Illustrating this article might make me a criminal

“Steve Kutzner Pleads Guilty to Simpsons Porn.”

“Man Faces Ten Years in Prison for Downloading Simpsons Porn”

“Former Teacher Pleads Guilty to Possession of Obscene Visual Representations of Child Sexual Abuse.”

(c) Nonrequired Element of Offense.— It is not a required element of any offense under this section that the minor depicted actually exist.              –Title 18 U.S.C. 1466A

When I first read the United States Attorney’s Office- District of Idaho’s press release regarding Steven Kutzner, the 33 year old former middle school teacher who pled guilty to “possession of obscene visual representations of the sexual abuse of children,” specifically images involving Simpsons characters having sex, I was shocked. How can possession of images of fictional characters engaging in fictional acts be a crime?  How dangerous is a drawing?  What’s the legal status of Harry/Draco fan art?  Could every comic reader in possession of Lost Girls, Alan Moore’s and Melinda Gebbie’s ode to childhood, loss and sensuality, be in danger of prosecution?

Well, the answer is no, except when it’s yes.

It’s important to state from the top that the issue, and this prosecution in particular, are a lot more nuanced than they might seem on the surface. Just reading over the press release from the U.S. Attorney’s Office, one could be forgiven for being confused as to the nature of the case. It has all the hall-marks of a “trust us folks, we’re really doing something to protect your children” public relations move, including a big, juicy quote from Immigration and Customs Enforcement special agent/talking head Leigh Winchell:

We aggressively use our investigative authorities to protect our communities from those who seek to sexually exploit children for their own perverse gratification.


Leigh Winchell has been the face of ICE in several high profile cases in the past year involving the Pacific Northwest, including cases involving international travel for prostitution , child pornography , international child rapists , and the recovery of stolen historical treasures (“Hitler’s bookmark”) of dubious authenticity. He’s the man that carries the big quote.  So, was this just a case of prosecutorial overreaching, of making a case into something it initially wasn’t for the sake of a news payoff?  Was Kutzner just a scared man pleading guilty to something he never should have been prosecuted for in the first place?

When I contacted Jim Peters, Assistant United States District Attorney for the District of Idaho, and the prosecutor on Kutzner’s case, he cleared up several things for me immediately. First of all, he wanted it to be clear that the images Kutzner pled guilty to possessing were emphatically not “child pornography,” at least not in a legal sense.  Rather, these images, described in vivid detail in Kutzner’s plea agreement, were “Obscene Visual Representations of Child Sexual Abuse.” (This distinction was made necessary by the Supreme Court striking down the Child Pornography Protection Act of 1996, the government’s first stab at outlawing “virtual” child pornography, which would have potentially outlawed works like Lost Girls, in addition to other works of cultural smut like “schoolgirl” spreads in Maxim magazine, and the Zefferelli Romeo and Juliet.  The PROTECT Act of 2oo3 took another stab at the issue with section 1466A, which, in an attempt to narrow its scope to pass constitutional muster, added an obscenity test to its standards.  The Supreme Court has so far declined to hear all cases challenging this law.)

In order to be prosecuted for the crime of possessing said images, Kutzner and the images had to meet the following criteria:

First, that the Defendant knowingly possessed a visual depiction;

Second, that the visual depiction depicts a minor engaging in sexually explicit conduct;

Third, that the visual depiction is obscene;

Fourth, that the defendant knew of the sexually oriented nature of the visual depiction;

Fifth, that the visual depiction involved in the offense had been mailed, shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that had been mailed, or that had been shipped or transported in interstate or foreign commerce by any means, including by computer.

The third criteria is the trickiest, as obscenity in the United States is defined by the (notoriously slippery and subjective) Miller test:

Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,

Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Even if a prosecutor cleared all these hurdles and managed to convince a jury of the obscenity of the images in question, the defendant might have a chance at appeal under the Stanly v. Georgia decision (Stanley v. Georgia, 394 U.S. 557, 568 (1969)), which reinforced the right of citizens to “consume” obscene materials within their own home.

So, why would Steven Kutzner plead guilty?

Well, there are clues in the press release for those with enough legal knowledge of these areas (not me) to read between the lines. The details are much more clear, however, in Kutzner’s plea agreement.

“In December 2008, the German Federal Police, child pornography unit, advised the U.S. Immigration and Customs Enforcement Attache in Frankfurt of a German criminal investigation into the distribution of child pornography via the Internet. The investigation involved the distribution of a known child pornography file on the “eDonkey2000” and “Emule” peer-to-peer file sharing networks. The ICE Attache in Frankfurt requested the assistance of agents in the United States in determining the identity of the users in the United States who had offered to share the relevant file for download. The IP address of Steve KUTZNER, a resident of Boise, Idaho was identified as offering the file for download on October 4 and 5, 2008.”

