A criminal defendant is caught in possession of images downloaded from the Internet that appear to be of children in sexually explicit poses. He is indicted under a child pornography statute, and a jury finds him guilty beyond a reasonable doubt of possession of child pornography. In the meantime, the United States Supreme Court holds unconstitutional a federal statute that criminalizes possession of ‘virtual’ child pornography because it abridges the freedom of speech rights of defendants under the First Amendment. In light of this decision, should the defendant’s conviction be reversed because the prosecution failed to prove, as one of its elements, that actual children were used in the creation of the images possessed by the defendant? Or should the determination as to whether actual children were used be left to the trier of fact based on her viewing of the image itself?
The Second District Appellate Court of Illinois was faced with answering the above questions in People v. Normand.1 Ernest Normand was convicted in Ogle County under the Illinois child pornography statute2 of six counts of possession of child pornography.3 Following the United States Supreme Court decision in Ashcroft v. Free Speech Coalition4 in 2002, Normand challenged three of his convictions which were based upon his possession of images downloaded from the Internet.5 Those images apparently portrayed minors in sexually explicit poses.6 He argued that his convictions under those counts should be reversed because the prosecution did not allege or prove at trial that the depictions in his possession were of actual children, an assertion that he derived from the Supreme Court’s decision in Free Speech Coalition.7
In Free Speech Coalition, the Supreme Court invalidated two provisions of the Child Pornography Prevention Act of 1996 (CPPA) on the grounds that they violated the First Amendment guarantee of freedom of speech.8 The provisions in question defined ‘child pornography’ in such a way as to cover "sexually explicit images that appear to depict minors but were produced without using any real children."9 The definition referred to a depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct" or a depiction that "conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."10 Of importance to the Court in Free Speech Coalition, the first definition covered not only actual child pornography, but virtual child pornography as well – "computer-generated images produced without the use of actual children."11 While the Court acknowledged that it had upheld a statute prohibiting child pornography using actual children in New York v. Ferber, even though the images had not risen to the level of obscene under Miller v. California, the Court decided that the underlying reasons for the Ferber decision did not exist in this case.12 The statute in Ferber was constitutional not because it proscribed the possession of images of children engaging in sexually explicit conduct, but because of the way those images were produced.13 "Where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out without regard to any judgment about its content."14
In contrast to the statute addressed by Ferber, CPPA’s prohibition on virtual child pornography does not speak to the concerns accepted by the Court as legitimate in Ferber.15 "CPPA prohibits speech that records no crime and creates no victims by its production."16 Congress determined that while the images involved in virtual child pornography "do not involve, let alone harm, any children in the production process . . . the materials threaten children in other, less direct, ways."17 For instance, the images may be used by pedophiles to convince actual children to take part in sexual activity or may be used to whet their appetites for pornography created using actual children.18 "Under these rationales, harm flows from the content of the images, not from the means of their production."19
While Congress has the power to pass legislation protecting children, if those laws infringe on a basic First Amendment right, the speech affected must fall within one of several categories of unprotected speech for those laws to be constitutional.20 Prior to Free Speech Coalition, recognized categories of unprotected speech included "defamation, incitement, obscenity, and pornography produced with real children."21 The speech prohibited by CPPA, however, did not fall into any of those categories.22 In light of this, in order for the Supreme Court to uphold the statute, it would have to create a new category of unprotected speech for virtual child pornography.23 The Court declined to go that far, deciding that since the prohibitions in CPPA reached beyond the holdings of Ferber and Miller, and abridged speech protected under the First Amendment, the two provisions of CPPA were "overbroad and unconstitutional."24
In coming to this decision, the Court rejected one of the government’s arguments that the provisions could be saved because the statute contained an affirmative defense for nonpossession offenses which allowed the defendant to show that the images "were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children."25 The Court refused to shift the burden to the defendant to prove that his speech was lawful, especially since the defendant faced a felony conviction if he could not meet that burden.26 "Where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence, of the actors."27 While the Supreme Court clearly refused to place the burden on the defendant to prove that the children in the images were not actual children, it did not clearly state that the government was not required to prove that actual children were used in the images. That requirement has been read into the Court’s decision, however, and this is the issue the Second District Court of Illinois faced in People v. Normand.
