Lolicon might just have got dangerous

DarkFusion · December 28, 2009, 1:00pm

Not sure if this counts subjectwise, but check out this video:

http://thatguywiththeglasses.com/videol … 5228-ep010

Lancer-X · December 28, 2009, 6:41pm

I admit this pretty much gave me a window into a community - of people that watch animation and for whatever reason consider this an important aspect of their selves - that I don’t particularly understand, but the basic message I got from the video + comments was that:

‘fans of anime’ fear this case being used to generalise against them and are stressing that, no, it’s not anime’s fault! (i’m pretty sure anime isn’t responsible for the US subculture it spawned even if you guys are all kidnappers and child molesters)
the same ‘fans of anime’ are using it to generalise against another subculture, namely, fans of ‘twilight’

now, I know not a thing about either fandom, really, despite knowing what both anime and twilight are, but this seems more than a little contradictory and/or spiteful

sanahtlig · January 2, 2010, 3:20pm

I’m still confused as to why a single criminal case would suggest any connection between crimes against children and either anime OR Twilight. The media cherry picks what they choose to show us–you can’t really trust individual cases they cover to be at all representative of the crime situation as a whole (which would depend on an unbiased case selection).

Jinnai · January 4, 2010, 12:34am

Schadenfreude and simple answers are want.

They don’t care ultimately if the person wasn’t the perpetrator, so long as they aren’t involved, as long as it gets solved quickly and neatly and it isn’t completely obvious that the person is innocent (ie he was in Canada when the incident happened in Texas). They also feel good when the “villian” gets what is coming to him whether he really was or not because it helps them feel more self-rightous in that they can say “well at least I’m not that bad”. Only when there is a blatant injustice or they themselves are affected do they care; people would rather live, on the whole, stable & peaceful lives.

That is where the media come in; they simply things by finding a scapegoat that at least has some basis, such as blaming video games for school shootings because the kids play violent video games that involve shooting even though the vast majority of people who play such game don’t go around shooting people. It’s a easy target because parents grew up largely without them; they don’t have many defenders in the old-guard, media likes to take a story and regurgitate it over and over until it becomes a mantra (See the Swift Boat ad replays and commentary).

Anime is a similarly soft target and therefore its easy to blame societies woes on and get stuff relating to it banned and biased against. It’s a simple answer that gives everyone else a sense of schadenfreude.

DarkFusion · January 26, 2010, 1:31am

Bit of an update to the Handley case:

http://www.animenewsnetwork.com/news/20 … ga-delayed

Nargrakhan · January 26, 2010, 4:15pm

I suppose that’s a good thing for him. Far as I can tell, the Feds are simply happy they won this case, so they can use it as precedence for future battles (i.e. bigger fish to fry). I suppose at most he’d get Community Service, or in an extreme worst case scenario, less than a year in a minimum security prison… the kind of place they send extremely rich people and powerful politicians to.

Even after they’ve won, they’re willing to negotiate the terms of his punishment? That’s very nice of the Feds.

EDIT

On a similar note, I looked up the status of the Dwight Edwin Whorley v. United States case… you know the one from Virginia that links real pedo with lolicon, and should be treated the same? Here’s the Supreme Court status page:

http://www.supremecourtus.gov/docket/09-6521.htm

Says Petition DENIED on Jan 11 of this year. Does that mean the Supreme Court has refused to hear the case?

EDIT 2

Talked to my legalese friend. He tells me that the case is officially dead. Last ruling stands.

So… How about those Colts and Saints, eh?

Nandemonai · January 26, 2010, 9:20pm

The Supreme Court likes to take clear-cut cases that squarely address the precise issues involved. In the Whorley case, he was violating probation, and downloaded real CP and lolicon h material on a shared machine, in public, where other people saw what he was up to - that’s how he got busted.

What we care about is that harmless people who never would do anything at all inappropriate towards any real life person (child or otherwise) are being persecuted by obscenity law. This is not the kind of test case that presents a clear view of that particular issue. It’s complicated by the fact the man in question fairly obviously does have extreme difficulty controlling himself and clearly DOES pose a significant danger to those around him, if his impulse control is THAT poor. The presence of the “bona fide” live action material also makes the case further removed; SCOTUS has said that this can be made illegal because it hurts people in real ways.

