I recently had a conversation with Sr. Deputy Prosecutor Laura Harmon, who supervises state prosecutions of child pornography crimes for King County, Washington. In light of the rapid developments of A.I. in child pornography cases, I had questions about potential clients’ local jeopardy and called Ms. Harmon. As an example, consider the case of a hypothetical client with a cache of child manipulated A.I. images — images of real children used to create a composite image: both of an identifiable child portrayed in a sexually explicit manner and a “total composite.” Meaning, the pornographic image was not of an actual identifiable child. In this example, the images are obviously criminal content, but what about the severity of this act versus someone who downloaded content from an outside source. Intuitively, I went into my conversation with Laura with the impression that “making” content was more serious than “obtaining” graven content.
Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree is a Class B Felony, a Level VI offense, with a maximum possible punishment of ten years in prison and a $20,000 fine. The presumptive guideline range of one count for a Level VI offense, with no priors, is 12+-14 months in prison.[1] This is for knowingly possessing child pornography, images or videos, stored on a personal computer, cell phone, flash drive, online account, or retained cloud. On the other hand, one count of distribution or “dealing” has a range of 15-20 months as a Level VII offense under the Washington guidelines. Dealing occurs when someone shares child porn with another on an email, online, or through file sharing; the severity increases when multiple files or recipients are involved.[2] Dealing also occurs when someone duplicates a file. See State v. Polk. [3]
A.I. or artificially generated child porn images are still illegal but have varying consequences depending on the facts. In Washington, AI or altered depictions are still considered child pornography if the child is “identifiable.” One example is if someone gave AI a legal picture of a child and it generated sexual content of using that child’s likeness. However, federally, all AI or digitally created child pornography is illegal to possess or send, regardless of the identity of the child or if the child is entirely fictional.
In Washington, the creation of child pornography by a real minor is often prosecuted under the offense of Sexual Exploitation of a Minor,[4] which is a Level IX offense with a range of 31-41 months. Federal charges often accompany production or distribution cases, with significantly more punitive sentences that pale in comparison to the Washington guidelines.
An example of a federal prosecution of someone utilizing A.I. to digitally alter clothed images of minors—actual school classmates of the defendant—is provided on the FBI’s website news blog at this link: Charlotte Child Pornography Case Shows ‘Unsettling’ Reach of AI Imagery — FBI. There, the defendant altered and sexualized images of female classmates taken more than twenty years earlier when they were all minors at the same school. This is a textbook example of how A.I. generated images produce real world victims.
A.I. generated Child Sexual Abuse Material (CSAM) is “flooding” the internet. Included here is a link to a recent New York Time article on this growing problem; one which criminal suspects still consider to be ‘victimless’ or less victimizing than actual ‘hands-on’ conduct.
While Washington has a current child sexual abuse law that now includes A.I. generated or computer edited CSAM, it only covers identifiable persons. It deals more with “revenge” aspect of porn: as only identifiable minors can be the basis for a prosecution and is a gross misdemeanor, not a felony.[5]
Based on this writers’ conversations with prosecutors like Ms. Harmon and fellow defense lawyers, it is likely a 17 year old who sends a A.I. deep fake to harass a former girlfriend will be treated much differently than the 40 year old who creates his own child porn cache from images of known minors.
[1] RCW 9.68A.070 Possession of depictions of minor engaged in sexually explicit conduct.
[2] RCW 9.68A.050 Dealing in depictions of minor engaged in sexually explicit conduct.
[3] A person commits the crime of dealing in the depictions of a minor engaged in sexually explicit conduct in the second degree when he or she knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g). RCW 9.68A.050(2)(a)(i). The State presented sufficient evidence for a jury to conclude that Mr. Polk was the person who scanned and duplicated the photographs onto the computers. Witnesses testified that Mr. Polk was the person who took the pictures. Mr. Polk’s wife testified that the photography was Mr. Polk’s and no one else’s work. Testimony established that Mr. Polk was the person who provided some of the women with copies of their pictures. There was no evidence to suggest that Mr. Polk’s wife or daughter assisted in duplicating any of Mr. Polk’s photographs. As far as computer access, evidence showed that Mr. Polk logged on to more than one computer on the network in his home and was on the computers where the digitized files were found. The jury could infer that Mr. Polk was the person who copied or digitized the photographs onto the computers in his home. State v. Polk, 187 Wn. App. 380, 394, 348 P.3d 1255, 1263 (2015).
[4] RCW 9.68A.040 Sexual exploitation of a minor—Elements of crime—Penalty.
[5] RCW 9.68A.011 Definitions.