Is Possession of “Virtual” Child Pornography a Crime?

Modern computer graphics software makes it relatively simple for even a novice designer to create realistic-looking images. And with the advent of so-called artificial intelligence models that can automatically generate images based on text prompts, you do not even need to know how to draw to make an image of whatever you can think of. Of course, with such power comes certain risks, especially when it comes to images that the law considers obscene, notably child pornography.

Most people understand that it is a federal crime to produce sexually explicit images featuring children. But what many people do not realize is that it is also a federal crime to produce and distribute images that depict an image that “appears to be” a minor engaging in sexually explicit activity. In other words, if you use a computer to create “virtual” child porn, you are still breaking the law, even though no actual child is involved.

Fugitive Receives 14 Years for Possessing Obscene Images

The United States Court of Appeals for the 11th Circuit recently rejected a First Amendment challenge to the constitutionality of this aspect of the federal child pornography laws. The defendant in this case, United States v. Ostrander, specifically argued that the First Amendment protected his right to privately possess virtual child pornography that he had no intent to distribute.

At the time of his arrest, the defendant was already a fugitive from the law based on a prior conviction for possession of child pornography in Missouri. As part of his original sentence, the defendant had to register as a sex offender. He failed to do so and absconded.

In 2020, federal marshals received a tip that the defendant was homeless and living at a campsite in Gainesville, Florida. The marshals then placed the defendant under arrest. The defendant had a cellphone, a laptop, and 2 USB drives on him. A subsequent forensic search of these devices uncovered approximately 480 computer-generated images of virtual child pornography.

A federal grand jury subsequently indicted the defendant and he was found guilty after a two-day trial. As previously noted, the 11th Circuit rejected the defendant’s appeal, upholding his conviction and the resulting 14-year prison sentence. As the appellate court explained, the “mere private possession of obscene material” is not a crime. This principle does not extend to materials depicting actual children, however, but it does apply to depictions of “virtual minors, so long as no real children are victimized.” That said, there is also no right to “import, transport, or distribute obscene material, even if that material is intended only for private use in one’s home.” The First Amendment does not protect the right to engage in any of those acts.

Contact the Joshi Law Firm Today

Possession and distribution of child pornography is aggressively prosecuted in Florida. That is why you need to work with a qualified Orlando sex crime lawyer who can assist you in preparing an aggressive defense. Call the Joshi Law Firm, PA, today at 844-GO-JOSHI or contact us online to schedule a free initial consultation.

Source:

media.ca11.uscourts.gov/opinions/pub/files/202214160.pdf