Months later investigators from ICE and Homeland Security contacted Kutzner and asked to forensically examine his computer, which he consented to. In addition to the seventy “animated pornographic image files” involved in the plea agreement, which depicted “minors engaging in sexually explicit conduct,” the Idaho State Police Computer Forensics Examiner also found five hundred and twenty four “pornographic images of teenaged females.” Although the plea agreement notes, “It is difficult to determine if the females in these files are less than 18 years of age, however none are prepubescent.” Lastly, the CFE found “eight-thousand-eighty nine (8,489) files containing images described by the examiner as possible Child Erotica,” i.e. “non nude or semi nude photographs and videos of children in sexually suggestive poses that are not themselves images of child pornography, but still fuel the sexual fantasies of pedophiles and others who have developed a sexual interest in minors.”

More damning than this laundry list of sexual prurience was Kutzner’s admissions of using the file sharing sites in question, his connection to the I.P. address of interest to the German authorities, and his admissions to using various file-sweeping programs to periodically wipe his hard drive. These might not be prosecutable offenses, but they were enough to convince the investigators that Kutzner was the man identified by the German investigators.

Jim Peters told me that his office’s priorities in setting up this plea agreement were three fold: one, to make sure that Steven Kutzner no longer worked with or had contact with any children, in his former capacity as a middle school teacher or otherwise. Number two, that he would enter into a treatment program, “including but not limited to cognitive/behavioral treatment for sexual deviancy.”  Thirdly, that Kutzner would be serving time.  In exchange for Kutzer’s pre-indictment guilty plea of possession, the government agreed not to charge Kutzner with receiving obscene visual representations of the sexual abuse of children, and agreed to waive the five year minimum sentence requirement.  (Although the sentencing recommendations have yet to be made, Kutzner could still be serving a maximum of ten years.)

There are still two potentially thorny issues involved here that haven’t been touched at all. First of all, if the crime that Kutzner actually pled guilty to, and not any of the other potential crimes implied in the plea agreement and the investigation, had actually gone to trial, would he have been found guilty? Would a jury have found the images obscene?

The following are descriptions from the plea agreement, which includes descriptions of four of the seventy images.

“B. A cartoon depiction of the Bart Simpson cartoon character (a minor) standing up nude and receiving oral sex from the Maggie Simpson cartoon character (a toddler) who is also nude. The Maggie Simpson character also has a pacifier inserted into her vagina and the Bart Simpson character has a commentary bubble over his head that states, “Ah, you’re little sucker! You like it, Maggie, don’t you? I guess this thing tastes better, than your pacifier!””


“D. A cartoon depiction of the Maggie Simpson cartoon character (a toddler) nude and engaging in vaginal sex with the torso of what appears to be a male adult character. The caption above the images reads, “A little shoving can go a long way?.””

This section of the plea agreement also includes this helpful clarifying sentence: “An Internet search of the encyclopedia website www.wikipedia.org listed the three minor-aged Simpsons character’s ages as ten, eight, and baby.”

The first two prongs of the Miller test would probably be arrived at fairly quickly. Most people would probably agree that images like those described would appeal to “the prurient interest,” and that those images would be depicting “in a patently offensive way” “sexual conduct.” But what about the third criteria? “Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” Surely a good defense attorney could scare up a credentialed professor to lend some legitimacy to just about any cultural artifact. Is there any scrap of human creation that has not a shred of “literary, artistic, political or scientific value”?

Ultimately, we’ll never know how this would have gone with a jury, but there seems to be at least some doubt about any potential outcome.

The second issue that remains to be discussed is the (admittedly abstract) idea that a work of “serious literary, artistic, political or scientific value” that also depicts sexual conduct in a “prurient way” could be transformed, via a change of context, into an “obscene” work. Let’s take a very low-tech example. Suppose someone were to go to their local library, check out a copy of Lost Girls, and photocopy just the panels depicting sex acts between minors. He places these in a folder in his house with every other image he’s collected that gives him similar gratification– clippings from parenting magazines, Sesame Street stills, drawings he’s created himself of the cast of Family Guy engaged in a bacchanalia. At some point our theoretical criminal becomes bored with his entire collection.  He takes the whole thing and mails it to his friend who lives in another state.

Would this person be eligible for the same prosecution that awaited Kutzner?

Take all my references to photocopying and mail and replace them with scanning and file sharing.  Anyone want to be a test case?

