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TheHungryTiger -> RE: Dominatrix reported [radio talk show host] Bernie Ward, police say (2/17/2008 11:54:11 AM)
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quote:
ORIGINAL: Emperor1956
I am disturbed by the automatic condemnation of Bernie Ward as a child pornographer by the folks who posted above. In fact, this case is one of many that shows up the significant problems the USA's "Child Decency Act" and related statutes have in the prosecution of "thought crimes".
Lets get this out of the way: I despise child molesters, child pornographers, or anyone who coerces another sentient being unable to give full consent into sexual activity. I have no confusion about mutual consensual adult kink "tolerating" nonconsensual behavior -- the two are completely different, and the latter is despicable. But, the problem here is that there is scant evidence that the images transmitted (at least as reported by the press) were in fact child pornography.
The CDA criminalizes thought as expressed in writing, or visual images. Therefore there have been prosecutions of people for (for example) writing their own fantasies in their private journals of themselves as children involved in sexual play, with no evidence of any dissemination or intent to disseminate, or any other activity relating to the illegal writing.
So here, is the allegation that Bernie Ward sent pictures that he thought were of child porn? What if Bernie Ward thought the pictures depicted children in possible sexual situations, even though the people portrayed actually are over the age of consent? Is that still prosecutable? We know the reverse is never the case: believing the models in the photographs were of legal age is insufficient (generally) to defeat a charge of child pornography distribution if in fact the subjects were children.
The issues raised in this case are far more complex than "oh, bad man, get him!"
E.
Oh shesh ..... where do I even begin with this?
First of all, Im going to assume you are talking about the 'comunication decency act'. There is no such thing as the 'child decency act'. Im not sure what 'related statutes' you are refering to either.
The CDA was struck down as unconstitutional over a decade ago. The supreme court ruled 7-2 that if there were no actual children involved, then the porn in question can not legaly be demed child porn and theirfore the CDA was overly broad and restricted 1st adnment rights. See ACLU v. Reno for more info.
You might be getting CDA confused with COPA. That was the folow up that Clintion pushed into law back in 1998 after the supreme court ruled CDA was unconstitutional. However, an injnction was placed on that before it ever went into law and after much legal mumbo jumbo it was finaly struck down as unconstituional as well in March of 2007 under Ashcroft v ACLU.
As far as the 'private journal' thing Im going to assume your talking abotu the Brian Dalton case. However, that case did not involve the CDA, the COPA, the PROTECT act, 2257 or anything else like that at all. It was a local Ohio law. And furthermore, it wasent a prosecution exactly as he pleaded guilty in a pleabargin to avoid a greater charge. He was out on paroll from a previous child porn charge (yes, real child porn, not thought crimes) and it was his paroll officer who discovered the journal. ANd furhter furthermore, the charge was overturned on appeal in july of 2003.
And lastly, your assertion that the reverse is never the case dosent hold water either. Traci Lords famously made several porn movies before it was discoverd that she was underage. No charges were ever brought forth againt her nor the porn studio she worked for. In that case, believing the model was of suficent age IS enough to defeat the charge of child porn.
But why do I even waste my time refuting any of this? People who have convinced themselves that we are living in a opresive puritinacal theoracy and that the 'thought police' are out to end all sexual expresion as we know it are always going to belive they are opressed no matter what the actual evedence.
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