted that McEwan was only charged and convicted for the possession of the fake images of the Simpson "children", and at no time was there any question of there being other prohibited images of actual children in his possession.
The central issue in this case was whether the Simpson children were to be considered depictions or representations of "persons" for the purpose of prohibitions against child pornography under both federal and state criminal laws. If it weren’t so serious, it would be laughable.
This case highlights the problems with the way in which governments in Australia have approached the issue of child pornography. A product of a McCarthy-like reaction to the very real, and very serious, problem of the production and distribution of child pornography, the laws are both broad and ill-defined.
Over the past decade — in response to an unnecessary and often counter-productive hysteria whipped up by morals crusaders, opportunistic politicians and an obliging mainstream media — parliaments around the country have rushed through strict prohibitions on the production, distribution and possession of material that "depicts, describes or represents" children in a sexual way or as a victim of torture, cruelty or physical abuse.
Now, there is no doubt that there are no reasonable justifications for permitting the production or dissemination of images of real children being abused. The harm being prevented by prohibiting this material is patently obvious, and criminal penalties are justifiable.
The issue is not quite so clear where the material prohibited involves entirely virtual images and where no real people are involved. Does virtual child pornography cause a demand for or otherwise encourage or contribute to the abuse of children? The evidence here is far from conclusive, with neither side of the issue being able to prove their claims decisively.
But even if we are to accept that depictions or representations of children are capable of stimulating a market for the real product, there must be limits on what the law includes within the definition of prohibited material. As a result of the Court’s decision in the McEwan case, the scope of these laws are both wide and unreasonable.
Advances in digital graphics technologies have made it difficult, although not entirely impossible, to distinguish between computer generated images and the real thing. Although I am not entirely convinced that virtual child pornography does stimulate demand for the real product, or that prohibiting it has any impact on the problem of child abuse, I am prepared to accept that it is not entirely unreasonable for legislators to include virtual images within the scope of the laws where the images have some visual connection to reality.
But to include cartoon characters within the scope of child pornography laws is a move into dangerous territory. Cartoons are the mere products of an imagination. In the best tradition of sexual parodies such as The Flintbones, Edward Penishands and Snow White and the Seven Perverts, the series of images featuring members of the Simpson family are nothing more than drawings of cartoon characters.
Counsel for McEwan argued that, like the Simpsons cartoons themselves, these images were drawn quite deliberately to demonstrate that they were not human beings. That is, they’re more of a misrepresentation, than a representation, of people.
Discussing the implications of the case in the New York Times blog The Lede, Jack Healy writes: "… one of the key questions was whether Bart Simpson and his younger sisters could legally be considered ‘persons’ under Australia’s prohibitions against child pornography. And if so, what about cartoon animals bestowed with human characteristics? … How about stick figures?"
The judge reasoned that, while the Simpsons family have four fingers and other characteristics that depart from the ordinary human form those distinctions were not legally significant: "…the mere fact that the figure depicted departed from a realistic representation in some respects of a human being did not mean that such a figure was not a ‘person’."
Although the decision may seem absurd to many, it is indicative of a broader problem: we have child pornography laws in this country that are both broad and undefined.
These images may be offensive. They may be within the legal definition of obscene and they may be pathetic attempts at humour. They may even be in serious breach of 20th Century Fox’s copyright on all things Simpson. But they are not child pornography.
So if they are offensive or even obscene anyway, does it then matter that they are included within the scope of child pornography laws as well? Yes.
Censorship laws in Australia are premised on the belief that adults should be able to read, see or hear whatever they choose to, within reasonable limits. Materials — whether it be films, magazines or books — that fall outside these limits are subject to prohibitions on their sale, distribution or public display. But personal possession is not an offence, except where child pornography is involved.
The consequences of this decision, particularly the expanded range of the types of materials that will fall within the scope of child pornography laws, are numerous.
The most obvious is the effect that this decision will have on the life of Alan McEwan. Aside from the restrictions placed on the types of employment and voluntary activities that he can participate in and even on his contact with children, he is now a convicted child sex offender, and will carry that label for the rest of his life.
While the Helen Lovejoys out there will argue that McEwan got what he deserved for looking at any images where "children" are sexualised — whether they be cartoons or not — there are potentially wider repercussions from this case for the battle against child pornography as a whole.
Research in criminology suggests that the criminal law is effective only as a device to reinforce existing community values, and that the legitimacy of a law is threatened when criminal prohibitions and sanctions on specific forms of conduct are not aligned with community norms, or lack common support. This is particularly so where the community views either the prohibition unreasonable or the penalties as disproportionate to the offence, or otherwise unreasonable.
If respect for child pornography laws is lost, their legitimacy is diminished and the fight against child abuse becomes that much more difficult. The absurdity of this decision risks trivialising the very real problem of child abuse.
The images at the centre of this case, and others like them, are freely available and widely distributed over the internet. The scope of the law needs clarifying, whether by the parliament or by the courts, before more are caught in its trap.