So it’s not exactly all that likely that SCOTUS was going to take this case. And they didn’t. (I’m not sure if this is the one that had the Virginia Supreme Court ruling or not. EDIT: It isn’t, it’s an appelate court only).

EDIT: After reading the opinon, if the Supreme Court were going to overturn this, it would have to overturn obscenity in general; or it would have to go beyond it’s prior ruling that having obscene material in the home is unchallengeable - and rule that you also have a right to acquire obscene material (which it has not done). When it overturned laws against sodomy, it only did so when it was abundantly clear that it was a monstrous and oppressive move (the two men were arrested after a neighbor filed a false police report alleging shots fired, and a cop busted down their door; rather than arresting the neighbor for filing a false report, the cop arrested the men). And even then it was 5-4.

I’ve said before that overturning obscenity itself seems to be implied by the ruling, but I just don’t see it actually happening under the circumstances in the Whorley case. He represents the bogeyman that obscenity law was (I believe unconstitutionally) created to protect society from, and not a victim of an overreach. Handley was a victim of an overreach, but he cut a deal and pled guilty, which means he won’t get past square one. Trying to overturn a guilty plea is almost impossible.

B173_M3 · January 26, 2010, 11:44pm

I gotta be honest here, even if these cases fall out of favor for the guys possessing the loli content, I still have a difficult time seeing how either of these cases constitutes a “blanket ban” or the treating of loli on par with “real” child pornography. As far as the regards to the legality of loli material is concerned, the reactions to these cases seems like a load of hot air that’s fueled by panic, media sensationalism, and our own misunderstanding of the laws in question. I’m not exactly fond of the concept of people being convicted on the grounds of “obscenity” myself, but I highly doubt that these cases have made an absolute prohibition on such material like some people like to believe–The claims about these laws creating a blanket-ban on loli seem like nothing but paranoid straw-man arguments made by people with a tendency to exercise selective vision on just the “loli” or “virtual” parts without actually taking a real look at these laws.

I mean, seriously? Doesn’t the so-called PROTECT Act merely specify the application of obscenity laws on loli materical, rather than putting them the same with child pornography? That law requires that such materials be legally “obscene” in order to be enforced. As far as the Whorely case is concerned, let’s for a moment forget about the fact that he was a convicted sex offender and the fact that he was caught with porn in a public setting–Let’s just compare how the courts would’ve likely treated the “loli”, and how they would’ve treated the “CP”. When he was convicted, the loli images most likely had to pass the Miller Test before they could convict him on such material under that law, whereas whatever real child pornography he had on him was instantly grounds for a conviction by virtue of having live children having sex. See the difference? The loli had to be considered “obscene” to be convicted, whereas the “CP” just had to have kids having sex. But isn’t any type of “obscene” materials already illegal to begin with, regardless of the existence of this law? Even if Whorely was caught when this law didn’t exist, he would’ve most likely have been tried under existing obscenity laws and still gotten himself jail anyways–That law isn’t like the (overturned) COPA, which didn’t specify any obscenity requirement to prosecute “virtual” child porn and did classify as a blanket ban of sorts. If loli was considered nowadays to be under a blanket ban or the same as real child porn, why would the PROTECT Act require the materials in question to be legally “obscene”?

If they make loli on the same level as child porn, why would the concept of “obscenity” even be taken consideration if real child porn doesn’t need to be declared obscene to be worthy of a conviction? The courts only have so much time/money hearing these cases. If it was a blanket ban and such content was on the same level as child porn, why does the prosecution have to have the images go through the Miller Test and waste the courts’ time even further? In both Whorely and Handley’s cases, I keep hearing the “obscenity” requirement being thrown around–If “obscene” materials have always been illegal to begin with, how exactly do these cases make loli more illegal than it has ever been before?

