260
Opinion of O'Connor, J.
regulation of virtual child pornography might be constitutional. I would not prejudge, however, whether a more complete affirmative defense is the only way to narrowly tailor a criminal statute that prohibits the possession and dissemination of virtual child pornography. Thus, I concur in the judgment of the Court.
Justice O'Connor, with whom The Chief Justice and Justice Scalia join as to Part II, concurring in the judgment in part and dissenting in part.
The Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. § 2251 et seq., proscribes the "knowin[g]" reproduction, distribution, sale, reception, or possession of images that fall under the statute's definition of child pornography, § 2252A(a). Possession is punishable by up to 5 years in prison for a first offense, § 2252A(b), and all other transgressions are punishable by up to 15 years in prison for a first offense, § 2252A(a). The CPPA defines child pornography to include "any visual depiction . . . of sexually explicit conduct" where "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct," § 2256(8)(B) (emphasis added), or "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," § 2256(8)(D) (emphasis added). The statute defines "sexually explicit conduct" as "actual or simulated—. . . sexual intercourse . . . ; . . . bestiality; . . . masturbation; . . . sadistic or masochistic abuse; or . . . lascivious exhibition of the genitals or pubic area of any person." § 2256(2).
The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant possesses less than three proscribed images and promptly destroys such images or reports the matter to law enforcement. § 2252A(d). Second, a defendant is not liable for the remaining acts proscribed in § 2252A(a) if the images involved were
Page: Index Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 NextLast modified: October 4, 2007