In the case of Kevin Jalbert versus the State of Florida, Mr. Jalbert was charged with committing the crime of unlawful possession of child pornography. He filed a motion to dismiss his case in which he argued that the prosecutor had failed to prove that the photos in his case showed actual children (that is, individuals less than 18 years old) rather than computer-generated "virtual" children or adults resembling children.
The appellate court deciding Jalbert’s case agreed with him that in order to convict him of the crime of unlawful possession of child pornography, the prosecutor was required to prove that the photos depicted actual children rather than computer-generated children or adults resembling children.
In support of this position, the appellate court cited to the case of Ashcroft versus Free Speech Coalition in which the United States Supreme Court held the Child Pornography Prevention Act of 1996 to be unconstitutional because it banned a range of sexually-explicit images, sometimes called "virtual child pornography," that appeared to depict minors but were actually produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology.
In striking down this law, the Supreme Court stated that this Act prohibited speech that "records no crime and creates no victims by its production. Virtual child pornography is not intrinsically related to the sexual abuse of children. While the [prosecution] asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts."
Those supporting the Act also argued that pedophiles might use virtual child pornography to seduce children. The Supreme Court rejected this argument stating that "speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."
Although the appellate court deciding Mr. Jalbert’s case agreed with him that the prosecutor had to prove that the photographs depicted actual children, the court nevertheless upheld the trial judge’s decision to deny Jalbert’s motion to dismiss. Why? Because a motion to dismiss is decided solely by a judge, whereas it is up to a jury rather than a judge to decide whether pictures depict actual children versus virtual children. Insofar as that issue is concerned, the jury has the final word.