Honestly, these “legality” discussions need to die for once–This obsessive preoccupation with “virtual child porn”, “lolicon”, or whatever the hell you call it has been going on for 6~8 years and it’s only made things worse. It’s made the fans waaaaaaaaaaaaaay too prone to emotional panic/sensationalism, it’s made the companies waaaaaaaaaaaaaay too prone to censoring crap that would most likely never even be considered “obsene” to begin with, and it’s only made me waaaaaaaaaaaaaay too prone to pulling my hair out whenever I hear about these sorts of things–I don’t think that does anyone in the R1 anime/manga/visual novel industry any good. :roll:

Nargrakhan · January 27, 2010, 12:27am

To answer your question, it comes down to something called Precedent. [url=http://en.wikipedia.org/wiki/Precedent]Here’s the Wikipedia article[/url]. Basically when a higher court makes a ruling about something, all the lower courts under it use the higher court’s ruling as an example to follow. Sometimes they have to do it and sometimes they have a choice. Really depends on the situation.

As it currently stands, the Fourth Circuit has deemed that fictional child porn can be punished the same as real child porn. Because of all the “baggage” attached to the Whorley case, the Supreme Court rejected it, thus indirectly supporting that ruling (though not necessarily intentionally). So let’s say someone in Virginia got caught with some lolicon rape hentai comic that he made on his own and hid in his basement. According to the Fourth Circuit, he has committed a crime: production of child porn. So all the lower courts can rule it as such and not be wrong according to the Fourth Circuit. Of course said person could petition to the Supreme Court (or Full Appeals), but he’d still be sent to prison to serve time until the Supreme Court (or Full Appeals) overturns it… and of course the Supreme Court (or Full Appeals) could always decide NOT to hear it.

Is it unconstitutional for lolicon to be considered real porn? So long as it’s not obscene. Then it’s considered real obscene, which carries a criminal sentence that’s actually worst than being pedo in some situations. In any case, that’s another can of worms… However the Supreme Court has not overturned anything ruled by the Fourth Circuit decision: so that decision is current law in all it’s areas of jurisdiction. Both in spirit and letter. Fictional child porn is real child porn in Virginia, because child porn is obscene regardless if it’s real or not. That’s the Law until it’s overturned. The Precedent is set.

tl;dr - the FBI’s job has gotten easier to go after lolicon when they want to go after it. Charge lolicon people with pedophilia AND obscenity at the same time. If the pedo charges don’t stick, the obscenity charge will. If the pedo charge does stick, double whammy, sweeter victory. Automatically works in Virginia.

EDIT
Taken off a crime blog:

As I noted in an earlier post, in 2003 Congress created a new child pornography crime: producing, receiving, possessing or manufacturing obscene child pornography. PROTECT Act of 2003, Pub. L. No. 108-21 (2003). The new crime is codified as 18 U.S. Code ¬ß 1466A.

It defines obscene child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that depicts (i) a minor engaging in sexually explicit conduct and is obscene (¬ß 1466A(a)(1) and ¬ß 1466A(b)(1)); or (ii) "an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value (¬ß 1466A(a)(2) and ¬ß 1466A(b)(2)).

The latter part of the statute is intended to implement the U.S. Supreme Court’s standard for determining what is obscene: In Miller v. California, 413 U.S. 15 (1973), the Court held that to be constitutional under the First Amendment, obscenity statutes must “be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller v. California, supra.

In this post, I’m going to review two federal court decisions, one of which held that ¬ß 1466A is constitutional and the other of which held that it is not. We’ll start with the case that upheld its constitutionality.

In 2004, Dwight Whorley was charged with 19 counts of violating ¬ß 1466A(a)(1) after employees of the Virginia Employment Commission discovered he’d been using a computer in their public resource room to download “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.” U.S. v. Whorley, 550 F.3d 326 (U.S. Court of Appeals for the Fourth Circuit 2008). The indictment charged Whorley with “knowingly receiving” the child pornography.

