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this post was submitted on 06 Sep 2024
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When the "AI artwork" is made for the specific purpose of representing underage children and is indistinguishable from the real thing, that argument is going to get flattened pretty quickly.
Pretty easy to present a couple pages to a jury of kids pictures (not nude) and say "tell us which ones were AI".
Well that’s not how the law works. A jury wouldn’t decide that. They don’t get to say “close enough for fake to be real” because real has a name and fake doesn’t have a name.
The crime is possessing a photo of a thing that happened. A real person was abused. The fake image, like a realistic painting of a fictional event, does not actually involve a person getting hurt.
Let me set up a situation: A person creates a very realistic, but fake, video. They first have the character walk onto the screen in a wireframe. Then, the animation begins to build on texture and now we have a person on a green background. They look real, but we know for sure it’s not real. Then the background enters in the same way. Now the video appears to be real, but… we know it’s not. Just like movie, those are just special effects even if it looks pretty believable.
The crime is a documented event of someone being hurt. If there was a video of a person actually killing a person, that video could be considered evidence of a crime. But if that event was staged as part of a video intended as entertainment, there is no crime and that video isn’t real.
Of course, the topic of child abuse is difficult to talk about. One may make the statement that fake images lead people to the real thing, and that would encourage people to do bad things. Well, they said the same thing about video games—so we would obviously need to apply the same laws to them. Movies and books about crimes could also encourage people to commit crimes, so those need to be banned entirely, and my huge collection of horror movies could put me in jail for life.
The line becomes impossible to draw.
And if that video built to feature a child performing fellario, it would still be child pornography
No, the voiceover will say in an adult voice “I am over 18, I have a fictional disease that makes me look like a younger.”
And now it’s not a child, because “youth” is subjective at this point.
There is very legal real commercial porn of adults engaging in “age play” and “incest,” both which are illegal in reality. Some of those videos would make you think, “how are they actually 18?!”
On the flip side, in most US jurisdictions, incest is illegal and an actual video of two adults engaging in that would be evidence of a crime and they could be prosecuted.
In conclusion (haha), real is illegal and fiction is not.
Don’t get me wrong though, I’m not advocating for specific things to be LEGAL, just arguing that a law making something that is FICTION illegal could be difficult to prove in many circumstances, and lead to many false accusations.
Ok, so when the police use a young-appearing officer to nail somebody who is looking to hook up with what is listed as a 14yo... that's just going to get dropped? Because it seems that's a tactic that's been used often enough and the actual age of the officer matters less than the intent of the perp to engage in sex with a minor.
The argument "I just thought we were role-playing" isn't significantly different from "I totally know this '14yo giving a BJ to old man.mp4' was AI generated and that's just my fetish, not real kids"
Well, that’s somewhat different, and you have a very good example.
They were TOLD the person was underage, and they continued. They had no reason to think that the images were fictional. They were purposefully trying to find REAL images—a crime to possess, distribute, and create.
That is a situation where I would think some kind of legal action could be warranted because a person is asked: “do you want illegal content?” And even though that content is not real, they still engaged.
When you hear those stings where adults are busted trying to meet up with a kid but out pops the cops, that was the adults thinking a REAL thing was going to happen. Obviously the punishment for that is less than if they got caught for doing it, because one is solicitation and one is abuse. However they both get you on a list.
To elaborate, two adults arrange a role play scenario where one adult would meet another adult pretending to be a child where real ages are known, but fictional ages are “illegal.” Thats not a crime. If “fiction” was a crime, then anyone who likes to be called “daddy,” or “mommy” as kinky role play would be in jail because incest is illegal. All those ridiculous “step bro, nooo!” videos would be illegal too!
Finally, all this comes down to intention. Just like murder vs manslaughter. If someone goes to a website to get FICTIONAL content, that’s not a crime. But if they truly think they are getting the real thing, then lines begin to blur and legality could be in question.