I put the Lost Girls scenario to Jim Peters. With the caveat that although he’s handled thousands of similar crimes, he’s not a legal expert on obscenity, he told me that “in the child pornography arena, context can matter,” going on to detail the typical ways in which, in the photographic realm, legitimate uses of photography of children (medical, crime investigation, family snapshots etc) can be transformed by the context of other items into child pornography.  He also pointed out that “the intent of the people whose cases we see – people involved with child pornography, usually have large collections of images and videos depicting prepubescent and pubescent minors – so their intent tends to be obvious.  They nearly all make admissions to investigators and plead guilty.”  In other words, the one-third of you that read this and immediately Google search “Simpson’s porn”  are unlikely to be prosecuted for the contents of your web browser’s cache. At least, not by the Idaho District Attorney’s Office.

So in this case, in this particular instance, it genuinely seems like an understandable and perhaps justified use of the law.  Certainly most people would reach the same conclusion as A.D.A. Peters– that Kutzner is a person that should in no way be working with children, that he probably was involved in the distribution of actual child pornography, and in this case law was used in a clever and expedient way to ensure that society’s best interests were protected.

If we take a moment to put Jim Peter’s avowals aside, however, what’s to stop an interested investigator from targeting sexual drawings, sculptures, writing etc. that they believe could fail an obscenity test, finding online distribution of said works, and tracking IP addresses of every person that shares this file? What’s the difference between Steven Kutzner and someone who reads Harry and Draco slash fanfic? Well, the practicality of all those arrests might dictate caution to any potential investigator.  But if there really is a law on the books that mandates five to ten years in prison and a lifetime of court ordered treatment and restraint, and that law is applied selectively, what does that say about the society that created it?  Do we want to have such a crushing penalty for an activity that harms no one in the creation, reflects the fears or desires of its creator and consumers, and is readily available to anyone with a web browser? What does it say about our justice system when the difference between a sex offender and a Simpsons fan with a sick sense of humor is the whim of local investigators and prosecutors? In this case, as I said, it seems like the right decision was made. Do you trust that will always be so?

It’s a smaller issue, but one that’s worth noting- there’s no doubting that laws and prosecutions like these can have a chilling effect on speech of various kinds.  If you’ve gotten this far in the post you’ve probably noticed a lack of explanatory illustration.  This is primarily because I am (sensibly) a coward.  It would possibly be legal for me to attempt to acquire the images in question for use in this article, as most reasonable people would probably agree that a discussion of the events of the trial and the discussion of the nature of the pictures involved would have, at least a little, “literary, artistic, political or scientific value.” And yet no one will do so.  Not me, not any of the folks who’ve blogged about this incident, not anyone else who might discuss this in the future.

More importantly, until the Supreme Court actually takes up this issue itself, this law will continue to be used as individual prosecutors see fit, which means that lots of material will continue to exist in a legal gray area.  Just like being a direct market comic shop owner in the eighties, it might just be a scary time to be a dealer in Japanese import periodicals. (It might be hard to disprove obscenity when all the context, all the potential “literary, artistic, political or scientific value,” is in another language!)

So, can your imagination still get you locked up in the United States?  Maybe we should ask Mike Diana.  And as for everyone else?  Well, you’re welcome to keep thinking those obscene thoughts of yours.  You can even draw a picture of them if you’d like.  But move them over state lines, by car or by boat or by high speed internet, and you’re fair game for any prosecutor that feels up to the task.

But most likely they’ll just ignore you, just like the rest of us do.

******************

Earlier I asked if there was any scrap of human creation that didn’t have some type of literary, artistic, political or scientific value.  Well, after a day of writing and researching this, and a few more days of weary revision and reconsideration, I’m not sure if any of it is worthy of consideration.  Maybe it’s all obscenity. Strip away the context and almost any image is a celebration of the violent, of the physical, an echo of the worst acts that humans perpetrate upon each other. Maybe underneath it all it’s just shitting and screwing and killing.

I really need another picture of He-Man.

Hm.  I do feel a little better.

34 thoughts on “Illustrating this article might make me a criminal

  1. I’m not sure those Simpsons images could be credibly argued as appealing to the prurient interest. As I understand the term, that means they can reasonably be seen as intended to incite sexual arousal.

  2. Interesting article. What you’re ultimately asking is should we trust the judgment of judges and state attorneys when they apply the law (i.e., there are other areas and circumstances where officials can choose to either vigorously prosecute or simply drop charges).

    I doubt that the Supreme Court will take up this issue (at least for the forseeable future), because there are regional differences with regard to what is “decent” vs. “obscene” and they would want to leave those decisions to the discretion of local law enforcement.

  3. Patrick-

    >>there are regional differences with regard to what is “decent” vs. “obscene”>>

    I’d imagine this is one of the reasons they’ve neglected to do so. However, with the advent of the internet being the primary means of communication and distribution of media of any kind, local community standards (i.e. the whim of a local jury) is an increasingly irrelevant way of evaluating obscenity.

  4. “What’s the difference between Steven Kutzner and someone who reads Harry and Draco slash fanfic?”

