any representation of information, data, or image, that contains or incorporates in any manner, any film or filmstrip… any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct
Under this statute, animated or computer-generated images would not be prohibited because no child was “personally” engaging or simulating sexual conduct. At least one court has held that in order for the material to be a violation of Section 311.1, “it would appear that a real child must have been used in production and actually engaged in or simulated the sexual conduct depicted.” People v. Gerber, 196 Cal.App.4th 368 (Cal. Ct. App. 2011)
Federal Law
Under federal law, animated child pornography may be an offense. Congress passed the “PROTECT Act” in 2003, which outlaws anything that contains “a visual depiction of any kind, including a drawing, cartoon, sculpture or painting“, that “depicts a minor engaging in sexually explicit conduct and is “obscene” or “depicts an image that is, or appears to be, of a minor engaging in…sexual intercourse…and lacks serious literary, artistic, political, or scientific value.”
The PROTECT Act passed following the striking down by the U.S. Supreme Court of a prior federal law that made simulated child pornography illegal. The Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) claimed the prior law was too broad and violated the First Amendment since it “prohibits speech that records no crime and creates no victims by its production.”
Note that the First Amendment does not offer protection for “obscene” speech. Miller v. California, 413 U.S. 15 (1973). Therefore, images depicting child sex acts that do not involve real children can violate the PROTECT Act if the material is considered “obscene.” In its decision affirming the constitutionality of the Act’s outlawing of obscene virtual child pornography, the Ninth Circuit stated that “the fact that this statute does not require that an actual minor exist… is immaterial because… it is an obscenity statute and not a child pornography statute.” U.S. v. Schales, 546 F.3d 965 (9th Cir. 2008).
So although you may not face federal charges of “child pornography” for the animated or virtual depictions of child sex acts, you may still face federal charges if the material is deemed “obscene”
For Nevada law, see our article, Can an animated video or drawing lead to a Nevada child porn charge?
