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I was told since a friend of mine has an anthromorphic furry cub drawing, they will be charged with possession of child pornography. but it’s a drawing and not an actual child, so I’m confused…. Is cub art really pedophilic? (United States)

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It depends

In the

"Pedophilia" is not a legal term for the prohibited content. The relevant legal term is "child pornography"

The US DOJ offers a useful "Citizen's Guide To U.S. Federal Law On Child Pornography" which mentions key federal laws on the topic, including:

18 USC §2251

18 USC §2251 (Sexual exploitation of children) prohibits having a minor (person under 18) engage in sexual activity "for the purpose of producing any visual depiction of such conduct"

So if a drawing is modeled from an actual child who engaged in sexual activity, it is illegal under 18 USC §2251. That section also makes it illegal for a parent, guardian, or custodian to permit such sexual activity and the making of a depiction of it. It also prohibits the advertising and distribution of any such depiction. All offenses under 18 USC §2251 involve an actual child at some point.

18 USC §2252

18 USC §2252 (Certain activities relating to material involving the sexual exploitation of minors) makes it a crime when someone

knowingly transports or ships in interstate or foreign commerce ... any visual depiction, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

under certain circumstances, mostly involving intestate or foreign transmission or distribution. The same section also makes it a crime when a person:

knowingly receives, or distributes, any visual depiction... if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct;

So again to be covered under 2252 an actual child must have engaged in sexual conduct at some point, but a drawing modeled on such a child would be covered under this section.

18 USC §2252A

18 USC §2252a (Certain activities relating to material constituting or containing child pornography) makes it a crime if anyone:

knowingly mails, or transports or ships in interstate or foreign commerce ... any child pornography

knowingly receives or distributes any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce ... [or] any material that contains child pornography [that has been similarly mailed shipped or transported]

or who possesses such child porn.

This section does not define "child pornography" but 18 USC §2256 (8) defines it as:

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, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; [or]

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; [or]

(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;

It would appear that under this section an image that "appears to" be a depiction of an actual minor engaged in sexual acts or is advertised as such may count as "child pornography" and thus be criminal. Whether this can apply to a wholly fictional character not based on any real child is not clearly stated in the law. I don't find any reported conviction involving an invented child character under this section.

However in United States v. Hotaling, 599 F. Supp. 2d 306, 310 (N.D.N.Y. 2008) aff ’d, 09-3935 WL 677398 (2011), the US 2nd Circuit Court of Appeals held that an image created by combining the image of the face of an actual child with the body of an adult in a sexual situation was child porn under this section. That case involved computer morphing to in effect paste photos of the heads or faces of children onto the bodies of adults engaged in sex, but a combination done by an artist's skill would presumably face the same ruling, if the child was recognizable.

18 USC §2260

18 USC §2260 makes it a crime if anyone outside the US has a minor engage in sexually explicit activities in order to make a visual depiction of such activities, and imports that depiction into the US, or who participates in the import or attempted import of such a depiction into the US.

18 USC § 1466A

18 USC § 1466A (Obscene visual representations of the sexual abuse of children) makes it a crime when anyone

knowingly produces, distributes, receives, or possesses with intent to distribute, 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 graphic bestiality, sadistic or masochistic abuse, or sexual intercourse ... lacks serious literary, artistic, political, or scientific value.

Simple possession of such a visual depiction is also a crime under this section.

In United States v. Whorley No. 06-4288. (2008) the 4th circuit Court of Appeals wrote:

Counts 1-20 [of the indictment] charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. § 1462.   The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults.  ...

We also reject his arguments that ... cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate § 1466A(a)(1).

...

The clear language of § 1466A(a)(1) and § 1466A(c) is sufficiently broad to prohibit receipt of obscene cartoons ...

The Supreme Court declined to review Whorley Leaving this holding in place.

First Amendment issues

In Miller v. California, 413 U.S. 15 (1973) the US Supreme Court held that obscene content, which it defined by a 3-part test somewhat looser than the previous test in Roth, was not protected by the first amendment. This means that prosecutions under 18 USC § 1466A have no first amendment issues, because only obscene visual depictions are prohibited under that section.

in New York v. Ferber, 458 U.S. 747 (1982) the Court held that child pornography was not protected by the first amendment. However, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) the Court limited this to visual depictions of actual children that are produced by the abuse of such children, and found that depictions of fictional children that are not obscene under Miller are protected by the first amendment.

This means that prosecutions under §2251, §2251a, §2252, §2252a, §2260 and related sections of 18 USC have no first amendment issues, because all of these are limited to the depictions of actual minors. Some of these sections, however, also criminalize possession or distribution of images that "appear to be" minors, or are advertised as being of minors. Prosecutions under those provisions for images that do not in fact depict any actual child and are not obscene might be barred by the US first amendment. I have not found any reported case in which such a claim has been raised and decided, one way or the other.

Conclusion

"Cub art" as described in the question will not be protected under the US first amendment simply because it is a drawing rather than a photograph. A drawing which recognizably represents an actual child engaged in explicit sexual activity will probably trigger prosecution under one or more of §2251, §2251a, §2252, §2252a, or §2260. Even if the child was not actually abused, using the recognizable image of an actual child can be treated, under Hotaling (cited above) as child pornography and therefore criminal.

If the art does not depict any actual child, but the image is found to be obscene under Miller, then a prosecution could be brought under § 1466A. Note that whether a given image is or is not obscene is a matter of fact, ultimately for a jury to decide, based on the Miller standard. As Whorley shows, completely fictional cartoons may be the basis of a successful prosecution under § 1466A.

Anyone reading this answer should be aware that anything that might be considered "child porn" is taken quite seriously by US law enforcement. Penalties for conviction are severe. Even if the materiel is found to be protected by the first amendment, an arrest may lead to significant expense, loss of employment, and other negative consequences.

It should also be noted that a "minor" or "child" under the sections of US law mentioned here means anyone under the age of 18. The age of consent under state law is not relevant. Thus it might be lawful for a person of 16 to engage in sex in some US states, but it will still be criminal to distribute or poses a photo or other image of such an act.

People should also be aware that the law on such matters differs significantly between different countries. Content that US courts have held to be protected by the US first amendment may be criminal to posses, receive, or transmit under the laws of other countries. Penalties are potentially severe.

The question of whether any given image is protected or criminal is not always easy to resolve, and finding out via an arrest and a criminal trial could be a very unpleasant and expensive way to determine this. Consulting a lawyer skilled in such matters might be wise if any content in one's possession is even arguably questionable on such points.

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    Ok, the drawing isn’t based off a human child nor was using a reference from a child. It’s a furry (anthromorphic animal) which do not exist.
    – InkHazel
    Jun 23 '21 at 17:10
  • This will require a First Amendment analysis, as well.
    – bdb484
    Jun 23 '21 at 18:58
  • @bdb484 I have now added a 1st amendment section. It is sufficient in your view? Jun 24 '21 at 17:31
  • @InkHazel Note that I have seen recognizable furry versions of specific people, so such images are possible. Jun 24 '21 at 17:33
  • Looks generally accurate to me. My recollections is that the statute from Ashcroft has been replaced and blessed by SCOTUS in a subsequent case, but I don't think that would change the analysis. It seems like the question is hard to provide any real answer for, as there's no indication that the picture actually depicts anything sexual, aside from the question of whether it constitutes pedophilia.
    – bdb484
    Jun 24 '21 at 19:10

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