A man is facing jail over cartoon pictures of Bart Simpson having sex with his sister Lisa and mother Marge. Other images showed Bart having sex with his teacher Mrs Krabappel as well as his best friend Millhouse having sex with his mother.
Andrew Smith, who is a full-time carer for his 87-year-old mother, was found guilty of nine counts of possessing prohibited images of children after 36 sketches, drawings, cartoons and computer-generated images, many showing sexual relationships between
children and older relatives, were found on disks at his home.
All of the images were cartoons, sketches, drawings or CGIs. None were actual photographs.
The jury returned a unanimous guilty verdict after about 40 minutes.
Smith will be sentenced on August 29 at Carlisle Crown Court.
Comment: A Dangerous Path
13th August 2014. From Angelus
t's perfectly normal for me to be shocked and stunned by what I read in the Mail, but this time it was the quotes from the courtroom that left me shocked and wondering what was going on.
The Coroners and Justice Act 2009 (C&JA) is very specific when it comes to the subject of prohibited images of children . These are defined as images that satisfy all the parts of a three part test. So, firstly an image of a child must be pornographic
, which is defined as being of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Secondly, it must depict one or more of a shopping list of body parts or actions
involving said body parts. Thirdly, it must be criminally obscene, or in the words of the Act, grossly offensive, disgusting or otherwise of an obscene character.
Starting with the third test, obscenity, this Act follows the formula first used in the Criminal Justice and Immigration Act 2008. This wording caused quite a debate in Parliament at the time, despite Government assertions that it was simply intended to
bring the definition of obscenity into the 21st century rather than materially change it, and to supposedly make it more compatible with Human Rights legislation which required laws to be objective rather than subjective. During its passage through the
House of Lords, the Lib Dems attempted to amend the Act by replacing this wording with a direct reference to the Obscene Publications Act 1959 (OPA). However, this was successfully rebuffed by the Government when a Minister stated that this amendment
could actually widen the scope of the Act. So, we are left with the clear message from the legislators themselves that obscenity within the meaning of the C&JA is to be interpreted no less stringently than the OPA, and possibly even more
stringently. So, referring to the Crown Prosecution Service's guidelines for the OPA, only things like bestiality, realistic portrayals of rape, torture, mutilation and so on are likely to be considered criminally obscene. An image of two people engaged
in non-abusive sex would certainly not be classed as obscene. Of course, possession of a photograph of a child having sex would certainly (and rightly) be prosecuted, but not because it is obscene as such.
The second test is clear in some parts and not so clear in others, but in the case of an image of an adult having sex with a child there is no doubt that it would be satisfied. The first test though relies in a Crown court on the jury to determine
whether an image was produced for the purposes of sexual arousal and is therefore pornographic , but I fail to see how anyone other than, let's just say, a very special sort of person could think that an image of Simpsons sex could ever be
sexually arousing - almost certainly they were produced as a bad-taste joke. However, we then hear the defence stating in mitigation that the accused did not download the images for sexual gratification , which is not relevant, and may even have
misled jury members into believing that it was the motive of the accused rather than the motive of the original artist that they needed to decide on. The Mail article is admittedly a little unclear about exactly what images were being prosecuted because
it states that the police found 36 images of children having sex but only 9 charges resulted, so it's possible the Simpsons ones may not actually have been involved. But if they were involved then I fail to see how could they could have been found to be
illegal as they were clearly not pornographic within the terms of the Act. And if they were among the 27 images that were reckoned to be legal, or at least having a low probability of achieving a conviction, how is it that they could be mentioned
in court? If someone is being prosecuted for, say, stealing jewellery, how can the fact that they have other jewellery in their home that can't be proven to be stolen be used as part of the case against them? I suppose we shall never know exactly what
the images that resulted in the charges were like. Which of itself is rather Kafkaesque, as modern Human Rights-compatible law is supposed to give people a clear idea of what is legal and what isn't.
One thing that really is clear, though, is that if all of these three test need to be satisfied before the law is broken, that also means by extension that they are independent, as otherwise why would it be necessary to specify anything more than the
most restrictive test of the three? This means that if an image of a child having sex is pornographic (so tests 1 and 2 are satisfied), that cannot mean per se that it is also obscene as obscenity is a separate test. And yet here we have a quote from the
prosecution stating There's nothing proper and sensible and indeed certainly not legal about pornographic images of children . As just explained, this is not automatically true. Perhaps that misleading remark influenced the jury, perhaps not,
again we shall probably never know.
Once again, the whole issue of how dangerous drawings prosecutions are conducted is brought into question. Leaving aside for the moment the possibility that nobody involved in this case - police, prosecution, defence or judge - properly understood
the law involved, the C&JA has claimed another victim. Even if we might find the accused and his ideas repugnant, that should not be relevant in the courtroom as the case should be tried on the facts alone, but it seems to me that he was tried just
as much for those ideas as he was for the images in his possession. A photograph of a child having sex (or arguably, even posing erotically) is a record of the criminal abuse of a vulnerable human being, and as such, creating or possessing such a
photograph is rightly prosecuted. However, a drawing, no matter what it is of, is a record of an idea . To criminalise the transmission of ideas is to start down a dangerous path. As the late John Mortimer QC famously put it in his opening arguments for
the defence at the Oz trial in 1971, the defendants then stood at the boundaries of our freedom to think and draw and write what we please. One of those freedoms has now been lost -- how long will it be before the other two are lost as well?
As a postscript, the final irony is that had the accused lived 60 miles further north he would have had no case to answer, because these images that are so filthy, obscene and very disturbing that possessing them is worthy of up to three years in
prison are perfectly legal in Scotland.
14th August 2014. From Alan
This seems utterly bizarre.
Was the bloke represented by a specialist lawyer? Am I right in thinking that the material must be produced for the purposes of sexual arousal?
I could understand someone getting done under this law -- absurd as it is -- for possessing erotic manga/anime with characters having the extremely youthful features which form part of the artistic convention. But the SIMPSONS???? Is anybody going to get
turned on by totally unrealistic yellow people engaging in sexual congress?
I hope he can mount an appeal.