Whorley went to trial and was convicted on all the ¬ß 1466A counts. He appealed, arguing, in part, that ¬ß 1466A(a)(1) was unconstitutional as applied to the
cartoon drawings that formed the basis for the charges . . . because cartoon figures are not depictions of actual people. He argues that ¬ß 1466A(a)(1) necessarily requires that the visual depictions be of actual minors and that if the depiction of an actual minor is not required, then [it] would be unconstitutional on its face under . . . Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
U.S. v. Whorley, supra. As I’ve noted before, in the Ashcroft case the U.S. Supreme Court held that a statute that criminalized the possession of virtual child pornography violated the First Amendment. The Ashcroft Court applied an earlier Supreme Court decision ¬ñ New York v. Ferber, 458 U.S. 747 (1982) ¬ñ which had held that real child pornography can be criminalized without violating the First Amendment because while it’s speech, it is speech the creation of which involves the victimization of real children. The Ashcroft Court held that since virtual child pornography does not involve the use of real children and therefore does not “harm” real children, it cannot be criminalized without violating the First Amendment.

Whorley’s first argument was based on the structure of the provisions of ¬ß 1466A(a):
Whorley points out that subsection (a)(1) (prohibiting depictions of `a minor engaging in sexually explicit conduct') is mirrored in subsection (a)(2) (prohibiting `an image that is, or appears to be, of a minor'). . . . He argues that the `appears to be' language in subsection (a)(2) indicates reference to a real minor in subsection (a)(1). In addition, he contends that subsection (a)(1) prohibits material depicting `sexually explicit conduct,' which is defined in 18 U.S. Code ¬ß 2256 as referring to real people. Section 2256 defines `sexually explicit conduct' . . . as actual or simulated sexual intercourse, "whether between persons of the same or opposite sex." 18 U.S. Code ¬ß 2256(2)(A).
U.S. v. Whorley, supra. The Court of Appeals didn’t buy his argument:
While ¬ß 1466(a)(1) would clearly prohibit an obscene photographic depiction of an actual minor engaging in sexually explicit conduct, it also criminalizes receipt of `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. . . . In addition, Whorley overlooks ¬ß 1466A(c), which unambiguously states that `[i]t is not a required element of any offense under this section that the minor depicted actually exist.' . . . The . . . language is sufficiently broad to prohibit receipt of obscene cartoons. . . .
U.S. v. Whorley, supra. Whorley then tried his First Amendment argument, claiming that if ¬ß 1466A(a)(1) did not require that “an actual minor . . . be depicted”, it violated the Supreme Court’s ruling in Ashcroft. As the Court of Appeals noted, there was “no suggestion that the cartoons in this case depict actual children; they were cartoons.” U.S. v. Whorley, supra.

Whorley’s problem was that the Ashcroft Court noted that the First Amendment “does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft v. Free Speech Coalition, supra. The Court of Appeals held that ¬ß 1466A can be applied to cartoons and other material that does not depict a real child because it is an obscenity statute, not a child pornography statute; to violate ¬ß 1466A, the material must be obscene, which means the statute is “a valid restriction on obscene speech” under the Supreme Court’s ruling in Miller v. California.

A few months earlier, a federal district court (a federal trial court, rather than a federal appellate court) reached a different conclusion with regard to one provision of ¬ß 1466A. Like Whorley, Christopher Handley was indicted for receiving (¬ß 1466A(a)) and for possessing (¬ß 1466A(b)) obscene child pornography in based on his having acquired Japanese anime cartoons that depicted minors engaging in sexually explicit conduct. U.S. v. Handley, 565 F.Supp.2d 996 (U.S. District Court for the Southern District of Iowa 2008). Handley moved to dismiss the charges, arguing that they violated the First Amendment.

One of Handley’s arguments was an Ashcroft argument that was essentially identical to the argument Whorley made. Like Whorley, Handley lost on the argument because the federal district court judge, like the Court of Appeals, held that the statute punishes the receipt and possession of obscene child pornography, not simply child pornography. Since the statute targets obscene material, the court held, it does not violate the First Amendment. U.S. v. Handley, supra.

