The NJ legislature – and most governments – criminalizes viewing or sharing pornography depicting children in sexual situations because of the harm it can do to the children in those pictures or videos.  But what about images involving children that are obviously not real?  Drawings and cartoons depicting characters in adult situations or performing sexual acts exist – especially online – but what happens if this material depicts underaged fictional characters?  The Atlantic City child pornography defense lawyers at the Law Offices of John J Zarych discuss the legality of “child pornography” involving cartoons or animated characters.

Is it Illegal to Possess Animated/Cartoon Child Pornography in NJ?

Under NJ law and federal law, it is illegal to possess, produce, or distribute child pornography.  N.J.S.A. § 2C:24-4 is the primary child pornography statute.  Titled “endangering welfare of children,” this crime is clearly aimed at protecting real children and makes it illegal to create, distribute, or possess child pornography, or to allow a child you are responsible for to participate in the production of child pornography.

In this statute, the format of “child pornography” is broad, including photos, videos, and simply “images.”  However, the statute does specifically define a “child” for the purpose of this statute in a limited way: “any person under 18 years of age.”

The problem with animated or cartoon child pornography is that it does not explicitly fit into this definition.  The statute’s application to animated or cartoon pornography is questionable if, for the material to be illegal, it must depict a “child.”  If a child is “any person under 18,” then it could be argued that a fake person – such as a cartoon or anime character – would not qualify.  This question has not been settled by court cases as far as our research can uncover.

The strongest argument that animated and cartoon images are included under this statute is the inclusion of language criminalizing the possession of “any other reproduction or reconstruction” of a child engaged in sexual activity.  Moreover, the statute says that images, etc., of “the simulation” of sex acts are also illegal.  Depending on how the animation is produced, there may be no photographs taken of drawings, and the animation may be produced entirely digitally.  However, the definition of child pornography is broad enough to include any types of images, videos, or reproductions, so there is no way around the statute by arguing whether the material was in an illegal format or not.

However, other laws and court rulings might prevent this law from being used to punish animated child pornography.

Animated Child Pornography Laws and Court Cases

Images depicting non-real children are sometimes called “virtual child pornography.”  This is a broad term used to encompass drawings, sketches, cartoons, animation, and realistic computer animation.  It may also broadly encompass “simulated child pornography,” such as images or videos of adult models that look and act underage, images or videos of body doubles of children, or doctored images or videos that make it look like someone under 18 is engaged in sex acts.  The U.S. Supreme Court has actually handled cases dealing with this sort of material, but it isn’t clear how these cases would cover animated or cartoon child pornography in some situations.

In 1996, the U.S. passed a law titled the Child Pornography Prevention Act, which, in part, made it illegal to produce, distribute, or possess “simulated child pornography.”  The Supreme Court struck down this law in Ashcroft v. Free Speech Coalition in 2002 under the argument that simulated child pornography did not depict actual children and thus had no victims and caused no harm to actual minor children, so it couldn’t be illegal on that basis.  This case also dealt with the artistic value of depictions of minors played by adult actors and found that the law was too broad if it interfered with free speech rights by banning legitimate artistic expression.

Another federal law was passed in 2003 called the PROTECT Act.  This made it illegal to produce, distribute, or possess drawings, cartoons, and other “visual depictions” of minors in sexual situations.  Some of this law might interfere with the ruling in Ashcroft v. Free Speech Coalition, but it is unclear how the court would handle this.  So far, the U.S. Supreme Court has refused to hear any cases dealing with convictions under this statute, allowing the conviction to stand in a 2005 case where a Virginia man was arrested for “obscene” images depicting animated characters.

These laws have one additional caveat that makes them odd cases to handle: these federal laws only criminalize these animated or cartoon depictions if they are indeed “obscene.”  Free speech cases have a strong history of protecting free speech when something is not considered obscene and restricting free speech when something is considered obscene.  Since the only cases to reach the Supreme Court under the PROTECT Act have dealt with content that was clearly obscene, the Court has not addressed this question.  This means that many questions about animated child pornography or underage cartoon nudity might hinge on whether or not these depictions are “obscene” or whether they have artistic value, but cases dealing with these questions have not come through the courts.

The words “obscene” or “obscenity” do not appear in the New Jersey statute at all, which means that this law sweepingly covers all sexual depictions of minors, whether or not there is arguable “artistic value.”  This means that if the law does apply to animated or cartoon images, it could violate the ruling in Ashcroft, and a conviction might be unconstitutional.  However, these legal arguments have not been tested in court, and even if the law is unconstitutional, it would not prevent the government from arresting you, sending you to jail, trying you, convicting you, and forcing you to appeal the case to the Supreme Court.

Call Our NJ Child Pornography Defense Attorneys

If you think that you might be in possession of illegal child pornography involving animated or simulated minors, such as depictions in hentai, anime, manga, “Rule 34” content, or “lolicon” content, call The Law Offices of John J. Zarych’s Atlantic City criminal defense lawyers today.  Our attorneys offer free legal consultations and fight to help our clients get charges dropped or reduced.  For a free legal consultation, call us today at (609) 616-4956.