Sex Crimes
Though homicide is the oldest crime, rape must have been a close second.316 As long as there has been law, it has been punished— though motivated at first more by the damage done the property interests of father, lord, or husband than by consideration for the woman.
Male-on-male rape has long been punished, too—primarily as a violation of strictures on sodomy.317 Statutory rape expanded the offense as the age of consent was raised. That change required adjusting for the relative ages of the parties involved, distinguishÂing between older predators and young lovers. What counted as consent has been debated, too, as reformers sought to ensure that rape was treated as a real crime, not merely an indiscretion. AllowÂing adultery to be punished within the family was long tolerated. Today, sexual betrayal is no longer considered a crime and excuses neither battery nor murder.Sex crimes became the object of particular attention at the turn of the millennium, especially pedophilia. Even while the inciÂdence of rape and sexual assault was falling, convictions for sex offenses quadrupled in the 1990s. Between 10 percent and 20 perÂcent of state prisoners in the US are now locked up for such reaÂsons. Incarceration for child porn and other sexually explicit material increased more than sixtyfold between 1996 and 2010.
Because pedophilia—along with incest and cannibalism—is univerÂsally regarded as viscerally repugnant, few objected as punishments grew more severe. Sentences for pedophilia and child pornography lengthened. The PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act of 2003 in the United States imposed mandatory life on those convicted of child sexual abuse for a second time. Arizona required ten-year sentences for each illegal porn image possessed, thus life in most instances.
The average federal child porn sentence became longer than for all other crimes except murder and kidnapping.318 Long criminal senÂtences for pedophilia are now often supplemented by extensions under civil law, allowing offenders believed likely to recommit to be held beyond their initial verdicts—sometimes indefinitely.319 In 1997, the Supreme Court upheld an instance of someone civilly committed for life in anticipation of crimes he might commit.320 The Adam Walsh Act in 2006 allowed sex offenders to be detained indefinitely after their sentences were complete if they were conÂsidered dangerous. Nor did such civil detentions count as a doubleÂjeopardy bar to criminal prosecution for the same action.321Sexual harm against children, including real-life pornography, is indisputably evil. Virtual pornography—comics, anime, drawings, and the like—poses the question of what precisely is being prohibÂited. If no actual child has been harmed in making it, how and why are viewers of it culpable? For their thoughts? For the corruption of social morality that follows when some are depraved in private (much as Devlin had insisted that private immorality is as impossiÂble as private subversive activity)? What is the underlying crime? Is it enhanced when technologies go beyond two-dimensional porn, allowing viewers to participate actively in on-screen or soon-to-be fully immersive virtual-reality experiences of seducing, raping, or worse? Should it be a crime to sexually violate in cyberspace? Or to do things to pretend minors (virtual ageplay) that would be illeÂgal in the wetware world? Second World, a virtual ecosystem, for example, allows sex with minor avatars.322 No doubt it is but a pale simulacrum of what fully developed virtual reality will soon deliver. The burgeoning sex-robot industry also stands ready to tailor prodÂuct to any taste—including devices resembling specific identifiable children.323 Should virtual rape of a facsimile of an actual human be treated as similar to inflicting emotional distress?324 Would we then be outlawing ideas or fantasies outside of actual harm?
Those who advocate forbidding even virtual pornography have marshaled a Devlian logic on the collateral social damage that folÂlows in immorality's wake.
First, much virtual porn still manipulates images of existing children, thus harming actual victims. Arguing that their materials were virtual, pornographers have in fact sometimes been exonerated.325 But even born-digital images, with no real-world referent, might have noxious knock-on effects. Pedophiles could harÂness virtual porn to convince actual children that joining in was norÂmal and fun. Perhaps they thus whetted their own sexual appetites, raising the chances of an actual sexual encounter.326 But perhaps by having such material—as is also argued for pornography in general— they thus satiated their desires harmlessly, lessening the chances of real-world offenses.327 Did virtual porn encourage the idea of children as sexual objects and therefore put them at risk?328 Arguments at this level of generality cut both ways. Attempts to prosecute child porn also kept the topic in the limelight, helping sexualize children. A case in 1993 determined that even images of clothed children (videos of young girls striking poses in bathing suits) could be pornographic. Cases involving mainstream advertising (Calvin Klein) parsed seemingly innocent photos of children and adolescents in terms of whether their genitals were discernable beneath the underwear, whether they thrust forth their pelvic regions, and the like. Some pedophiles find innocent images the most alluring, thus impeding hopes of policing, forbidding, or even defining child porn except in the most expansive of terms.329 Since even innocuous images can prompt outlawed thoughts, what is not illegal?Undaunted by these conundrums, the law plowed ahead. Britain outlawed "pseudophotographs" in 1994, apparently aiming at computer-generated composite photographs of real people.330 In 2001, article 9 of the European Convention on Cybercrime defined child porn to include both the virtual and the real.331 In 1996, the United States banned virtual child pornography, including any image that "is, or appears to be, of a minor engaging in sexually explicit conduct," whether a computer-generated minor or an adult who looks underage.
It was forbidden to possess, produce, sell, transÂport, ship, receive, mail, and distribute such images in interstate or foreign commerce and by any means, including electronic. Also forÂbidden were all pornographic images of children, whether of actual or computer-generated or morphed children or of youthful-looking adults.332 Aspects of this law were struck down by the Supreme Court in 2002 as overbroad violations of free speech. A compromise in 2003 protected realistic virtual images and nonrealistic ones (drawings, cartoons and the like) unless they were deemed obscene (lacking serious literary, artistic, political, or scientific value). Pornographic images of actual children remained illegal.333 The code now specifiÂcally stated that it was not a requirement that the child portrayed actually existed.334 And it defined child pornography to include comÂputer images "indistinguishable from" images of real minors having sex.335 But it explicitly excluded drawings, cartoons, sculptures, and paintings.336 And it allowed as an affirmative defense that the child pornography in question had been produced with adult actors or that it had been created entirely virtually.337One case under the rewritten law was of a teacher whose comÂputer stored images of the Simpsons cartoon children having sex with adults and animals. In theory, that should not have been actionable. But the defendant pled guilty and the case never went to trial. His computer also held other images depicting actual children in sugÂgestive and clothed poses.338 Another case convicted someone of having anime-style child pornography. No actual minors had been
The State as Enforcer 309 involved, but the material was deemed obscene and thus without free-speech protections. He was also punished for emails describing sexual fantasies with minors—pure speech with no representational qualities.339 Though the legal subtleties of these and similar laws are difficult to parse, the law here came close to prosecuting desires, thoughts, and other mental states. Aiming at the offense of child molestation, an overt and tangible crime, the law in fact ended up targeting pedophilia, a state of mind that is not always acted on.