    VM would know better than me, but I’m pretty sure that this comes up with some frequency on LiveJournal and other sites where Harry/Draco slash and similar things hang out. Illustrating Harry Potter fan fic in particular can be problematic — not usually in an arrest you way, I don’t think, but you can have your pictures taken down, lose your account, etc.

    Also, I have to ask…why He-Man?

  5. Noah,

    I’ve heard tell of such kerfuffles. My wife was in a lot of fanfic communities for a while and I thin that was a pretty frequent event.

    As for He-Man… I was looking for something innocuous to illustrate the article with, and I happened to find this particularly hideous He-Man book, and the more I looked at these crude illustrations the more germane they seemed to the topic at hand.

    Additionally, I don’t know what the laws of consent are in Eternia, but Adam, He-Man’s alter ego who looks exactly the same as He-Man except he wears a pink blouse and white tights, is supposed to be a teenager. But He-Man’s supposed to be some type of eternal spirit, so I’m not sure how the justice system feels about that. So, Noah, I need your legal opinion on He-Man/Skeletor….

  6. I was going to suggest that you drew those He-Man pictures when you were 8 or something. The Skeletor on Teela images are obviously pornographic as well. Otherwise, what a homoerotic storybook…clashing swords, Skeletor looking in awe at shiny weapon, He-Man riding on a cat-organ etc. Context is everything.

  7. <<I was going to suggest that you drew those He-Man pictures when you were 8 or something<<<

    Man, I wish!

    I find the Skeletor and Teela image disturbing on so many levels it's really hard to separate out all of the elements of wrongness. But certainly the method and verisimilitude of his grasping of her arms is one of my primary considerations. And the, erm, pelvic positioning. And her proportions. Etc, etc. Glad you enjoyed the illustrations too.

  8. Sean, good article. I like the fact that you went and did some actual reporting spadework, and that you took the time to examine all sides of this particular case.

  9. Pingback: CBLDF » Link: Analysis of Steve Kutzner Protect Act Case

  10. Tyciol’s talking about this:

    “Lastly, the CFE found “eight-thousand-eighty nine (8,489) files containing images described by the examiner as possible Child Erotica,”

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  12. “How can possession of images of fictional characters engaging in fictional acts be a crime?”

    While it wasn’t considered a crime per se, remember the backlash when the computer game Rapelay became widely known. Even organizations within the UN demanded the censoring of the material. And it, too, was a totally fictious piece of work (no real models, no characters based on real individuals).

    Of course, there are segments within our society who are actually more accepting of child molestation and making a mockery of it. For example, a local radio station recently took the image of a well known child and a well known adult and used morphing software to combine the two. While such morphing techniques have been used for decades to produce an “offspring” image, typically it was the combining of two adults.

    However, the local radio station, having posted the image on their FB page, included the description “If were to smoosh with this would be the result.” Clearly, based on the context (not a reference to morphing two photos but rather the direct interaction between a child and an adult, using the Jersey Shore slang term “smoosh” to mean “have sex”) meant that they were making the mockery of the idea of two REAL individuals, a child and adult, having sex, even ficticious sex.

    I’ve always felt that “pop culture”, or ANY form of art, was merely imitating the society that supports it, rather than the claims others make that “pop culture” or the like actually influences society.

    Based on the majority of the comments to the image, the society that such an image was created from was one that fully supported making a mockery of sexual encounters between adults and children. They attempted to divert and mislead, even claiming that the description and its context did not mean sexual contact between adult and child, showing just how bad society has gotten over the decades. Yet, the image, and other similar ones, are the product of that society.

    The same is actually true of totally fictional material, such as the Simpson’s porn and Rapelay. Such material isn’t creating the society or having a negative impact on the society that makes use of it. It’s the PRODUCT of the society it imitates. It should be a far bigger concern that there is a significant portion of society that is so accepting and encouraging that art CAN imitate it so successfully.

  13. “I’ve always felt that “pop culture”, or ANY form of art, was merely imitating the society that supports it, rather than the claims others make that “pop culture” or the like actually influences society.”

    I don’t think this has to be an either/or.

    Tom Paine and Harriet Beecher Stowe had some sort of effect on public opinion, most people agree. If they did, it seems reasonable to think that others could as well.

    A strong case for free speech has to be built on the recognition that occasionally such speech does actually affect behavior.

  14. The real issue here isn’t the material so much as it’s that the authorities don’t want this guy in contact with kids. He’s being told that given his interest in this stuff, he needs to find a career other than teaching.

    This has been true of other obscenity prosecutions. There was a comic-shop owner in my former hometown of Sarasota, Florida who was busted for obscenity 20 or so years ago. As the case progressed, it became very clear that the comics in question were just a means to an end. The guy turned out to be a parole-jumper from another state who was convicted of statutory rape of a teenage boy. The local authorities suspected this from the get-go. They didn’t care about the content of the comics. No one who lives in Sarasota thinks the powers that be care about smut–it’s all over the place there. The authorities just didn’t want this guy operating a business that had him in regular contact with minors.

