Adult Film/Internet pornography
If someone is a resident of Nevada and they view pornography on the internet, are they violating a State or Federal law?
Also, while websurfing if they encounter a website that has mostly mature people,but a nudist website showing whole familes nude including their children, is that considered child pornography?
Sometimes it may be impossible to avoid child pornograpy even if unintentional as some websites have photos of both mature and possible children.
Please let me know if such a websurfer would be breaking the law and what would be police reaction to this type of accidental viewing. Also, are Federal FBI or ICE likely to bust someone for that?
Thanks for your quite interesting question. It covers a lot of ground. Let me do the best I can within the constraints of this format.
1. You need to distinguish two important words: "Pornography" denotes sexually-arousing communication, visual or text; "Obscenity" relates to a sub-set of pornography that is the subject of several federal criminal statutes and state criminal statutes in 45 states. Under the protections of free speech, protected by the First Amendment, neither the federal government nor any state is permitted to criminalize all "pornography". However, the strictly limited subset of "obscenity" may be outlawed and involvement with it can be criminalized by American governments. Those limitations go both to the definition of what is "obscene" and the procedures by which the law deals with purported offenders. You will find a great deal of helpful information to explain how the law deals with obscenity on my site in a lengthy article with links to many cases and statutes at http://www.xxxlaw.com/obscenity/index.html
2. There is a constitutional right to possess obscene materials (involving exclusively adults) in the home. You may read the decision of the US Supreme Court on the subject at http://www.xxxlaw.com/cases/stanley.html
. In a police incursion into Mr. Stanley's home based on a search warrant, arising from allegations that he was a bookie, the police found "very little" evidence that he was a bookie as they rummaged through his desk and other private places; but they did find three reels of 8mm movie film containing sexually explicit material. He was charged with and convicted of knowing possession of obscene materials in his home. The Supreme Court reverses in an awesome opinion articulating freedom of conscience, freedom of privacy, and freedom to read. The court held: "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Its apparent broad defense of personal liberty was substantially undermined by the Supreme Court's narrow reading of its holding and reasoning four years later in Paris Adult Theatre, above, and 12 200-Ft. Reels of Film, below. The court has also made it clear that no right exists to possess or view child pornography in one's home or anywhere else.
3. There do exist federal statutes that make it a crime to RECEIVE obscene materials. These statutes are rarely enforced, most typically when the material amounts to child pornography but where some technical or procedural (but sometimes substantive, as in the case of drawings or cartoons made without actual images of children, essential to that crime) reason why a child pornography prosecution can't succeed. Few Americans have a clue that they can become federal felons and be imprisoned for five years for merely downloading what is criminally obscene, material featuring only adults. Check out Whorley http://www.xxxlaw.com/cases/whorley.html
and the associated comments in the Cases Section of my site. Were the public to widley know about this five-year-penalty statute, dangling over the heads of massive numbers of Americans, with all the associated uncertainties about what is "obscene", I suspect it would view the situation as intolerable and all of the statutes relating to adult obscenity would fall immediatly. These laws remain on the books only because they are enforced only infrequently, and then against generally unsympathetic defendants. Like the other federal obscenity statutes dealing with adult-aged performers, there is a five year prison term available on a first conviction.
4. In every successful child pornography prosecution, the finder of fact, judge or jury, must be convinced that the act of possession was knowing, and that the defendant knew the depicted performer to be under the age of 18. The US Supreme Court resolved this in the X-Citement video case in relation to videos depicting the under-age performer Traci Lords. http://www.xxxlaw.com/cases/x-citement.html
The defendant was convicted of the sale of many copies of depictions of the 15-year-old Tracy Lords in explicit sexual conduct. Perhaps for younger readers unfamiliar with her story, I should explain that Tracy Lords was "discovered" on the beach in LA by a porn modeling agency, that she appeared with ID indicating that she was no child, but which she had fraudulently obtained in California by the use of the birth certificate of an adult. Within months, she was a Penthouse Pet, and within a very short time thereafter, she started appearing in mainstream hardcore pornography, ultimately performing in about 100 such features. She was approximately the most popular female porn actress in the country and many thousands of tapes featuring her were on sale wherever sexually explicit materials were found. Very suddenly, and under quite murky circumstances, it became known that she had started her career at age 15. Truly, not many who saw those performances would have guessed that she was underage, because her sexual performance displayed as much innocence, delicacy, naiveté and diffidence (and was as loud as) as a barelling freight train. Here, the Supreme Court contended with the 9th Circuit's reversal of a conviction of a distributor who sold these materials after he knew that Tracy Lords was depicted in them while she was fifteen. The 9th Circuit found the statute under which he was convicted - 18 USC 2252 - to be unconstitutional because it lacked a requirement that the seller knew the material to depict persons under the age of 18. The United States Supreme Court reversed that finding, affirming the conviction, by holding that Section 2252 does require guilty knowledge on the part of the defendant that he or she is trading in materials that depict a minor. The case seems to be about the rules of grammar and how language is to be construed as much as it deals with sound public policy. There was apparently no dispute that the defendant actually did know her age when he sold the material. It is interesting that Justice Scalia and Justice Thomas dissent, and state that they would have upheld the determination of the 9th Circuit that no mens rea/guilty knowledge requirement is contained in the statute and would have thereby affirmed the reversal of a conviction of one who knowingly sold child pornography because he was charged under a statute that did not require that knowledge for conviction. This case also discusses the history of the child pornography statute which, until 1984, only penalized trading sexually explicit materials featuring those under the age of 16.
5. Child pornography criminal statutes typically provide (or are interpreted by courts) to require the depiction of actual or simulated sexual acts of any kind OR lascivious images of children. It's hard to be confused about whether a blowjob is present, in actual or simulated fashion. There's a lot more room for dispute about whether a nude or semi-nude image of a child is lascivious or not. The courts have struggled with the idea and sometimes they seem to get it wrong. One analysis of whether an image appeals to a lascivious interest, that has been used by many other American courts is contained in US v. Dost, http://www.xxxlaw.com/cases/dost.html
. This analysis has even been used to find lascivious depictions of _clothed_ juvenile private parts by one court. US v. Knox. http://www.xxxlaw.com/cases/knox.html
6. People - and courts - are touchy about images with nude and semi-nude images of children. You are playing with fire if you are looking at any images of any kind that show naked kids. Cops, FBI, ATF and prosecutors will go into any investigation assuming that anyone who spends repeated encounters looking at this is fulfilling a sexual need, they will conclude the person to be dangerous, and they will dependably take the position that images in your possession are there because of any faint sexual thrill they may give. Once they arrest you for this offense and the news goes on your local radio station, your life, as you've known it, is over. I've defended these cases. I've seen the pictures which are the basis of the charges. The bulk of the images in one case consisted of nudist and home-taken, relatively nonsexual images. But there were a few that were patently sexual, and that's all it takes for a conviction. You just don't want to be in a position where you are arguing about whether an "athletic" image of some juvenile "nudist" are or are not lascivious, sexual. Lives are destroyed. Stay away.
7. Yes, I have seen people mercilessly prosecuted for what really looked like an accidental viewing of this kind of material. I won the case in the end. But a career was destroyed by the time I won the case three years later. Have I mentioned that you should stay away from all of this?