Robot 6

Former teacher sentenced for Simpsons porn

Steven Kutzner was sentenced on Tuesday in Boise, Idaho, to 15 months in federal prison, followed by three years of supervised release and mandatory sex offender treatment, for possessing drawings of minors having sex. This case has received a lot of attention on comics blogs because the images mentioned in the plea agreement were all of characters from The Simpsons, and the case is one of several in recent years that have involved drawn images. Child pornography in the form of photographs or movies involves the exploitation of real children, but drawings and animation are more of a thought crime, and a robust discussion has sprung up as to whether it’s something that should be prosecuted.

Sean Michael Robinson, who has been following this case at The Comics Journal, spoke to Kutzner’s attorney D.J. Carr, who said that while he felt the statute under which Kutzner was prosecuted “puts the government in places it shouldn’t be,” this wasn’t the case to test it. The fact is, the 33-year-old Kutzner isn’t some hapless hobbyist being victimized by an overzealous prosecutor. German police and the U.S. Immigration and Customs Enforcement agency had identified Kutzner’s computer as the one that offered a file of actual child pornography for download on a peer-to-peer network, and Kutzner admitted that he had downloaded child pornography and then wiped his computer to remove all traces of it.

This reads a bit like an episode of Law & Order: SVU, in that prosecutors knew Kutzner had downloaded child pornography, but they might not be able to prove it in court, so they charged him with possession of obscene cartoons instead. Kutzner pleaded guilty to avoid the more serious charges. In fact, there is unlikely to ever be a clean test case of laws banning drawings of child obscenity, in the sense that prosecutors would go after someone because of one or two images in an otherwise innocuous collection. The DA in this case, Jim Peters, basically said as much to Robinson in October, when Kutzner pleaded guilty:

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.

Peters said his intent was to get Kutzner, who was a middle-school teacher, away from children and into treatment, as well as to ensure that he serve some time. While free-speech advocates may decry the third reason, the first two are harder to argue with. One can also argue that such selective prosecution is an abuse of the law, but without an unlimited budget, prosecutors will always have to exercise some discretion.

And if you’re wondering why this guy gets 15 months in the slammer while Lost Girls is still being sold openly in stores (and even shelved in public libraries), the answer is that there is a difference between pornography and obscenity, and while you can certainly argue that Lost Girls is pornographic, it would be harder to convince a jury that it’s obscene.

Why the distinction? Eric Chase, the defense attorney for Christopher Handley, who pleaded guilty to possession of obscene images (in this case, manga), explains in yet another Comics Journal article that the Supreme Court determined, in Free Speech Coalition v. Ashcroft, that virtual images of minors having sex could not be prosecuted as child pornography, but they could be prosecuted as obscene. Obscenity is determined by a three-pronged test, called the Miller test, which Chase explains like this:

In short hand, Miller’s three prongs require for conviction a finding that a depiction is 1) sexual in nature (prurient); 2) patently offensive; and 3) lacking in serious literary, artistic, political, or scientific value. The first two prongs are judged by community standards and the third by an objective standard.

Whatever you think of Lost Girls, it’s hard to argue that it fails part three. Chase adds that

What Chris [Handley] did not know was that in direct response to the Supreme Court’s suggestion in Ashcroft, Congress passed 18 USC 1466A, which criminalized as obscenity a laundry list of virtual depictions, including comics, that portray the sexualization of children. The big difference between 1466A and the general obscenity statute is that the former carries a 5 year mandatory minimum sentence for the more serious charge of “receipt” (and is cross-referenced in the Federal Sentencing Guidelines to child pornography so it gets the same presumptive sentence as if it were real child porn). Now, “receipt” is an odd charge that is applicable in nearly every possession case. Simply, you can’t possess something without first receiving it. Yet, receipt carries the 5 year mandatory minimum sentence, while possession does not… Through its choice to create two crimes with vastly different sentences for the same conduct, Congress gave to the prosecution an invaluable tool (quite similar to extortion) in obtaining pleas.

Chase is dead on: That article was written in March 2010; Kutzner pleaded guilty in October to avoid just that charge.

Prosecution of virtual obscenity, even disgusting images, is inimical to the notion of free speech, and the Miller test presents so many problems that it’s hard to imagine that intelligent people ever thought it was a good idea. However, as long as prosecutors have leverage, as they did in this case and in Handley’s, it is likely to go unchallenged. The good news, if there is any, is that the possibility of such challenges, as well as the need to prioritize cases, will probably lead district attorneys to limit prosecution of virtual obscenity cases to instances in which there is plenty of evidence of other crimes as well. It’s not right, but it’s how the world works.

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3 Comments

“It’s not right, but it’s how the world works.” That pretty much sums it up.

Personally, I find this whole thing pretty disgusting and I do think it’s an abuse of power. Regardless of whether this guy deserved it (and since he admitted to downloading actual child porn, it sounds like it did), the fact remains that he was not prosecuted for possession of child pornography but for possession of Simpsons porn – which no matter how you defend it remains absurd and alarming.

They’re declaring war on rule 34.

I don’t quite understand the difference between obscenity and pornography. Both are so vaguely defined they can be applied to basically anything.

No matter how I look at it, it’s wrong to jail a guy (or punish in any other way) for 34 on fic chars like the Simpsons.

If they thought he had real CP they should have just charged him for it, not made up BS charges on laws that shouldn’t exist.

I also object to CP term since pornography traditionally means art of prostitutes. It’s fine to apply it to adult performers like Ron Jeremy because they consent to have sex and are paid to do it. Children aren’t, so you’re calling them a whore if you call sexual media with them in it pornography. This seems wrong to me.

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