A fascinating criminal case took place in Canada where a US Citizen was convicted of possession of child pornography for having images of cartoon characters engaged in sexual acts.

Peter Hasler, 25, of Murrells Inlet, S.C., was arrested at Halifax Stanfield International Airport on Sept. 12 after a search of his laptop turned up animated images of characters under the age of 18 being sexually abused.

According to news reports, the man received a 90 day jail sentence and “will have a difficult time ever getting back into Canada”. A 90 day jail sentence is very light for a child pornography case. In Louisiana, defendants facing charges of possession of child pornography are facing 10 years in jail and will be required to register as sex offender for life.

Prosecutors and the judge described the images on Hasler’s computer as vile and immature. And although I haven’t seen the pornographic images, I don’t doubt that is the case. In an interesting twist, however, Hasler would not have been prosecuted for these images in the United States. In 2002, the Supreme Court of the Untied States struck down a provision of the Child Pornography Prevention Act of 1996, that criminalized “any visual depiction, including any photograph, film, video, picture or computer generated image or picture” that “is or appears to be a minor engaging in sexually explicit conduct.” See Ashcroft v. Free Speech Coalition, 535 US 234 (2002).

The court struck down the provision on first amendment grounds stating that it criminalizes “the freedom to engage in a substantial amount of lawful speech.” There are several issues with criminalizing cartoon or computer generated sexual images.

First, child pornography involving a real person is a photograph or video of an underlying crime; a sexual assault. The trading of these images in a secondary market creates demand for more sexual violence against children. Therefore, even though the possessor is not directly harming a child, he is creating the conditions for more harm to children to occur. Obviously, a graphic cartoon  is not evidence of an underlying crime against a child. Without that harm, should these images create criminal liability on the part of the possessor?

Second, a cartoon or a computer generated image is not in fact a person. Bart Simpson has been 9 years old for the past 26 years. How do you assign an age to something that inherently doesn’t age? And what legal standard determines if the images are of a juvenile? It may not always be obvious.

As video technology and virtual reality advance, it may be possible for pedophiles to engage in sex acts with computer generated minors. On one hand, this would decrease the harm caused to real life victims. On the other hand, it may be permitting behavior that could lead to an epidemic of sexual assaults against children. There is no way to know at this point. Do we err on the side of protecting children and infringe on technology that may have artistic merit such as a video game? Criminalizing these images may not be the answer but should they be encouraged as well?