In Free for All: Defending Liberty in America Today, Wendy Kaminer describes some of the problems with this:
A ban on virtual child porn relies heavily on the subjective reaction of viewers, which means that speakers are given little notice of precisely what speech is criminalized. When Congress bans sexually explicit material that “appears” to depict minors engaged in sex, you have to ask “appears to whom?” A lot of people over forty have trouble distinguishing nineteen-year-olds from precocious fifteen-year-olds.
These are some of the reasons why the Supreme Court struck down a ban on virtual child pornography back in 2002. Although such bans are not currently an issue, they do point to a larger issue that merits some attention: when people find something to be awful enough, they may not only try to ban it but also anything that remotely looks like or leads to it.
Recently in Illinois a man was convicted as a sex offender and is now required to register as a sex offender, all because he grabbed the arm of a 14-year-old girl. He had to swerve to avoid hitting her when she walked out into traffic and he intended to lecture her — a story which the courts accepted as true. However, technically he engaged in “unlawful restraint” of a minor and that’s a sex offense in Illinois.
Why is it a sex offense? According to the Cook County state’s attorney spokesman Tom Stanton, it’s fair that this man should have to register “because of the proclivity of offenders who restrain children to also commit sex acts or other crimes against them.” Yes, read that again: because people who restrain children are likely to commit sex acts with those children, even a person who restrains a minor for completely different reasons (and reasons which are accepted as true) should have to be treated like a sex offender.
The faulty reasoning here is not unlike that behind attempts to ban virtual child pornography: something it treated as so awful that everything even remotely connected with it begins to be treated like it were the same. Just how far will the concept of “sex offender” be extended? If grabbing an arm can cause a person to be a sex offender, it’s hard to see how or why just about anything else wouldn’t qualify as well.