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Child pornography

Not child pornography although it shows nude children because it is not "obscene": "Amor and Psyche, children", painting by William-Adolphe Bouguereau (1873).

The term child pornography (colloquially also called "kiddie porn") generally refers to pornography featuring a child. It is widely prohibited by law, and is disapproved of by most members of society.

However, the precise definition of "pornography" and "child" varies by region and country. Usually child pornography is thought of and legislated in terms of photographs and motion pictures. However in some jurisdictions, also other media such as literature, drawings, paintings, etc. can fall under the definition of child pornography.

Some people claim that pornography, by definition, is made by, for and with adults; therefore child pornography would be an oxymoron, in other words a contradiction in terms, and should better be called paedophile material.

Contents

Definitions (U.S.)Edit

In the United States, child pornography is defined under federal law as visual depiction of minors (i.e. humans under the age of 18) engaged in a sex act such as sexual intercourse, oral sex, or masturbation, as well as lascivious depictions of the genitals. Some state laws include more or less restrictive definitions compared with federal law.

U.S. law prohibits photographic depictions of real underage persons engaged in sexual activity or being abused - whether real or simulated.

Nudity is prohibited only in cases of "lascivious" exposure. A court case in 1999 determined that in photography and video, mere nudity involving minors does not come under the federal definition of child pornography, nor does it necessarily qualify as obscene. This ruling does not specifically address state laws, which may differ.

Written child pornography is legally protected by the U.S. Constitution as long as it is not judged obscene.

Fictitious charactersEdit

 
Stamp by Roguebfl.

"Virtual child pornography" are images drawn from the imagination, or from an adult model, or via a computer simulation, in the making of which no actual child was involved. Artistic creations such as drawings, cartoons and animations which depict not real persons but only fictitious characters are legal in the U.S. as long as such works are not "obscene" under the Miller test.

The US Supreme Court ruled on April 16, 2002 that such material is protected free speech. The case of Ashcroft v. Free Speech Coalition held that a ban on "virtual child pornography" is not permitted under the First Amendment to the US Constitution. This Supreme Court decision seems to settle the case on "virtual child porn" in the U.S., until and unless it is overruled or changed by legislation or a constuitional admendment. The full text of this ruling is available via Findlaw.com.

In other countries, "virtual child pornography" may be banned, though. See for example the British ban on images that fall under the definition of an "indecent pseudo-photograph of a child" from 1994.

Spanking art and child pornographyEdit

In the past decade or so a lot of child spanking artists, such as illustrators of spanking stories, have increasingly become concerned that their work might be considered "simulated" or "virtual" child pornography.

Two reasons can be found to explain this worry: First, spanking often involves nudity of the spankee's buttocks, which in modern society can be viewed as an erotic aspect. It should however be pointed out that in the past, nudity of children in art was never considered erotic, let alone 'obscene' or 'pornographic'. This is nowhere more obvious than in the many nude child putto and cherubim paintings and sculptures in churches, which often show full frontal nudity of children's genitals, whereas the genitals of adult characters are covered as a rule. In any case, spanking artists who want to be on the safest side possible should avoid all visual depictions that could be considered 'lascivious' nudity of children.

Second, the U.S. federal law definition of child pornography includes visual depictions of "sadistic or masochistic abuse". For that reason, creators of visual spanking art will want to make their works in such a way that it is clear the fictitional child character is not abused sadistically for the sexual pleasure of the spanker, but given a disciplinary corporal punishment without sexual motives.

Under Ashcroft v. Free Speech Coalition, child pornography does not include images which do not represent any real child, and in the making of which no real child was involved. Whether this will remain the rule in the U.S. is uncertain.

Today, some people have such a wide personal definition of child pornography that they'd like to see all child spanking art banned. However these people should be reminded that the corporal punishment of children was an everyday and legal parenting practice throughout history. From antiquity to the early 20th century, no one would have called an illustration that showed the birching or caning of a child 'pornography'. The fact that to some people (such as the well-known authors Jean-Jaques Rousseau, the Marquis de Sade or Leopold von Sacher-Masoch), corporal punishment was erotic, doesn't make the subject 'erotic' for the majority. To give a related example, foot fetishists might find a picture of a woman's foot erotic, but that doesn't make pictures of feet "pornographic" by any legal definition.

As far as is known there has never been a case where a work of spanking art was judged by a U.S. court to represent child pornography, although convictions have taken place outside of the United States (cf Mr. KD).

Another strong indicator that not only drawn, but also photographed and filmed visual reproductions of disciplinary child spanking scenes are generally not considered child pornography is the fact that many mainstream motion pictures (movies, TV films, etc.) contain scenes where child actors are spanked (see Spanking in mainstream films).

Nevertheless, it's a fact that few photographic works of child spanking art exist, although these could be produced the same way as spanking scenes in mainstream movies are: shooting the scene such that it looks real for the camera without actually hitting the actor who is posing for the picture.

On the other hand, the 2008 boy scout controversy demonstrates that - in some people's minds - an otherwise inoffensive image of fully-clothed children engaged in ordinary activities (such as attending a scout meeting) might qualify as pornographic material if posted to a site containing any degree of sexual content. Such views, it should be added, at are variance with the majority of legal definitions of child pornography and/or obscenity, and quite possibly represent an extremist view of the subject.

U.S. Child Protection and Obscenity Enforcement ActEdit

In the United States, the production and sale of adult-oriented erotic videos, magazines, and photos made after November 1, 1990 can not contain actors/models under the age of 18 (or adult actors portraying minors). These laws were put in place to protect minors from being sexually exploited in any form of photographic media. This includes everything from mild spanking erotica to hardcore pornography.

All such works are required to include a "Statement of Compliance" (to Title 18 U.S. Code, Section 2257 laws) that declares all participants were over 18 years old at the time of production. Proof of age documentation must be kept on file for inspection and contact information for a custodian of records must also be included somewhere in or on the work or its packaging.

See Age of majority for more details regarding this law.

See alsoEdit

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