2019年法律奖一等奖

Should computer generated child pornography be permitted?
是否应该允许计算机生成的儿童色情制品？

In this essay, I argue that the possession, publication, and distribution of computer-generated child pornography should be legal, given that a) there is inadequate evidence to substantiate the claim that computer-generated child pornography (hereinafter CCP) causes harm to children or society, and b) CCP is a legitimate form of speech meriting legal protection. I will defend my position by first, refuting some of the more convincing propositions put forward by advocates of criminalization, and second, by explaining my own argument.

Before delving into the discussion of relevant arguments, I will clarify the definition of CCP. The United Nations defines child pornography as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes” (Europol, 2005). CCP is defined as “realistic images of a non-existent child involved or engaged in the conduct” described in the U.N. definition of child pornography (Europol, 2005).

One of the major arguments proposed by those supporting criminalization is that consuming CCP stimulates pedophiles to sexually abuse real minors. For instance, in the United States, it was found that about 34% of 1,807 individuals charged with child pornography during the years 1997 to 2004 had committed sexual abuse against children (Kim, 2004). However, apart from the ‘correlation does not indicate causation’ problem inherent in this statistic, only some of the existing evidence supports the aforementioned claim. In his paper, Virtual Child Pornography, Michael Veber notes that child pornography may bring “therapeutic and cathartic effects” to viewers, referring to an interview conducted with a group of thirteen men guilty of possessing child pornography (Veber, 2004). While some of the men had maintained child pornography helped to drive the desire to harm children, others had explained that the material satiated their sexual desires, or even induced a sense of disgust towards the notion of making sexual advances to a child (Veber, 2004).

Evidence is to be found outside of the anecdotal realm. In the late 20th century, when Denmark, Japan, and the Czech Republic saw an increase in the availability of child pornography, child abuse rates decreased for all three countries (Diamond et. al, 2010). What the conflicting data serve to affirm is the idea that it would be disingenuous for one to claim CCP unequivocally leads to more sexual abuse, or, if one is arguing for legalization, that it does not. Hence, I will not use this point of contention to support my position, but merely to emphasize that the argument should not enhance the persuasiveness of the side proposing the criminalization of CCP.

Another argument I will deal with is the claim that CCP leads to the objectification of children. I will separately address the objectification done by consumers of CCP and that which is done by the rest of society. In the case of the former, I question whether the issue of objectification is nearly as relevant. This is because many of whom are expected to consume CCP are individuals who are not only attracted to children, but those who also wish to experience sexual arousal through CCP. In the minds of such consumers, children are already objectified, because viewers are choosing to conjure a situation in which they are engaging in sexual activity with a minor, despite acknowledging that the actions contained in the imaginings would severely harm a child in reality. If this stands true, I find it dubious that legalizing CCP would meaningfully impact the way in which consumers view children. In the case of non-consumers, by definition, they will not be well exposed to CCP. That is, even if we entertained the notion that viewing CCP is likely to influence individuals’ morals, non-consumers may lack sufficient exposure to the material in question. However, I reject the very idea that CCP will change society’s perception of children. Most individuals regard children to be a vulnerable cohort of citizens who require special legal protection because people have been socialized in such a manner (one could also argue that people have innate morality, but this is up for another debate). Even if CCP were to be legalized, I am confident that people will recognize that what is being tolerated is not the behaviour depicted in CCP, but instead, the expression of one fantasising about the behaviour. According to an analysis of interview responses of 10,946 American men and 14,101 American women to survey questions from the General Social Survey, those who consumed pornography were more inclined to support gender equality than those who did not (Baer and Watts, 2015). Based on this study, I could argue this. Among those who watch adult pornography, there are individuals who only wish to fantasise about consensual sex and not sexual violence. These are individuals who likely do not hold objectifying beliefs against women. What the above study suggests is that exposure to pornography does not sway the attitudes of these individuals. Similarly, the legalization of CCP is unlikely to cause the average citizen to objectify children.

The playing of violent video games can also be used to draw an analogy (Luck, 2008). Violent video games, like CCP, involve humans immersing themselves in content that realistically depict actions deemed morally wrong by society. And it is possible that some of the consumers, similar to the consumers of CCP, enjoy watching the immoral actions. Yet the rise in prevalence of violent video games has not been accompanied by a propagation of attitudes that dehumanize human beings. Though violent video games may not be interchangeable with CCP, the example seems to suggest that people are capable of distinguishing what belongs in the virtual world from what is permitted in reality.

