It is well-established under both federal and state laws that the manufacture, possession, and/or distribution of child pornography – that is, photographs and/or videos of children engaged in sexual acts, simulated sexual acts, or abusive situations – can land a person in serious legal trouble. In many situations, a person convicted of such an offense will be looking at a significant prison sentence, at the very least. However, hentai – that is, cartoon depictions of children engaged in sexual or abusive acts – is gaining popularity amongst some in the U.S. as well as in Japan. Obviously, popularity does not equate to legality. So is the possession, creation, and/or distribution of virtual child pornography legal in the United States?
United States Supreme Court Holds Virtual Child Porn Protected by the First Amendment
In the case of Ashcroft v. The Free Speech Coalition, a constitutional challenge was raised to the Child Pornography Prevention Act of 1996 claiming that the Act violated the free speech protections of the First Amendment as applied to hentai. In that case, the federal government attempted to argue that virtual child pornography like hentai encourages pedophilia; therefore, the government argued, prohibiting virtual or cartoon child pornography was permissible to achieve the government’s purpose of reducing the victimization of children through child pornography.
The Supreme Court of the United States disagreed, however, and found that virtual child pornography such as hentai does not involve the abuse of an actual child and, therefore, is protected free speech so long as the work is not produced using children, and the images are fictitious (i.e., a real child’s face is not superimposed on an adult’s body or cartoon body).
Does This Mean Hentai is Legal?
In a general sense, the Supreme Court’s decision in Ashcroft technically means that the possession, manufacture, and/or distribution or sale of hentai is legal so long as the children depicted in the hentai are fictitious and not depictions of real children. In addition, the hentai must be drawn in such a way that it is clear the child depicted is a fictitious cartoon – the hentai may be considered illegal if a reasonable individual viewing the material could not determine whether it is a cartoonish work or a depiction of a real child. This being said, in the wake of Ashcroft there have been further legislative attempts to criminalize virtual child pornography, some of which have not yet been ruled unconstitutional.
What Should I Do if I Am Facing Child Pornography Charges in Texas?
If you find yourself charged with any child pornography-related charge in Harris County, take immediate action by speaking with a qualified criminal defense attorney right away. Refrain from making statements to the police until you have had an opportunity to speak with an attorney. Law enforcement officers and prosecutors alike are eager to secure convictions on individuals they deem to be child pornographers, so it is vital for you to refrain from speaking to law enforcement until you contact a criminal defense lawyer.
The Law Offices of Tad Nelson & Associates is a Harris County criminal defense law firm with offices in Houston, Galveston, and League City. We are prepared to help you throughout each step of your case. Call attorney Tad Nelson today at (281) 280-0100.