    I followed the Mike Diana prosecution pretty closely. There was very little concern over the “obscenity” of his work. The prosecutor portrayed Diana as a budding serial-killer who needed to be dealt with. The jury went along with it, and, quite disgustingly, so did the judge. Diana’s lawyers were also incompetent, and that didn’t help, either.

  15. I think there’s a saying that ‘bad compromises make bad law.”

    There obviously was an impulse to put this guy away as quickly as possible — probably justifiable: from all accounts, including Sean’s, he was a bad actor.

    But the shortcut via his “ownership” of pedophilic cartoons sets a bad, bad precedent.

    American law is largely an extension of British common law; it gives an outsized preference for precedent, compared with code-centred law such as France’s Napoleonic Code (which is influential far, far from France: it’s the bedrock of civil law in states such as California and Louisiana.)

    This outcome sets a bad precedent, to my mind.

    Do I have to worry about my possession of Crumb’s ‘Joe Blow’, for instance?

  16. Tyciol- not really sure about the discrepancy with the numbers- seems like a typo to me. Just double checked the plea agreement and that’s how it’s presented there.

    Andrew- Thanks for the examples. I hadn’t heard anything about the first issue you brought up- sounds pretty foul. One thing I didn’t really stress in the article- I think it’s perfectly valid to condemn people for speech with which you violently disagree. But it’s another thing to forbid that speech, or create punishing (and possibly arbitrary and capricious) legal penalties for that speech.

    Robert- Diana’s whole trial was indeed a bizarre incident. It’s my understanding that he was first singled out because someone read one of his pamphlets and thought there might be some connection to an actual serial killer that was still at large. And from there… who knows what they were thinking? I would have liked to take some time to connect this more recent wave of prosecutions with the 90’s obscenity charges. Maybe in a future article, if there’s interest in it.

  17. Alex-

    “Do I have to worry about my possession of Crumb’s ‘Joe Blow’, for instance?”

    That’s the most bizarre thing about the whole issue to me- that, in the eyes of your potential prosecutors, it’s the context of this that would be most important. When they find it in your house, do you have Joe Blow on a shelf with other 60’s underground comics, or was it separated into a file folder labeled “porn” with the dialogue bubbles whited out? I tried to get at this strange and slippery transformation via context in the last few paragraphs.

  18. Sean’s actual journalism here– interviewing the different parties — has got me pondering. I should get off my derrière and do some real reporting. Paris certainly isn’t a city lacking in comics-related subjects and people to interview…

  19. You know, I actually waited a few weeks before researching and writing this- I kept thinking that with an incident this major, surely there would be someone out there interested enough to do some digging and find out what it was actually about. Apparently I was incorrect. Maybe the comics field is just too damn small- but is there a site that has any comics journalism on a regular basis, or is it all commentary and press releases and combinations of the two? I’m seriously asking, not being snarky- maybe there is some comics journalism (even in the loose sense that I’ve attempted here) happening and I’m just not aware of it?

    So, go for it, Alex! Looking forward to it.

  20. Michael Dean wrote an infamous article for TCJ a while back (before tcj.com) in which he said basically this, naming names — he pointed to the Beat, I think newsarama, and CR as places that didn’t do journalism but should — and Tom S. had a blistering response in which he pointed out that he didn’t put himself forward as a journalist.)

    I think all those sites and others (including Journalista) do some reporting. Brigid Alverson for example is a really excellent journalist who has done political reporting, and she certainly tracks down stories on occasion for Robot 6.

    The whole thing has somewhat redounded against Michael in the end, since tcj.com has very much not followed in TCJ’s tradition of investigative reporting (though, again, Dirk does occasionally track down stories at Journalista.)

    I kind of refuse to perpetrate journalism myself on principle — but if you and Alex want to do more along those lines, that’d be great!

  21. >>refuse to perpetrate journalism>>

    Great phrase. :) Care to elaborate?

    I vaguely remember the Michael Dean article- it was a multi-part write up over a few issues, I believe. And, yeah, I’ve seen scattered instances of journalism, but they seem to generally be triggered by press releases, i.e. still very driven by the businesses and corporations that drive the market. Whereas a story like this that no one has a financial investment in? Maybe a little less so.

    I found researching this article a fascinating contrast with research I did two months ago for an attempted article about localization strategies for various North American manga publishers. I had a hell of a time getting any attention from a certain publisher’s publicity department, in the end only getting two very brief emails for my request for information, and no contact with or response to an appeal for contact information for the editor of the series I was attempting to write about.