The Iowa federal judge reached a different conclusion on Handley’s other argument, which was that the subsections of ¬ß 1466A differed in terms of the extent to which they required that the material be obscene. Handley had argued that
subsections 1466A(a)(2) and (b)(2) ban virtual child pornography that is not obscene, prohibiting sexually-oriented speech without considering whether it appeals to the prurient interest or is patently offensive. . . . [T]he only element from the three-prong Miller test incorporated into these subsections of ¬ß 1466A is that the depiction must lack serious literary, artistic, political, or scientific value.
U.S. v. Handley, supra. The federal judge agreed. He found that ¬ß¬ß 1466A(a)(1) and 1466A(b)(1) “clearly require the material be obscene and the three-prong Miller test would necessarily be incorporated into the essential elements” of the offenses defined by both provisions. U.S. v. Handley, supra.

The language of subsections 1466A(a)(2) and (b)(2) does not require the material be deemed obscene. Instead, those sections merely require that the jury find the material depicts a minor, or what appears to be a minor, engaging in at least one of the acts enunciated in the list of various sexually-explicit conduct contained in subsections 1466A(a)(2)(A) or (b)(2)(A), and that the visual depiction lacks serious literary, artistic, political, or scientific value.

U.S. v. Handley, supra. As I noted earlier, the (a)(2) and (b)(2) subsections only require that the material depict “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value.” The judge in the Handley case held that this did not implement the Miller requirement that the determination of obscenity must focus on three issues:

(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . .

Miller v. California, supra. The judge therefore held that these subsections of ¬ß 1466A violate the First Amendment. U.S. v. Handley, supra.

As far as I can tell, the obscene child pornography offense was added to the federal criminal code to give prosecutors an additional option: If they can’t prove that images depict real children, they can still prosecute the person who received, possessed, produced or manufactured them if the images are obscene under Miller. I don’t know why Congress didn’t incorporate the three-pronged Miller test into the statute.

Since Whorley was only charged with receiving obscene child pornography in violation of ¬ß 1466A(a)(1), the Miller issue the Handley court addressed did not come up in his case.

EDIT 2
Went back and revised my example. Was right, because I was thinking of something else. Sorry.

B173_M3 · January 27, 2010, 1:19am

Oh, bullshit. If the “pedo” and “obscenity” issues are truely seperate from this case and can be implemented at the same time, then not only can you be convicted of the “obscenity” without the “pedo”, you should be able to be convicted of the “pedo” without the “obscenity”–I fail to see how this law does so.

Nargrakhan:

As it currently stands, the Fourth Circuit has deemed that fictional child porn can be punished as real child porn. Because of all the “baggage” attached to the Whorley case, the Supreme Court rejected it, thus indirectly supporting that ruling (though not necessarily intentionally). So let’s say someone in Virginia got caught with some lolicon rape hentai comic that he made on his own and hid in his basement. According to the Fourth Circuit, he has committed actual child rape. So all the lower courts could rule that he’s a child rapist, and not be wrong according to the Fourth Circuit. Of course said person could petition to the Supreme Court, but he’d still be sent to prison to serve time until the Supreme Court overturns it… and of course the Supreme Court could always decide NOT to hear it.

No, you guys took that out of context–I’m pretty sure probably referring to this particular phrase stated by the Forth Circuit when they convicted him under Section 1466A of the PROTECT Act:

Let me guess, you thought that this meant that this meant that they made no distinction between child porn and fictional child porn, did you? Whorely was convicted of Sec. 1466A of the PROTECT Act: That statement refers to the fact that the “fictional” element is not an argument around this law because the law specifically refers to “fictional” material. They did not make an explicit statement that the law itself puts fictional child porn with real child porn, otherwise they would’ve made a similar statement like the Canadian judges did when they convicted a person for possessing lolicon:

See how the Canadian judge specifically refers to the possession of visual works “of the imagination” being criminalized the same as “depictions of actual people”? Regardless of the differences in US and Canada’s legal system, the judicial system’s purpose is to hear cases and interpret the laws to see if a person committed a crime–They have to make their statements as clear-cut as possible to prevent misunderstandings/loopholes. If the Fourth Circuit intended this conviction as loli being in the same level as child porn, what’s preventing them from specifically saying that it is on the same level as real child porn in plain language?

Sec. 1466A. Obscene visual representations of the sexual abuse of children

`(a) IN GENERAL- Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that–

`(1)(A) depicts a minor engaging in sexually explicit conduct; and

`(B) is obscene; or

`(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and

`(B) lacks serious literary, artistic, political, or scientific value;

or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

This is the law he’s supposedly being convicted under: Section 1466A of the PROTECT Act.

