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By Jess C Scott, 11 Mar 2011

Child Porn/Underage Sex in the Written Word

wicked lovely

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["The Law" in this article refers to "U.S. Law," since that's where I am, at the time of writing this]

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The March 2011 re-issue of Wicked Lovely (and the other two anthologies which include this incest-themed short story of mine) establishes the characters' ages to be "18 or older" (I made some very slight tweaks to the original story!).

Child pornography laws regarding images and visuals are pretty straight-forward:

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. (As defined in 18 U.S.C. 2256)

As attorney Timothy Sandefur writes, "the reason it’s illegal to manufacture child porn is obvious: it violates the rights of children; they are too young to consent to sexual acts, and therefore it violates their rights to make them do things of that sort."

Why are there no specific laws regarding child pornography in literature / textual form?

I've tweaked Wicked Lovely so that it can now (as of 13 March 2011 -- though it may take a bit more time for retailers' servers to update the digital files) be clearly established that the characters are "of legal age" throughout Wicked Lovely (in the original story, Julie was 17 during "the deed").

I've spent several hours reading/studying the federal laws regarding "child pornography" and "obscenity." I've taken the trouble to do this, precisely so that I can avoid being arrested by authorities for "distributing child pornography."

But in the first place, I was never selling, marketing this story, or advertising/promoting it as "child pornography." How could I be accused of distributing child porn when there's no clear legal definition for me to know what counts as child porn in literature in the first place?

In fact, I did do some research on the law (at the time of the original publication of Wicked Lovely, back in 2009), and because I did not see anything referring to "literature / the written word," I took "child pornography" to mean:

"any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct." (As defined in 18 U.S.C. 2256)

Yet, Karen Fletcher of Donora, Pennsylvania, was sentenced in 2008 under a plea bargain for having written fictional stories about sex with children (more info on the case here and here).

My (rational) question is: how can underage sex in literature be considered "child pornography," when there are NO CLEAR LAWS regarding child pornography in literature? If it is, indeed, criminal to depict underage sex in the written form, why is this not clearly laid out in the law?

As Timothy Sandefur writes, "there are plenty of. . .perfectly legitimate works of literature that would qualify and would be subject to censorship under the theory that written descriptions of minors having sex or being abused qualify as child porn."

With the perpetual vagueness of the law when it comes to subjects of a sexual nature, I wouldn't be surprised if I am one day charged with possession of child pornography (with regards to the copies of Lolita, Delta of Venus, and Fanny Hill which I own -- all of which involve minors).

Obscenity laws are vague enough to give prosecutors power to do whatever they want -- isn't THIS obscene ("disgusting; repellent")? But of course, it's not "legally obscene" to abuse power, since those in power are free to write whatever laws they want and potentially use it to further their personal agenda (which you can also observe, on a non-federal level, with the admins on Wikipedia). Of course, not every single person in office is corrupted, but who knows how many prosecutors have political aspirations and are willing to ride on a case into office?

Censorship instills a climate of fear, and threatens the integrity of artistic works (which includes erotic literature), which is why people are against censorship (that + suppression of information), which is what my next article will be about :)

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