    Contrast this with my writing about this case- after twenty minutes of phone calls and searching I had been on the phone with the Immigration and Customs Enforcement press liason and the Assistant District Attorney of the State of Idaho! What does it say that they were more accessible to me than the press person and editor of a mid-sized comics publisher? Not really sure what the answer is to that question, but it was a strange experience nonetheless.

  22. It probably means that they’re more used to dealing with press requests, would be my guess.

    The refusing to perpetrate journalism was mostly tongue in cheek. I have done some reporting on occasion, actually, but I don’t enjoy it very much. And as I think this site makes clear, my personal interest in comics news is fairly small — though I’d be happy to have you and Alex do more of that sort of thing if you liked.

  23. Sean Michael Robinson says:Robert- Diana’s whole trial was indeed a bizarre incident. It’s my understanding that he was first singled out because someone read one of his pamphlets and thought there might be some connection to an actual serial killer that was still at large. And from there… who knows what they were thinking?
    The local papers there made no mention of any serial killer connection. Remember, this is the same town that ousted their city manager just because she is transgender. You don’t need to read too much into small town provincialism. But then again, after she was fired another Florida small town hired her for the same position.

  24. Steven-

    I try never to underestimate provincialism, small town or otherwise. I actually lived in Florida for the majority of my life, and found it to be a strange and strangely conservative place.

    Wikipedia has this to say (unsourced, but aligns with my admittedly old memories of Comics Journal articles about Diana)-

    “In 1991, while investigating a Florida murder case, a police officer discovered an issue of Boiled Angel and, desperate for clues, contacted Diana, informed him he was a suspect, and requested a blood sample. The real killer was soon apprehended, and Diana was not pursued.”

  25. The prosecutor repeatedly identified Diana during the trial with Gainesville serial killer Danny Rolling, who was awaiting sentencing at the time. Here’s the money quote from the prosecutor’s closing statement:

    This is how Danny Rolling got started. Step one, you start with the drawings. Step two, you go on to the pictures. Step three is the movies. And step number four, you’re into reality. You’re creating these scenes in reality.

    A good account of what happened is here.

  26. (Hi Sean, I’ve updated this a bit from the earlier email)

    Thank you for shedding light on Steve Kutzner’s case at
    https://hoodedutilitarian.com/2010/11/illustrating-this-article-might-make-me-a-criminal/
    which I’ve only recently known about.
    I just wanted to comment on a couple of points raised in the article that concerns me, as a fan of all artworks including the erotic and fringe.

    With regards to the history of the Protect Act, specifically 1466A, as you probably know, while it has not been directly challenged in the Supreme Court as you say, it turns out that in 2008, as a result of a hearing on Chris Handley’s case, part of 1466A which he was being charged with, was struck down as unconstitutional by the judge:
    http://www.animenewsnetwork.com/news/2008-10-10/iowa-collector-charged-for-allegedly-obscene-manga

    Here is the original version of 1466A:
    ———————————————————————————–
    (1)(A) depicts a minor engaging in sexually explicit conduct;
    -and-
    (B) is obscene;

    -or-

    (2)(A) depicts an image that is, or appears to be, of a minor engaging
    in graphic bestiality, sadistic or masochistic abuse, or sexual
    intercourse, including genital-genital, oral-genital, anal-genital, or
    oral-anal, whether between persons of the same or opposite sex;
    -and-
    (B) lacks serious literary, artistic, political, or scientific value;
    ———————————————————————————–

    (with my emphasis on the boolean relationships for clarity)

    In this case, Part 2 (2a and 2b) was struck down entirely leaving us with only the current 1a and 1b terms. It is interesting to note that with section 2 removed, merely having sexually explicit fictional work depicting minors, even if prurient, is not enough to make the charge stick. It would have immediately criminalized a large portion of independent erotic artworks, like you mentoned with Harry Potter fan art, or with any fictional work involving what ‘appears’ to be teenagers. Essentially having 2a and 2b was an attempt to revive the original 1996 Act. This now leaves us with the current version of 1466A which rests on a obscenity charge.

    Interestingly sections 2a and 2b that were struck down here is similar to first requirement of the Miller test and the same as its third requirement: i.e. speech that is prurient and that lacks merit. This would seem to suggest that the Miller test is “constitutionally infirm” and thus obscenity criminalization is as well. However given the recalcitrance towards efforts in trying to challenge the criminalization of obscenity at the Supreme Court level, particularly after Miller, we would have to expect it to remain despite the contradiction. (..although I think they try to get around that in [1] below) Even if the Miller test had parts one and three removed, or obscenity was redefined in the same manner rather than be decriminalized entirely, it wouldn’t matter much in practice since only the second part of the Miller test is effectively used as a basis for judgement: i.e. is it offensive.