Notice how section (1)(B) requires the material to be “obscene”? Notice how section (2)(B) requires the material to lack “serious literary artistic, political or scientific value”? If lolicon were on the same level as real child pornography, why on earth would they need such requirements? Regular child pornography requires no obscenity laws to be broken in order for the material to be illegal–All there is needed is some sort of image/video showing a minor in some sort of sexually explicit situation. But to be convicted under this law, it has to be able to meet either subsections (1)(B) or (2)(B).

Subsection (1)(B) explicitly states that the material has to be obscene and a conviction under (2)(B) wouldn’t work without the images being considered “obscene” because the “serious literary, artistic, political, or scientific value” is one of requirements of the Miller test. Let’s assume the worst-case scenario and assume that Whorley’s images are being tried under subsection (2)(B), where it doesn’t explictly say anything about being “obscene”. The Miller test requires the material to be depicting some sort of sexual conduct, lacks appeal to the pruident interest according to community standards, and lacks literary/artistic/scientific/political value. Now I gotta ask you this–If these images in question weren’t sexual or unappealing to the purident interest, why the hell would this law even exist to begin with?

Obviously, if it didn’t meet the requirement of being “obscene”, it fails to meet the requirements of the Miller test, and the image cannot be prosecuted by subsection (1)(B). Now take it to the flipside and look at (2)(B), where the only requirement is the lack of literary/artistic/scientific/political value, without sexual or pruident interest bit. Now ask yourself this: If it wasn’t sexual or lacking appeal to the pruident interest, how the hell would an image get to court to begin with? The entire intention of the law is to supposedly bring into attention fictional materials that are already sexual in nature and potentially offensive to the public (Hell, if it wasn’t sexual, it wouldn’t even meet either of the (1)(A) or (2)(A) requirements and the conviction would fail anyways). By virtue of the content that this law is designed to cover and has been enforced on, (2)(B) is an obscenity requirement by de facto. There’s no way an image can be covered by this law without being considered legally “obscene”, otherwise it wouldn’t have even been brought to court to begin with.

If loli was on the same level as child porn, they wouldn’t even need to consider the loli as obscene or bring into consideration any of the Miller Test requirements–That’s where the difference lies. If loli is the same as child porn, why am I even talking about a bunch of requirements that relate to obscenity laws if real child pornography can be convicted purely on the basis of depicting children having sex without regards to its status as “obscene” material?

And just in case you missed it:

Tell your blog friend to lay off the political activism for once. I’m sick and tired of this sort of paranoid crap.

Nandemonai · January 27, 2010, 11:25am

That’s not how I read the decision, and it would go against what I understand the precedential SCOTUS case to say.

When the prior attempts were struck down, SCOTUS said “you can’t ban fiction that is not obscene. Period. End of story.”

Under the current law, material which a) is obscene, and b) is fictional CP - is punished quite harshly. But this cannot automatically declare the material to be “obscene”, that is a term which is subject to definition by the Supreme Court in the MIller test. If, after applying the MIller test, the jury finds the material to be obscene, and also that it fits the definition of “CP” in the statute, then you get nailed. Like I thought was likely to happen waaay back a long time ago when I started this thread, this was basically upheld.

What makes this “dangerous” is that it will be very easy to convince a jury that almost any such material is obscene, given that huge swathes of America is freaked out by even the idea that teenagers should be told that birth control exists.

Nargrakhan · January 27, 2010, 11:43am

The both of you understand legalese much better than me, so I appreciate the input and will take it to heart then.

I’m still not moving to Virginia though.

Nargrakhan · February 1, 2010, 3:35pm

Interesting Time magazine article about homeless sex offenders. Figured sticking it in here, than making a new thread.

The Julia Tuttle Causeway is one of Miami’s most beautiful bridge spans, connecting the city to Miami Beach through palm-tree-filled islands fringed with red mangroves. But beneath the tranquil expanse sits one of South Florida’s most contentious social problems: a large colony of convicted sex offenders, thrown into homelessness in recent years by draconian residency restrictions that leave them scant available or affordable housing. They live in tents and shacks built from cast-off supplies, clinging to pylons and embankments, with no running water, electricity or bathrooms. Not even during a recent cold spell, when nighttime temperatures dropped into the 30s, could they move into temporary lodging.

