Australia should liberalize its policies on child pornography

== Definitions == Liberalize = "remove or loosen restrictions on" [1] == Plan == Plan: Australia should repeal any federal and state laws criminalizing child pornography that (1) involves fictional characters and (2) did not use any real children in its production. == The Current State of the Law == Currently in Australia, not only is child pornography that contains *real* children illegal, it is also illegal to have "child pornography" that contains any virtual representation of someone that appears to be a child (such as cartoon characters). Under Section 474.19 of the Australia Criminal Code, it is illegal to obtain "material that depicts a person, or a representation of a person, who is, or appears to be under 18 years age and who: (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity, or (ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity." In addition, Australia defines child pornography as "a range of material including that which depicts or describes persons under eighteen engaged in the sexual pose or sexual activity, or in the presence of a person who is engaged in a sexual pose or sexual activity." [2] A man was charged under Australian law for possessing a picture that contained visual depictions of a naked Bart, Lisa, and Marge Simpson. [2] The New South Wales Supreme Court ruled that the word "person" in the statute encompassed cartoon characters and held that the accused had thus violated the law. [2] "The learned Magistrate rejected the submission made on behalf of the plaintiff that cartoon depictions or representations of fictional characters such as the Simpsons were not of "persons."" [2] After guessing the age of the Simpsons characters ("the young male is about ten years old, the female about eight years old"), the judge sentenced the man for violating Australia"s child pornography laws. [2] == Advantage 1: Free Speech == Section 474.19 is extremely broad. Not only does it capture simulated sex between cartoon characters that appear to be "under the age of 18," it also criminalizes the depiction of sex between *adult* cartoon characters while a child cartoon character is in the same room. The statute bans depictions of children who are "in the presence of" a person engaged in sexual activity. Thus, even the actual television show "The Simpsons" would be banned in Australia from showing a scene where Marge and Homer are having sex under the covers and Lisa walks in on them. South Park has little hope of not being censored in Australia. In fact, the recent South Park video game has many of its scenes censored in Australia for precisely this reason. This is what Australians see when they reach the censored portion of the game (see source). [3] In addition, Australia"s definition of child pornography encompasses written "descriptions" of sex between minors. Many great literary works contain descriptions of sex acts that involve minors. For example, Game of Thrones is notorious for having a great number of sex scenes, but many of the characters in the book are under 18. For example, Daenerys Targaryen - who has had more nude scenes in the show than any other character - is 13 years old in the books. For the above reasons, the United States Supreme Court struck down an American law [the Child Pornography Prevention Act] which criminalized any material depicting what "appears to be, of a minor engaging in sexually explicit conduct." [4] The Court stated, "The statute proscribes the visual depiction of an idea -- that of teenagers engaging in sexual activity -- that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations (in 39 States and the District of Columbia, the age of consent is 16 or younger). . . . Both themes -- teenage sexual activity and the sexual abuse of children -- have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9. . . . Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie, Traffic, which was nominated for Best Picture. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man. . . . [These films] explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment." [4] The Supreme Court therefore held that the Child Pornography Prevention Act violated the Constitutional protection of free speech. Australia should repeal the overbroad portions of its child pornography law (that apply to mere "depictions" of minors) in order to uphold the principles of freedom of expression. Free speech is necessary to prevent tyranny. == Advantage 2: Harm Principle == William J. Stuntz, who is critical of the over-criminalization of conduct in the United States, explains that the short-lived French "Declaration of the Rights of Man" offered superior protection than the American Constitution because the American Constitution provides only procedural protections (such as a right to a lawyer, a right to a jury trial) but the Declaration provided substantive protections, which prevented the State from over-criminalizing behavior [and thereby infringing on freedom]. The Declaration provided that (1) "the law has the right to forbid only such actions as are injurious to society" and (2) "the law ought to establish only penalties that are strictly and obviously necessary." [5] The first provision of the Declaration constitutionalizes John Stuart Mill"s harm principle, which provides "That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." The United States Supreme Court"s decision in Lawrence v. Texas came close to constitutionalizing the harm principle when it stated that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." [6] In Lawrence, the Supreme Court struck down a Texas sodomy law which made it illegal for any person to engage in anal sex. [6] Australia should make a statement that it is adopting the harm principle by decriminalizing the possession of visual depictions of characters that appear to be under the age of 18 if no actual children were used to produce the image or written description. If no actual children were used in producing the depiction, no one is harmed by it. The harm principle is necessary to prevent tyranny because - without it - the State can criminalize any conduct it likes. == Advantage 3: Fewer molestations == In simple economic terms, the availability of substitutes for a certain good will decrease demand for that good. In this case, the availability of substitutes for rape decreases the amount of rapes that occur. For example, studies have found that the legalization of prostitution in the United States would decrease rape in this country by 25%. [7] When other alternatives for releasing sexual frustration are available, rape empirically occurs less often. [7] Professor Todd Kendall found that for every 10 percent increase in access to pornography, there is a 7.3 percent decrease in the number of rapes. [8] To the extent that cartoons and other artistic depictions of children allow pedophiles to release their sexual frustrations without harming any actual children, these depictions will prevent actual molestations from occurring. [8] For these reasons, I urge you to affirm the above-offered Plan. [1] Google "define liberalize" [2] http://tinyurl.com... [3] http://25.media.tumblr.com... [4] Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) [5] http://www.newrepublic.com... [6] Lawrence v. Texas, 539 U.S. 558, 577 (2003) [7] http://www.yapaka.be... [8] http://www.slate.com...