Wednesday, May 08, 2002

Jonah Goldberg in National Review Online (and elsewhere) has been fulminating against the decision of the Supreme Court to allow the creation and possession of virtual child pornography (for the uninitiated, that is where images of adults are doctored to make it look like children having sex.) He says, in essence, that we have to stamp out this sort of thing because, well, basically it's nasty. There is, I suppose, an argument to be made that this sort of thing represents a coarsening of public discourse, but that is not per se a reason to criminalise it. Probably the most fundamental principle of Anglo-Saxon jurisprudence is the notion of nullum crimen, nulla poena sine praevia lege; nullum crimen sine iniuria (no crime, no punishment without a previous law; no crime without injury). The praevia part is important; it rules out retrospective legislation. But more important is the nullum crimen sine iniuria part. Who, exactly, has been harmed by the creation or possession of virtual child pornography? Certainly no children. The adults in the doctored images were presumably consenting.

Is there a child protection issue here? Perhaps, if permitting paedophiles to create such imagery makes it more likely that they will abuse children. However, this must be demonstrated a priori, and not merely posited. Could it instead act as a safety valve? Who knows? I don't pretend to understand the mind of someone who would get aroused by pictures of children having sex. Certainly genuine child pornography should be outlawed and its procurers prosecuted to the maximum extent of the law. But there must be a distinction between imagery and actuality. The difference between Saving Private Ryan and Omaha Beach was that in the movie, nobody got hurt. If, in order to make a movie about the Normandy landings, you actually had to butcher several thousand actors, then that would be different. Nullum crimen sine iniuria.


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