Miami is hardly the only place in the U.S. where registered sex offenders can’t find shelter. In Georgia, a group living in tents in the woods near Atlanta was recently ordered out of even that refuge. But the Miami shantytown, with as many as 70 residents, is the largest of its kind, thanks to a frenzied wave of local laws passed in Florida after the grisly 2005 rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender. The state had already been the first to enact residency rules for convicted predators, barring them in 1995 from living within 1,000 feet of schools, playgrounds and other children’s sites. Municipalities, with questionable authority, then adopted even tougher ordinances - there are 156 of them so far. Miami Beach, for example, bars offenders from living within 2,500 feet of all school-bus stops, effectively precluding them from living anywhere in the city.

But with the disturbing bridge colony putting Miami under increased national scrutiny - it has managed the improbable feat of arousing sympathy for pedophiles - Miami-Dade County hopes to return some sanity to the issue. A new law takes effect on Monday that supersedes the county’s 24 municipal ordinances, many of which make it all but impossible for offenders to find housing. It keeps the 2,500-feet restriction, but applies it only to schools. It also sets a 300-foot restriction to keep offenders from loitering near anyplace where children gather, which many experts call a more practical solution than harsh residency restrictions.

County officials, as well as the American Civil Liberties Union, hope the law will prod states and perhaps even the U.S. Congress to craft more-uniform laws to prevent the kind of residency-restriction arms race that Florida let local governments wage. “The safety of Floridians has suffered as local politicians have tried to one-up each other with policies that have resulted in colonies of homeless sex offenders left to roam our streets,” says state senator Dave Aronberg, a Democrat running for state attorney general. The excessive rules, he adds, “have the effect of driving offenders underground and off law enforcement’s radar.” Aronberg is co-sponsoring a new bill that would establish uniform statewide residency rules fixed at 1,750 feet - studies show that in many cities, over 50% of available housing is within 2,500 feet of schools - and include the sweeping no-loitering zones.

Theoretically, Florida’s 1995 legislation should have pre-empted more-severe local ordinances. Yet most state politicians didn’t want to be seen as coming to the rescue of sex offenders. Governor Charlie Crist, now a Republican candidate for the U.S. Senate who is facing a more conservative opponent for the GOP nomination, has largely ignored the municipal laws as well as the Julia Tuttle eyesore, even as it has become a cautionary symbol of how restrictions can backfire.

Ironically, it was one of residency restrictions’ fiercest proponents who helped push the softer Miami-Dade law through the county commission. Ron Book, a powerful Florida lobbyist, began his crusade for tougher residency laws after discovering that his daughter was molested by a nanny for years. Now, realizing that homelessness makes offenders potentially more dangerous, Book has shifted his campaign to the kind of child-safety, no-loitering zones that are built into the Miami-Dade measure. “Child-safety zones [should] have been a critical component of what we did [before],” says Book. “We just didn’t think of them.” Book, who chairs Miami-Dade’s Homeless Trust, which works to combat homelessness in the county, helped write the new state bill. Even so, because he was so involved in promoting the original residency restrictions, the offenders under the bridge still call their colony Bookville.

Many of them, however, are skeptical about the new county ordinance. Kevin Morales, 42, has lived under the bridge since 2007, and he doubts that the colony’s population, which has numbered more than 70 since he arrived, will thin out anytime soon. “Honestly, I don’t think it is going to make any difference,” says Morales, who sleeps in a van and works at his family’s business by day. “And the loitering [rules] are just another way to punish us.” Morales was convicted of lewd and lascivious conduct with a child under 16 as well as false imprisonment. Although he has been released from probation and has even received court permission to have contact with his victim (who has O.K.'d it as well), he says that under the no-loitering guidelines, “I don’t know where I can go. Can I still take my grandchildren to the park?”

