To the Virginia prosecutor, the images looked like real children.
Everything seemed natural - the arms, the legs, the face. But the defendant claimed the images of children engaged in sexual acts were something put together by a computer.
Unable to identify any of the children, the prosecutor finally settled on a plea bargain. "We were really hamstrung," says Gary Close, the Commonwealth's attorney for Culpeper County, Virginia. "We couldn't say that they weren't morphed."
Now the question has come before the US Supreme Court: Should such alleged works of fiction be legal?
Next month, the US Supreme Court will begin weighing whether the 1996 Child Pornography Prevention Act can constitutionally bar such images. But until the court rules, which is likely this fall, it's complicating prosecutions of child pornographers.
When the Department of Justice tries cases today in the Western part of the US - where the Ninth Circuit Court of Appeals has ruled part of the Child Pornography Prevention Act unconstitutional - it must prove the pornographic images are of real victims. That adds what prosecutors say is a monumentally difficult task to an already heart-breaking job.
Adding to the burden of proof
To find proof, prosecutors rifle through old magazines that were produced before today's computer technology. And the Justice Department has brought over foreign law-enforcement officials who can testify that a child in an image is real.
"A greater burden shifts to law enforcement to prove these are actual victims," says a US Customs spokesman. "It may force us to change the way we investigate our cases," adds Angela Bell, a spokeswoman for the FBI.
Even before the court has ruled, state legislatures are moving forward to ban the images. Vermont and Missouri have already passed such bans, and last week, both Arizona and New Mexico took up similar legislation. But most of these laws will be contingent on the high court's ruling.
The computer-generated defense is cropping up in more pornography cases around the country, because it puts an added burden on prosecutors. In the Virginia case, the prosecutor did not have the time or resources to identify any of the victims. As a result, the defendant pled guilty to five counts instead of the full 91-count indictment. Now, the state is considering legislation making it illegal to have computer-generated images as well.
So far, federal officials say they have not had any trouble winning convictions. Pedophiles often have such large collections, it's not hard to find examples of known victims. But according to one official involved in tracking down the materials, it's virtually impossible to discern any difference between virtual child porn and the real material.
Child-protection advocates fear that if the Supreme Court overturns the law, it will open the door for all kinds of computer-generated child porn. "You can take older photos ... and then morph them to bodies or faces of more recent children, who would be impossible to identify," says Dan Armagh, a former state prosecutor who is now at the National Center for Missing and Exploited Children in Alexandria, Va. "This could cause an incredible burden on the prosecutors who investigate crimes against children."
Too vague a definition?
The Free Speech Coalition, a trade association of adult businesses, says it, too, opposes child pornography. But the group, which brought the suit, says the vagueness of the law violates First Amendment rights. The Ninth Circuit Court agreed. "There is an enormous range of mainstream material that fits in the definition of child pornography," says Jeffrey Douglas, Santa Monica-based legal counsel for the group. If the law is upheld, he maintains that movies such as "Crouching Tiger, Hidden Dragon" or "The Tin Drum," both nominated for awards, could be considered child pornography.
Federal investigators say they are not targeting legitimate films and artwork. However, state and local prosecutors have sometimes been more zealous.
"There will always be overzealous prosecutors, but the way to get around that is to dismiss those claims in court," says Mr. Armagh. "The question is: Are children being posed in a lascivious [manner]?"
(c) Copyright 2001. The Christian Science Publishing Society