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.