Would the penalties for pure gen ai csam be less than actual csam

1. Why the law treats “real” and “virtual” CSAM differently today

Federal CSAM statutes were written to punish production, distribution, and possession of material depicting actual minors and carry mandatory minimums, registry requirements, and long supervision terms; by contrast, wholly AI‑generated imagery historically must be prosecuted under federal child obscenity provisions (18 U.S.C. §1466A) or by state statutes that vary widely, meaning the same conduct can trigger different sentencing frameworks depending on which statute is used ^{[4] [5]}.

2. Current prosecutorial practice and prosecutable conduct

Federal guidance and enforcement bodies assert that realistic computer‑generated images are prosecutable—federal law “prohibits the production, advertisement, transportation, distribution, receipt, sale, access with intent to view, and possession of any CSAM, including realistic computer‑generated images”—and courts and prosecutors have used a mix of obscenity and CSAM statutes to pursue cases where imagery is indistinguishable from real children or where real minors were involved ^{[1] [5]}.

3. Where penalties can end up lighter for pure AI CSAM

Because obscenity law historically focuses on expressive content rather than protection-of-victims frameworks, prosecutions under obscenity statutes can lack sex‑offender registry mandates, certain mandatory minimums, pretrial detention presumptions, and supervised‑release rules that attach to federal CSAM convictions—creating real differences in sentencing severity and collateral consequences for defendants charged with purely AI‑generated material versus material involving a real child ^{[3] [6]}.

4. Rapid legislative changes aiming to equalize punishment

Advocates, think tanks, and recent bills seek to close these gaps: the ENFORCE Act and state statutory updates propose or enact that AI‑created CSAM be treated the same as authentic CSAM—extending presumptions of detention, registry requirements, supervised release, and even removing statutes of limitation—so the current disparity is a policy target rather than an immutable legal reality ^{[3] [7]}.

5. Variation by state and the prosecutorial practicalities

State laws are a patchwork: many states have amended statutes to explicitly criminalize synthetic CSAM, while others use older wording that may only reach “reproduced” images or require proof of a real child, meaning outcomes depend heavily on jurisdiction and prosecutorial choices; ENOUGH ABUSE documents that most states have moved to criminalize AI‑generated CSAM but differences in text create real interpretive gaps ^{[8] [7]}.

6. Constitutional and evidentiary friction points that affect sentencing

First Amendment caselaw and prior rulings leave possession of purely virtual obscene material at constitutional risk in some contexts, complicating blanket approaches and incentivizing prosecutors to pick statutes that survive constitutional review or that produce harsher penalties—this legal uncertainty influences whether a defendant faces the full suite of CSAM penalties or a lesser obscenity sentence ^[4].

7. Bottom line: present inequality but converging pressure toward parity

At present, yes—penalties for pure generative‑AI CSAM can be less severe than for CSAM involving real children because different statutes (obscenity vs. CSAM laws) and uneven state language yield different sentencing and collateral consequences; however, federal guidance, enforcement practice, recent prosecutions of AI cases, and legislative proposals like the ENFORCE Act indicate a clear, bipartisan push to eliminate that disparity by ensuring identical or equivalent penalties for AI‑generated CSAM ^{[1] [3] [9]}.