    And yet, this is exactly what the First Amendment is for. In a letter discussing what is now known as the establishment clause of the First Amendment, Thomas Jefferson wrote: “.. that the legislative powers of government reach actions only, and not opinions,” In fact, the same rationale and philosophy also made him unpopular among many of his more conservative peers and certain areas actually; and Thomas Paine who shared the same views and was more open about them, came to be despised by most of the general population in his time! Issues of free speech, like most unpopular contentious issues involving individual rights, always brings to mind what James Madison and John Stuart Mill saw as “tyranny of the majority”. I think we’ve come quite away from those political ideals with the ramifications of Miller v. California — which should have really been solely about being sent unsolicited material rather than obscenity — to essentially subvert the First Amendment.

    I also find the discrepancy of how only sexual matters can be judged legally obscene (from Miller’s second part) quite curious and something I don’t think many people realize; how a work, no matter how violent or gruesome or seemingly obscene, will never get you behind bars on its own or its distribution if it does not depict anything sexual. I’m sure there are volumes of sociological papers exploring why that’s so in American society :)

    In contrast perhaps, is Ben Franklin’s letter, “Advice to a Friend on Choosing a Mistress” and how it has been used in (unsuccessful) attempts to try to overturn obscenity laws citing its relatively licentious nature:
    http://en.wikipedia.org/wiki/Advice_to_a_Friend_on_Choosing_a_Mistress
    Justice William O. Douglas states:
    “The First Amendment was the product of a robust, not a prudish, age… This was the age when Benjamin Franklin wrote his ‘Advice to a Young Man on Choosing a Mistress’ and ‘A Letter to the Royal Academy at Brussels'[2]. When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography… The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy – the predecessors of our present obscenity laws – had yet to come upon the stage.”
    ([2] a letter about farting)

    Indeed with prostitution, which Franklin briefly refers to in his letter, and all narcotics legalized (we had a healthy hemp industry; not that I advocate anything here, simply its decriminalization), it was of a time less prudish than what came after; with tensions from conservative factions rising, from the onset of the Second Awakening and Revival period, prompted famous abolitionist Lysander Spooner to write a treatise on vices:
    http://www.lysanderspooner.org/VicesAreNotCrimes.htm
    His views are echoed by John Stuart Mill’s On Liberty, which I think provides some more sociological insight.

    Coming back to 1466A, what’s sadly ironic about part 1a is that depictions based on appearance is never used as a basis for a criminal charge in live fictional work! (Of course how you actually determine if drawn fictional characters are under 18 is another idiotic issue) I have not heard of a case where the Protect Act/1466A was applied to live porn but have about cases where charges or investigations of child porn were dropped whenever the ages were confirmed.

    I agree with Eric Chase’s (Handley’s lawyer) commentary
    http://www.animenewsnetwork.com/editorial/2010-03-02/7
    that inevitably there’s little recourse except to plead guilty, unless you can find a sympathetic judge or jury (fat chance) and work out some kind of deal, particularly when being found guilty by jury can bring even harsher penalties like being classified as a sex offender! Chase also discusses difference between the obscenity charge under 1466A and outside of it in that editorial btw.

    With regards to your link for “dealer in Japanese import periodicals”
    http://io9.com/5272107/manga-collection-ruled-child-pornography-by-us-court
    discussing Handley’s case, it’s unfortunate that they used a very misleading, if not outright false headline (‘ Manga Collection Ruled “Child Pornography” By US Court ‘) even when they did mention that there was no actual charge of child porn, similar to the treatment of Kutzner’s case in other reports. Sadly that does reflect most people’s reaction, and some of their sentiment to treat it as such, particularly by zealoted prosecutors. Even the official Idaho Attorney’s Office press release was unclear and IMO biased in what it wanted to convey. A big kudos to you for being the *only* person to actually dig through the case.

    [1] Lastly, the way the Miller test is applied and a way I think, in my non-lawyer opinion, it is used to “bypass” First Amendment issues by NOT actually banning the work in question. Instead, obscenity charges allows for criminalization of the receipt or distribution of speech across state lines based purely upon a so-called “community’s” judgment at the time, by a particular jury or judge (who may all decide differently), in a particular instance.

    With obscenity cases and thus 1466A, after part 2 was struck down as unconstitutional, it is possible to have two cases of the _exact same work_ with two DIFFERENT results: one judge or jury finds it obscene, the other does not. Neither would preclude the other, and neither makes legal implication as to the work in question itself. i.e. there is no ruling that states you can draw A,B,C but cannot draw X,Y,Z

    That usually is not made clear by most reporters nor DAs and not well understood by most casual observers, usually leading to confusion and FUD IMHO. For example, you can still find the same Simpsons images (4chan, many sites) since they were not made illegal per se, and likewise for the same obscenity cases prior to Kutzner’s, none of those works in question were actually banned:
    – Mike Diana’s own Boiled Angel comic
    – Jesus Castillo – who was also convicted of obscenity by a jury for selling Demon Beast Invasion manga. The anime and manga is still available right now on Amazon, eBay, and many other places.

