Bizarre Australian Criminal Cases: The Simpsons Porn Case

There are many bizarre cases that form part of Australian legal history, but perhaps none more vexing when it comes to balancing the often competing considerations of free speech on the one hand, and protecting the innocent on the other, than the 2009 appellate case of McEwen v Simmons & Anor [2008] NSWSC 1292; which is commonly known as ‘The Simpsons Porn Case’.

A cartoonish case

In 2008, Sydney man Alan John McEwen was convicted of possessing child pornography in contravention of section 91H(3) of the Crimes Act 1900 (NSW) and using his computer to access child pornography material contrary to section 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) over material that had a distinct shade of yellow.

The images in McEwen’s possession were not of actual children, but of Bart, Lisa and Maggie, cartoon characters from the hit TV series The Simpsons, engaging in not so family friendly activities with their onscreen parents Homer and Marge.

Whilst certainly off-putting given the characterisation on the show, it was pretty clear that the images were not designed to titillate the lurid imagination but to shock and amuse.

Nevertheless, they did appear to be depict cartoons of children engaging in sexual activity. 

As Justice Michael Adams made rather clear on appeal: 

Sexual acts are depicted as being performed, in particular, by the “children” of the family. The male figures have genitalia which is evidently human, as do the mother and the girl. It was accepted, I think, that it is implied – from the television series – that, insofar as cartoon characters might have ages, the young male is about ten years old, the female about eight years old and a female toddler. Leaving such an implication aside, it would be difficult to assign ages to either the young male or the girl, though the latter appears to me to be pre-pubertal and the former less than eighteen (the Commonwealth offence) and possibly less than sixteen (the State offence).

This was all suitable for the Magistrate who convicted McEwen of both offences, fining him $2000 (for the Commonwealth offence) and $1000 (for the NSW offence) and placing him on a good behaviour bond for two years.

What is a “person”?

McEwan’s conviction was appealed to the NSW Supreme Court on the basis that although the cartoon figures were technically under the age of 18 within the fictional universe of the Simpsons, they were not “persons” in the sense described in the relevant legislation.

Under the NSW Act at the time, “child pornography” was defined as:

…material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years engaging in sexual activity, in a sexual context or as a victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Similarly, under the Federal Code at the time, “child pornography” was defined as:

…material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or is in the presence of a person, who is engaged in, or appears to be engaged in, a sexual pose or sexual activity; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive …”

In the relevant definition sections under both the Act and the Code, a “person” is defined as “a natural person” without much further guidance.

McEwan’s counsel argued that the depiction of fictional cartoon characters so plainly and deliberately departed from the human form that they cannot be “persons” within the statutory definition.

The decision

Whilst it is common sense that cartoon characters are not “persons” the law has a way of twisting common sense on its head.

Justice Adams noted that the offences were not limited to a “person” exclusively, but also to “depictions” of persons and, in the case of the Code, a “representation of a person”.

He noted the Western Australia case of Holland v The Queen, where a man was convicted of prohibited import offences under the Customs Act 1901 (Cth) for importing a copy of the book “Street Boy Dreams”.

Sweet Boy Dreams centres on an adult aged about 35 and his relationship with various teenage boys aged between 13-14 years of age. It was submitted in that case that a “person” under the law meant a real person and not a fictitious person or a person who was a character in literary work. However, Chief Justice Malcolm noted in the case that:

In my opinion, it is a notorious fact of which judicial notice could be taken that the word ‘person’ as it is commonly used in everyday speech and language, extends to both real and fictitious persons. As the New Shorter Oxford Dictionary itself makes clear, the word ‘person’ includes a person who plays a part in a drama or a character in a play or story. It is clear that the word extends to real, imaginary and fictitious persons.

Justice Adams, although making important distinctions between fictional works and images, took on board that the definition of “person” should extend to both real and imaginary characters.

He went on to state that both the Act and the Code had in mind not merely the depictions of actual children but also the deterrence of the production of other material – including cartoons – that could fuel demand for the abuse of children.

As such depicting “a person” includes both depictions of actual persons and characters that are entirely fictional.

Justice Adams did acknowledge that a threshold does exist in which a cartoon can be said to no longer depict a “person”, because it no longer resembles a human being. However, four fingers and yellow skin don’t cut it. He noted that:

It seems to me that whether a person is indeed depicted by any particular semblance or simulacrum of a human being must be a question of fact and degree. Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person – though vide the Commonwealth offence – it might well depict a representation of a person. No bright line of inclusion or exclusion can be sensibly described…It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects, may nevertheless be the depiction of a person…

In the end, the court found that “persons” for the purposes of both State and Federal child pornography laws extends to both actual persons and cartoon character depicting actual persons.

McEwan’s original conviction was upheld and the appeal dismissed.