The final argument for criminalization I will examine goes as follows: the desire to engage in sex with a minor is reprehensible, and knowingly “cultivating” an immoral desire is repugnant, therefore CCP should not be sanctioned by the state because CCP facilitates such a cultivation (Bartel and Cremaldi, 2018). This line of reasoning seems to endorse the application of legal moralism, where “a community has the right to use the legal system to proscribe conduct that is wrong according to community moralit\y” (Cranor, 1979). It is questionable, however, whether punishing someone can be justified on the mere basis that one violated a moral principle. Not only might there not exist a coherent “community morality” in the first place, moral standards are inherently subjective (Cranor, 1979). A particular action could violate one community’s standard but not that of another, and hence, it does not seem fair that a person could be punished for committing an act that has not caused any obvious harm to oneself or to others. Indeed, one could use the proposed argument to justify the criminalization of homosexuality, based on the idea that the latter is incompatible with some sort of unspoken moral law. (Stahl, 2009).

If the ‘cultivation’ argument is rephrased to become ‘the state should prevent the degradation of moral character which occurs as a result of cultivating an immoral desire’, another issue becomes evident – is ‘cultivating’ an appropriate word to describe the way in which consumers’ desires are affected by CCP? I argue that it is not. ‘Cultivating’ pertains to the idea that one is ‘developing’ a sexual desire. But one could simply be ‘stimulating’, or ‘fulfilling’ their sexual appetites, rather than developing them. And if an individual is simply ‘stimulating’ their desires through CCP, it appears that the intensity of the desire – in the long run – will remain relatively the same whether or not the individual consumes CCP. That is, a person’s moral character is unlikely to corrupt further.

Even if we were to assume that all viewers of CCP necessarily ‘cultivate’ their desires rather than ‘stimulate’ them, I maintain that state paternalism is not justified in this instance, for the reason that it could infringe upon citizens’ autonomy. As the state’s aim is to prevent the moral character of consumers of CCP from further corrupting, the state would have to prevent these individuals from having certain thoughts, provided that the goodness of one’s character depends on one’s thoughts and beliefs. Herein lies the problem. While most members of society agree that freedom of speech can be justly limited when it prevents others from exercising their rights, I doubt that the same group of individuals will assent to the government’s interference in the lives of private citizens to restrict the scope of their thoughts, especially if these thoughts do not translate into objectively harmful acts against others or oneself. Thus, the proposed argument is in danger of granting the state undue authority over citizens.

Why is the freedom of speech valued? According to J.S. Mill, free speech allows conflicting opinions to be expressed, which brings society closer to its ultimate goal of realizing the ‘truth’ (Mill, 1859). If we were to consider CCP in light of this view, the production and consumption of CCP may at first appear to be irrelevant to this truth-seeking endeavor. However, the opinion conveyed by CCP is the idea that it is pleasurable to fantasise about sexual encounters between adults and children. This opinion may be deemed ‘low-value’ and unconscionable in nature – but it is precisely the nature of the message intimated by CCP that begs its legal recognition. The primary purpose of free speech is to bring out into the open the most controversial ideas rather than the most accepted, as it is expected that opinions shared by the majority will be permitted regardless of whether the right to free speech is formally established (Loewy, 2002). Hence, not only does CCP reveal a legitimate viewpoint, legalization is necessary for the sake of upholding the integrity of free speech principles. And if self-expression truly does “[derive] from the widely accepted premise…that the proper end of man is the realization of his character and potentialities as a human being”, an objection based on ‘insulting to moral values’ does not seem to justify censoring the expressions of pedophilic individuals (Emerson, 1963), (Stahl, 2009). Further, legalizing CCP does not prevent those who find it offensive to voice their opinions on why the production and consumption of the material is unethical.  On the contrary, legalization can push those who disagree with the policy to more actively advocate for their position; this would allow everyone to participate in the societal discourse concerning the morality of CCP. Though it is unlikely that those opposing CCP will persuade viewers to discontinue the activity, the point here is not that the consumers of CCP will stop viewing it with legalization (which is anyhow an apparently self-contradictory statement). Instead, we should tolerate CCP for the reason that it provides an avenue by which society can promote moral values – namely, that of not engaging in CCP – in a noncoercive manner.

Perhaps it is because computer-generated child pornography is concerned with the well-being of children that we adopt a particularly wary attitude when addressing this issue. After all, it is believed to be the intrinsic duty of adults to care for those who are not yet prepared for a world that can at times be menacing and exploitative – given this, even if there exists a small potential for CCP to cause either direct or indirect harm to children, should we not override the freedom of speech to protect the interests of children? I hold that we must reconsider this question. If the legalization of CCP will not lead to an upsurge in sexual violence nor objectifying attitudes against children, and if we agree that criminal law must not be based purely on our notion of morality, then we must not let personal assumptions dictate the legal status of CCP. A world where speech can be curtailed if it fails to reflect the perspectives of the ideally virtuous citizen – this is a world all of us ought to fear.

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