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Can an Animated Video or Drawing Lead to a Henderson Child Pornography Charge?

Posted by Neil Shouse | Feb 29, 2016 | 0 Comments

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Possession or production of child pornography in Henderson and throughout Nevada is prosecuted aggressively and a conviction comes with lengthy and severe penalties.

Nevada's child pornography laws are designed to prevent the sexual abuse and exploitation of children. But what about videos and materials such as drawings, cartoons, or animation (such as manga or anime) which depict child sexual acts but do not involve any actual children? If no minors were actually used or shown, can you get convicted for a child pornography offense in Henderson because of such material?

Under federal law you can be. Under Nevada law, probably not.

Nevada Law

NRS 200.710 makes it a Nevada category A felony to:

  • knowingly use, encourage, entice or permit a minor to simulate or engage in or assist others to simulate or engage in sexual conduct to produce a performance; or
  • knowingly use, encourage, entice, coerce or permit a minor to be the subject of a sexual portrayal in a performance

Similarly, NRS 200.730 makes it a crime (category B felony on first offense; category A for second and subsequent offenses) to knowingly possess:

  • any film, photograph or other visual presentation depicting a person under the age of 16 years as the subject of a sexual portrayal or engaging in or simulating, or assisting others to engage in or simulate, sexual conduct

While NRS 200.710 clearly requires the involvement of an actual minor in the production of the material, NRS 200.730 only discusses material “depicting a person under the age of 16” engaged in sexual conduct.

While no Nevada court decision directly addresses the question of whether an animated video “depicting” child sexual acts constitutes prohibited child pornography, other court decisions discussing the purpose of Nevada's child porn statutes emphasize the protection of children, which is not at issue in a cartoon or animated video. As Nevada's Supreme Court said:

“The purpose of Nevada's child pornography statutes is to protect children from the harms of sexual exploitation and prevent the distribution of child pornography. As such, the intent of the Legislature in passing [Nevada's child porn laws], was to criminalize the use of children in the production of child pornography.”

Wilson v. State, 121 Nev. 345 (Nev. 2005)(emphasis added)

Under this analysis, a depiction that did not involve the use of any actual children would likely not run afoul of Nevada's child pornography laws.

Federal Law

Under federal law, however, animated child pornography may be a crime. In 2003, Congress passed the “PROTECT Act.” That law criminalizes material that contains "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.”

The PROTECT Act was passed after a previous federal law that made simulated child pornography illegal was struck down by the U.S. Supreme Court as overly broad and a violation of the First Amendment because it “prohibits speech that records no crime and creates no victims by its production.” Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

However, the First Amendment does not protect “obscene” speech. Miller v. California, 413 U.S. 15 (1973).

As such, even if the images depicting child sex acts did not involve any actual children, it can be a violation of the PROTECT Act if the material is deemed “obscene.” In upholding the constitutionality of the Act's prohibition of obscene virtual child pornography, one federal court stated that “the fact that this statute does not require that an actual minor exist… is immaterial because… it is an obscenity statute and not a child pornography statute.” U.S. v. Schales, 546 F.3d 965 (9th Cir. 2008).

So while you would not technically be charged with “child pornography” under federal law for the animated or virtual depictions of child sex acts, you could still be charged and convicted for a violation of federal law if the material is found to be “obscene”

If you are facing a Henderson child pornography charge, please call one of our experienced Henderson criminal defense attorneys a call today. For California law, see our article, Can I get charged in California for child porn for animated videos?

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About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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