Research by agencies like the Minnesota Department of Corrections has found that a stable home is the strongest guarantor of sound post-incarceration behavior among sex offenders. What’s more, Jill Levenson, an expert on sex offenders, says the no-loitering zones are more effective than unreasonable residency restrictions aimed at keeping predators away from kids. “They provide an increased public-safety benefit,” says Levenson, a professor of human services at Lynn University in Boca Raton, Fla. “One of the biggest flaws in the residency restrictions is that the offenders couldn’t sleep near these places but could wander around them during the day. Loitering zones go a long way in managing risk and [preventing] predators from cultivating relationships with children.”

Florida Department of Corrections spokesperson Greti Plessinger agrees, saying, “We are glad that [Miami-Dade County] has taken the lead on this.” But Miami-Dade is just one of Florida’s 67 counties. Eventually the state, and maybe even Washington, will have to assume that lead. Keeping sex offenders under the bridge may be good short-term politics, but it may well threaten the long-term safety of kids.

sanahtlig · February 1, 2010, 10:13pm

I don’t recall possession of obscene depictions of children being criminalized by the Protect Act of 2003. The actual wording is “possesses with intent to distribute”. Big difference.

As I discussed in this post: http://mangagamer.site11.com/viewtopic. … 4636#p4634

The definitions and scope of 1 and 2 are slightly different, allowing for a broader range of material to be criminalized since the conditions of only one of them need to be met to criminalize the images.

Just because speech isn’t protected doesn’t mean it’s illegal.
Just because speech is illegal doesn’t mean it’s prosecuted.

The Protect Act of 2003 has implemented 1) on a federal scale, covering any “holes” that existed on the state or local level. And unlike other obscenity laws, it’s (2)) actually being used to some effect to prosecute this particular “niche” of obscenity–and the penalties are harsh indeed.

B173_M3 · February 5, 2010, 4:37pm

Even if they wanted to ban all “virtual” child pornography by virtue of having it containing “children”, they couldn’t because they’ve tried before with the COPA. The fact that they even have to include obscenity requirements to convict anyone means that they can’t simply ban anything just because it has “children”. What part of this don’t you get? The law was enacted at the height of the peophilia scare when the murder/rape incident of that girl from Florida (I forgot her name) was highly publicized, where every lawmaker in the country wanted to make themselves look better by finding every opportunity to pass laws that seemed “anti pedophile”. Anyone with half a brain can see that it’s was merely a result of political posturing rather than a real intent to form a crackdown.

Even if it does target a “niche”, the law has no real substance and you know it. It’s merely an obscenity law with different wording. Even if Whorely was caught without this law in place, he would’ve been convicted of possessing obscene materials regardless.

Now put the scaremongering to rest already.

Nandemonai · February 5, 2010, 8:44pm

Tsk, tsk, tsk. Such strong words, and yet, in this case, unwarranted. There were several different laws passed to attempt to outlaw the fake CP stuff, no matter the circumstances. The Supreme Court multiple times struck down such laws. In response, Congress kept passing laws until they got one that didn’t get immediately declared unconstitutional.

That’s not grandstanding. That’s a genuine bipartisan crackdown. It’s not a particularly toothful crackdown, but it IS a crackdown.

Nargrakhan · February 8, 2010, 7:09pm

On a random semi-on-topic note: Red Skull is so evil, he denies lolicon to his own daughter.

DarkFusion · February 12, 2010, 6:01pm

Update to the Handley case, the prison sentence has been reduced to 6 months:

http://www.sankakucomplex.com/2010/02/1 … oli-manga/

Nandemonai · February 12, 2010, 9:25pm

It wasn’t “reduced” from anything. He was sentenced to six months in jail. The huge like decade long number being bandied about was the maximum sentence. A first offender with no history of violence, no evidence of any threat to anyone else, convicted for mere obscenity? (As opposed to real CP charges, which are MUCH worse.) Who took a plea bargain? He was never likely to get much more than what he got.

Nargrakhan · February 12, 2010, 11:36pm

On the bright side: he might end up serving three months or less with good behavior.

No child sex offender registration is probably the best part. You can NEVER sociably recover from being registered as a child sex offender (as a few of those CNN reports indicate).