If the images possessed by Normand were produced through the exploitation of minors, then Normand’s conviction could be upheld under Ferber.28 If the images were merely virtual images with no actual children involved, then Normand’s conviction could be overturned under Free Speech Coalition.29 Thus, the issue of whether the prosecution had the burden of proving that actual children were used in the production of the images possessed by Normand is critical.30 Normand argued that his conviction was based on possession of images that showed what appeared to be children in sexually explicit poses, but no evidence was presented to prove that those images were actual images of children, as opposed to virtual images of children.31 Thus, he argued that as applied to him, in light of Free Speech Coalition, the Illinois child pornography statute was unconstitutional.32 The appellate court rejected his argument, however, determining that Free Speech Coalition did not impose such a burden on the government.33 The court first considered the decisions of several federal circuit courts that had faced the same issue.34 For example, the defendant in United States v. Kimler argued that Free Speech Coalition, "at least implicitly, . . . laid down . . . the absolute requirement that, absent direct evidence of identity, expert testimony is required to prove that the prohibited images are of real, not virtual, children."35 The Tenth Circuit did not read this requirement from Free Speech Coalition, however, and determined instead that the distinction as to what is real and what is virtual should be left in the hands of the trier of fact.36 The Eighth Circuit in United States v. Deaton upheld the defendant’s conviction for possession of child pornography even though the defendant argued that his conviction should be reversed because the prosecution had not proved that actual children were used in the images in his possession.37 The Court noted that they had previously "upheld a jury’s conclusion that real children were depicted even where the images themselves were the only evidence the government presented on the subject."38 The Second District agreed with the Tenth and Eighth Circuits’ interpretation of Free Speech Coalition, determining that the prosecution did not have a heightened burden to prove that the images contained actual children.39 "It is not incumbent upon the State to prove that the image is not something other than it plainly appears to be through some means other than an examination of the image itself."40 The court remarked that in cases of doubt the defendant would be free to introduce his own evidence to disprove the use of actual children in the possessed images.41 The ultimate decision as to the whether the children portrayed in an image were real or virtual, however, would fall to the trier of fact.42 In fact, the court concluded that the language used by the lower court in its decision indicated its determination that actual children were used in the production of the images possessed by the defendant.43 Thus, the court determined that Normand’s rights under the First Amendment were not violated.44
The decision of the Second District Appellate Court in Normand is fully consistent with the Supreme Court’s decision in Free Speech Coalition. As the Supreme Court noted in Free Speech Coalition, "[i]n cases under the CPPA, the evidentiary burden is not trivial."45 While the Court in that case was speaking of the evidentiary burden on the defendant, it is unlikely that the Court meant to impose a stricter burden on the government under the federal act. The Court noted that the defendant would have a difficult time establishing the "identity,
or even the existence" of the children in the images that he possessed.46 Clearly, the government would have an equally difficult time discovering whether actual children were used in the images. In addition, the language of the Illinois statute does not place the burden of proof on the prosecution. The statute makes it a crime to possess a "depiction by computer of any child" engaged in sexual conduct "with knowledge of the nature or content thereof."47 The statute makes no reference to use in the depiction of actual or real children, and thus does not make use of actual children an element of the offense. Thus, in agreeing with the Circuit Courts of Appeals that have faced the issue of whether an increased burden should be placed on the prosecution, the Second District Appellate Court of Illinois remained consistent with the reasoning in Free Speech Coalition and stayed true to the meaning of the Illinois pornography statute.
1 People v. Normand, No. 2-02-0857, 2004 WL 211790 (Ill. App. 2 Dist. Jan. 30, 2004).
2 720 Ill. Comp. Stat. 5/11-20.1 (2002).
3 Normand, 2004 WL 211790, at *1.
4 535 U.S. 234 (2002).
5 Normand, 2004 WL 211790, at *1.
7 Id. at *3.
8 Ashcroft, 535 U.S. at 258.
9 Id. at 239.
10 18 U.S.C. § 2256(8)(B), (D) (2000) (emphases added).
11 Normand, 2004 WL 211790, at *1.
12 Ashcroft, 535 U.S. at 240, 250-51.
13 Id. at 249.
15 Id. at 250.
17 Ashcroft, 535 U.S. at 241.
19 Id. at 242.
20 Id. at 245-46.
21 Id. at 246.
22 Ashcroft, 535 U.S. at 246.
24 Id. at 256, 258.
25 Id. at 255; see 18 U.S.C. § 2252A(c) (2000).
26 Ashcroft, 535 U.S. at 255.
28 Normand, 2004 WL 211790, at *2.
31 Id. at *3.
32 Id. at *2.
33 Normand, 2004 WL 211790, at *4.
34 Id. at *3; see United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003); United States v. Deaton, 328 F.3d 454 (8th Cir. 2003); United States v. Hall, 312 F.3d 1250 (11th Cir. 2002).
35 335 F.3d at 1142.
37 328 F.3d at 455.
39 Normand, 2004 WL 211790, at *4.
44 Normand, 2004 WL 211790, at *4.
45 Ashcroft, 535 U.S. at 255.
47 720 Ill. Comp. Stat. 11-20.1(a)(6).
Charlotte LeClercq is a third-year student at Northern Illinois University College of Law. She is the Research Editor of the Northern Illinois University Law Review and an Associate Justice of the Northern Illinois University Moot Court Society.