    BTW Castillo’s conviction came *despite* the good evidence of against Miller’s test and expert testimony, despite the fact that although it is certainly erotic and contains disturbing scenes, constitutes a minority of the entire work; despite a complete lack of evidence or testimony whatsoever countering Castillo’s expert witness testimony refuting Miller’s requirements, the Texan jury still decided on a conviction and his subsequent appeals have always been denied. Even in Diana’s case, I believe a better lawyer and all attempts countering Miller test would’ve been futile.

    This is why the obscenity (and 1466A) law is so dangerous: you’re life is complete control of strangers whims. You NEVER know ahead of time if what you have will send you to jail, bacause even if it did in your case, your neighbor might actually better luck and be innocent of the exact same charge you were faced with for the exact same drawings.(a judge might throw it out, or jury might decide otherwise)

  27. Np-

    Thanks for your viewpoint, and your thorough responses to the article. I agree with almost all you’ve written here, and wish I had included much of it in the article :) I had completely forgotten about the Texas conviction- you can’t get a much clearer demonstration of the capricious nature of the Miller Test.

    >>>This is why the obscenity (and 1466A) law is so dangerous: you’re life is complete control of strangers whims. You NEVER know ahead of time if what you have will send you to jail>>>

    And thank you for hammering this point home.

  28. Prosecutor Jim Peters has the following to say in response to the article. (Thanks to him for allowing me to quote from his email.)

    “You lamented that the Supreme Court hadn’t taken up the issue. Actually, they just had a case that challenged the obscenity statute and let the decision of the Fourth Circuit stand. It was a case of a Virginia man named Dwight Whorley, who went to trial and was convicted of downloading 20 obscene Japanese anime cartoons, in violation of 18 U.S .C. § 1466(a)(1), and 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). He was convicted and sentenced to 240 months imprisonment. The reason for the long sentence was Whorley was on supervised release, having been convicted in 1999 of receiving child pornography. Here’s the cite: United States v. Whorley, 550 F.3d 326, 330 (4th Cir.) cert. denied 130 S.Ct. 1052 (2010).

    As for the person who commented that “bad compromises make bad law,” their point is well-taken. There is a good argument that the possession statute would not withstand constitutional scrutiny. But, Kutzner’s case, though a compromise, will not make any law because Kutzner waived his right to appeal, and an unpublished guilty plea has no precedential value. What happened in his case is the law of that case, but it cannot be cited as authority so really, no “bad law” was made. Maybe some would think it was a bad plea bargain, but that’s another issue.

    As for the compromise – allowing Kutzner to plead to the lesser-included offense of possession rather than charging him with receiving the images in interstate commerce provided him with significant benefits. As you pointed out, by accepting the plea bargain he avoided the 5-year mandatory minimum sentence that Congress mandated for those who receive obscene visual representations of the sexual abuse of children in interstate commerce. The plea agreement lays out how that charge was supported by the facts. And, by pleading guilty to the lesser offense Kutzner reduced his sentencing range under the United States Sentencing Guidelines by at least four levels (tantamount to 1.5 to 2 years). By entering the plea deal, we know the defendant will get some punishment, be required to undergo sex offender treatment, and will lose his teaching license. Both sides give up something and gain something in a plea deal. “

  29. Pingback: Former teacher sentenced for Simpsons porn | Robot 6 @ Comic Book Resources – Covering Comic Book News and Entertainment

  30. The grounds for this prosecution sound so vague. I’m shocked DA’s haven’t gone after their local libraries for stuff like Nabokov’s Lolita, James Joyce’s Ulysses, or A Clockwork Orange.

  31. Considering that these offenses were so deplorable that they wanted Mr. Kutzner to receive treatment for his deviance and he “would enter into a treatment program, “including but not limited to cognitive/behavioral treatment for sexual deviancy.”” I find it very interesting that he is currently serving out his sentence in a federal prison which possesses no such therapies. I also find it interesting that, while this sexual deviant was awaiting the decision of the investigators, he was such a danger to society that he was completely unmonitored for over a year! Knowing Steve personally, I also find it “interesting” that he was told that, were he not a teacher, this case would have never been pursued. In the end, his life is ruined, his story has been completely misrepresented by the media, and he is taking up space in a federal prison which would be better used on a real sexual deviant! This is truly a case where “justice” has its blinders on, where they twisted his words which he gave with honest faith in the “system” and for which he, and everyone who knows him, has learned that the police and their cohorts don’t always want the truth, just anything that they can twist into a statement.

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