In the Criminal Justice System... The Case of Christopher Handley

Wake me up when we get to part seven: The case of Christopher Handley.

Having the last name of “Handley” is now the least of this guys worries. Most people out there who would read this are probably aware of the news story developing around this guy. In a shaven nut shell this guy is on the hook for some serious felony charges which stem from obscenity laws which live in a constitutional grey area you could hide a GITMO/Abu Ghraib phone tapping kegger in.

Section 504 of the PROTECT Act, which is where the original charges come from, criminalizes the possession and distribution of "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting," that —

(Summary)

Is obscene

or

depicts a minor engaging in sexually explicit conduct; …

lacks serious literary, artistic, political, or scientific value.

Now there is a pile of precedence in terms of getting things like this tossed going back to Larry Flint, but all those were a 1 part equation, where as this case is a 2 parter. Now for the even more concerning part of this, is that the legal precedence on the other side of this one, is very much against our Mr. Handley here. That other side, is of course the “depicts a minor engaging in sexually explicit conduct” wording in this law. Dwight Whorley (man these guys have the worst last names for this kind of thing) is doing hard time right now because he was in possession of drawn images which a federal appeals court decided were illegal. This court upheld his conviction, against the defense that no images found in his possession and part of the case were of actual people -minor or otherwise, and therefore protected speech no different from a written novel which would describe the same imagery. It didn’t work and he lost.

I would like to see this case will take a fast track to the Supreme Court on the back of the CBLDF and throw the constitutional protection of images, the production of which involves no actual people (as opposed to photography). Under the Protect Act, this could be interpreted as being obscene (over the years I am sure someone’s fapped to that), and the only line between whether you do or don’t get prosecuted for having it is who happens to be doing the prosecuting. Herein are the constitutional issues of what is “obscene” and can an artistic representation of something legally considered obscene also therefore be legally obscene due to the subject matter.

This is one of those rare times when the cold sobering hands real life smack fandom issues down to the level we see when held against the perspective of larger issues. It shows how ridiculous the little net dramah fits that happen on some fanfic website or live journal when someone does something or whatever. This obscenity back and forth is nothing new, and its just making the rounds to manga at this point. What’s new to the mix is that this is coming from a source outside the U.S. both in a literal and cultural sense, whereas most of these past instances are domestically produced pieces that are made by the artist with the express purpose of pushing the current boundaries of what is considered “profane” at the time. I think that fact will unfortunately weaken this case.

Now obviously if the search ended up turning up anything bulletproof and uber cut and dry when it comes to obscenity statute violating images, this guy would be either taking a plea right now or at least not having the CBLDF jumping into this one (that might even be out of ACLU territory). But it didn’t turn up, and now a prosecuting attorney has to convince a panel of judges that an artistic rendering of something is as bad as that thing itself… as if a drawing of a kitten in a blender is exactly the same as committing the act itself (actually possessing a video of that actual event in and of itself, with no other connection to that event, would be criminal if an obstruction charge could be made to stick because you "didn't turn it in"). Now these are some disturbing images, and court documents describe some of them as:

depicted graphic bestiality, including sexual intercourse, between human beings and animals such as pigs, monkeys, and others.

I hate "skunk fuckers," but this guy was having this crap delivered to his private home and wasn’t running around a furry convention shoving it in people’s faces. I think the fact that this guy is now feeling more buyer’s remorse than every Zune owner on earth times a million is honestly punishment enough.

Legally, this case might have a few points where a defense could get this guy off the hook without having to set constitutional precedence. There could be 4^th amendment issues regarding the warrant being issues based on something not done 100% by the book by a postal inspector (I watch too much Law & Order). That won’t work but I am sure they’ve gone through the motions… literally.

Startlingly, there are people in the medical profession who would recommend allowing this guy access to these fictitious depictions of what most of us find abhorrent. The fact that this person went very much out of their way to track down a source for this material and then pay to have it shipped half way around the world, simply takes the argument that being exposed to this material causes abhorrent behavior and blows it out of the water. It’s not like he was a normal guy walking down the street and this shit just landed on his head, he went out of his way to look for precisely this. The recommendations of some medical professionals stem from the fact that if a person like this doesn’t get their fix in that harmless manner, they will seek it out in another form… maybe down at your kid’s schoolyard. Think about that. In May of 2005 this concept was thrown into the spotlight when the Attorney General of New York (the hooker-banging Eliot Spitzer of all people) campaigned for the end of Medicaid funding for Viagra prescriptions for sex offenders. There were a number of dissenting opinions.

That dissent was an uphill struggle to say the least, and I must say that what your Mr. Handley’s is facing a similarly uphill struggle (not the least of which is finding someone who would want to be in the same room with a guy who pops a boner to this kind of thing). This case is simply not one where an obscenity law can be challenged because of the vague wording behind it, as that’s already been tossed and now we're dealing with the strictly worded part. This is a case in which a that very unambiguously worded part of a law, namely the one that mentions specific depictions of specific criteria, must be challenged by the defense on the basis of constitutional protection under the 1^st amendment of art or artificially created non-photographic images. The defense is going to have to argue that simply possessing (not producing, that's not what he's on trial for) an artistic representation of something that is illegal, does not that image illegal make, even though this law unequivocally says so. Not too easy to do when those images are things that, should they have been real, would be criminal to produce distribute and possess. The visible domino effect that this can have from the criminalizing of graphic artificial depictions moving to not so graphic or even implied depictions, to the written word, should be enough to convince a count to keep the government in the real world and out of imagination-land.

Welcome to the slippery slope, it’s always been here, you’re just new.

=