Virginia Lawyers Weekly

Child pornography is illegal even if the pictures are drawn, a federal appeals panel said in affirming the first conviction under a 2003 federal law against such cartoons.

Dwight Whorley is serving 20 years in prison, convicted in 2005 of using a public computer for jobseekers at the Virginia Employment Commission to receive 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men. Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received e-mails graphically describing parents sexually molesting their children.

A three-judge panel of the 4th U.S. Circuit Court of Appeals on Dec. 18 upheld his conviction.

Among the arguments in his appeal was that cartoons are protected under the constitutional free speech rights because they do not depict real children. He also claimed the statute is unconstitutional because text-only e-mails cannot be obscene.

Two judges rejected those arguments. A third agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.

Judge Paul V. Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that “it is not a required element of any offense under this section that the minor depicted actually exists.”

Rob Wagner, the federal public defender who represented Whorley, said he was “very disappointed” with the ruling and that he would ask the full appeals court to reconsider. If that fails, Wagner said he will petition the U.S. Supreme Court to review the case.

A Virginia jury convicted Whorley of 74 counts including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene e-mails describing the sexual abuse of children.

Whorley, 55, is serving his sentence at the Gilmer Federal Correction Institution in Glenville, W.Va.

He previously was sentenced to 46 months in prison for a 1999 child pornography conviction.

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