Animated Child Porn: Legal or Illegal to Possess?

Legal Status of Fictional Pornography Depicting Minors

According to Wikipedia, the legality of fictional pornography depicting minors varies by country and the nature of the material [1]. Child pornography laws typically categorize images into three types: real, pseudo, and virtual.

Pseudo-photographic child pornography involves digitally altering non-sexual images of real minors to create pornographic content, while virtual child pornography portrays entirely fictional characters, such as in lolicon manga.

Pseudo-photographic child pornography is produced by digitally manipulating non-sexual images of real minors to make pornographic material. Virtual child pornography depicts purely fictional characters (for example, lolicon manga)

Debates continue over whether cartoon pornography depicting minors is a victimless crime. Many jurisdictions have enacted laws criminalizing “obscene images of children, regardless of how they are made,” based on concerns that such material may encourage real-world child sexual abuse.

Countries that have criminalized the possession, creation, and distribution of sexual images involving fictional characters who appear or are described as minors include New Zealand, Australia, Canada, South Africa, South Korea, and the United Kingdom.

Overview of California’s Child Pornography Laws

According to SCLG, California’s child pornography laws are among the strictest in the United States, making it illegal to possess, distribute, produce, or share any material that depicts a minor engaged in or simulating sexual conduct [2].

Under California Penal Code Section 311, child pornography is defined as any material that visually depicts a person under the age of 18 engaging in or simulating sexual acts. This includes photographs, videos, computer-generated images, and other media.

Key Provisions:

• Possession: Simply possessing child pornography is a crime in California. Penalties for possession can include fines, probation, and imprisonment, with more severe penalties if the material involves particularly young children or large quantities of content.
• Distribution and Production: Distributing, producing, or duplicating child pornography is treated as a felony, with harsher penalties including longer prison sentences and higher fines. Repeat offenders or those involved in the commercial distribution of such material face even more severe consequences.
• Mandatory Registration: Individuals convicted of child pornography offenses are required to register as sex offenders under California’s Sex Offender Registration Act, which can lead to long-term consequences affecting employment, housing, and social standing.

California also criminalizes the possession of child pornography that involves digitally created or manipulated images, reflecting a broad approach to combating all forms of child sexual exploitation. Defendants facing child pornography charges may face significant legal challenges, and convictions can result in long-term penalties including mandatory sex offender registration

What Does Federal Law Say About Child Pornography?

In 2003, Congress enacted the PROTECT Act, short for the “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today” Act [3].

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)

Under federal law, even animations and drawings can be classified as child pornography, and individuals can be prosecuted for possessing or distributing such material.

What If I Didn’t Know the Characters Were Minors?

Federal law also prohibits the possession or distribution of depictions where an “identifiable minor is engaging in sexually explicit conduct” (18 U.S.C. Section 2256(8)(C)). The term “identifiable” implies that the individual must be aware that the character depicted is a minor.

Therefore, the prosecution must prove that you knew the character represented someone under 18, which can be a key point in formulating a legal defense.

What About My First Amendment Rights?

The Supreme Court ruled in 1973 that the First Amendment does not protect “obscene” language or material (Miller v. California, 413 U.S. 15). The PROTECT Act explicitly includes the term “obscene” to ensure that visual depictions of child pornography are not shielded by First Amendment protections. This means that such materials cannot be defended on the grounds of free speech.

Related Articles:

• What is the Solicitation of a Minor?
• Age of Consent Laws Across the US
• What if a Minor Lies About Their Age Online?

See all related sexual abuse lawsuits our lawyers covered so far.

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References:
1. https://en.wikipedia.org/wiki/Legal_status_of_fictional_pornography_depicting_minors
2. https://www.shouselaw.com/ca/blog/criminal-defense/is-it-legal-to-possess-child-porn-if-the-images-are-animated-rather-than-real/
3. https://www.bayarea-attorney.com/can-you-be-charged-with-child-pornography-for-looking-at-animation