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Legal status of fictional pornography depicting minors

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The legal status of cartoon pornography depicting minors is a unique issue which interacts with internet pornography, obscenity laws, and specific laws against child pornography.

Laws have been enacted to criminalize "obscene images of children, no matter how they are made," for inciting abuse.[1] An argument is that obscene fictional images portray children as sex objects, thereby contributing to child sexual abuse. This argument has been disputed by the claim that there is no scientific basis for that connection,[2] and that restricting sexual expression in drawings or animated games and videos might actually increase the rate of sexual crime by eliminating a harmless outlet for desires that could motivate crime.[3] This is exemplified in a case involving a man, from Virginia who, while arrested after viewing lolicon at a public library, asserted that he had quit collecting real child pornography and switched to lolicon.[4]

Currently, countries that have made it illegal to possess (or create/distribute) sexual images of fictional characters who are described as or appear to be under eighteen years old include Canada, South Africa, and Sweden. Legislation is in process to mirror this in the United Kingdom. At the upper edge, this encapsulates pornographic depictions of even seventeen-year olds together, such as Jimmy Kudo/Rachel Moore, Tuxedo Mask/Zoycite, or Sailors Neptune/Uranus.

Australia

All sexualised depictions of children under the age of 16 (or who appear to be under that age) are illegal in Australia, and there is a 'zero-tolerance' policy in place, which covers purely fictional children as well as real children.[5]

In August 2007, an Australian was sentenced to pay an AUD $9,000 fine for attempting to import eight DVDs of Japanese anime found to contain pornographic depictions of children and 14 found to contain depictions of sexual violence. No images of real children were involved. "Customs National Manager Investigations, Richard Janeczko, said that it was important to understand that even cartoons or drawings such as those depicted in anime were prohibited if they contained offensive sexual content."[6]

Also, in December 2008, a New South Wales Supreme Court judge, Justice Michael Adams, ruled to uphold a magistrate's decision that a pornographic cartoon parodying characters on The Simpsons (Bart & Lisa) was child pornography, because "[i]t 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 within the meaning of the Act."[7][8] The plaintiff Alan John McEwan was fined $3000 Aus ($2000 US), which was a leniency as under the law, a maximum penalty of 10 years can be applied for possession of this form of cartoon pornography. Judge Adams explained the law was appropriate because cartoons could "fuel demand for material that does involve the abuse of children". In reference to legal interpretation he commented "A cartoon character might well constitute the depiction of such a person".[9] A BBC reporter summarized the judge's decision: "he decided that the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people".[10]

Canada

Canadian laws addressing this are included in the C-46 amended Canadian Criminal Code passed in 1985. It is described under Part V: Sexual Offences, Public Morals and Disordery Conduct: Offences Tending to Corrupt Morals. Section 163.1 defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", that "shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity", or "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years." The definitive Supreme Court of Canada decision, R. v. Sharpe, interprets the statute to include purely fictional material even when no real children were involved in its production. Chief Justice Beverley McLachlin wrote,

Interpreting "person" in accordance with Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that 'person' in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s. 163.1(1)(a) includes both actual and imaginary human beings.

— Supreme Court of Canada, R. v. Sharpe, Paragraph 38[11]

In October 2005, Canadian courts arrested a 26 year old Edmonton, Alberta man named Gordon Tshun Chin[12] for importing Japanese magazines[13] (manga) depicting explicit child sexuality.[14] Chin's attorney Darcy Depoe claimed Chin did not know it was illegal, that he was naive. Despite this, Chin was sentenced by Judge David Tilley to an eighteen-month conditional sentence, during which he was barred from using the Internet. He was also required to perform 100 hours of community service and receive counseling. This is the first known manga-related child pornography case in Canada. It is also the first known that exclusively prosecutes this offense, not used in conjunction with other laws to increase sentencing.[15][16]

In April 2006, a 21 year old American man from Long Island, New York named Dominic Sousa was sentenced to 30 days in jail for bringing child pornography to Yarmouth, Canada. While he had possession of three videos and three still images of real children, border services agency criminal investigator Blair MacDonald cited the 13,000 cartoon images in his possession and that being anime did not lessen the "prohibitive nature of these goods". He made a statement representing Canada stating "Canada doesn't tolerate the importation of such images".[17]

The current minimum penalty for possession of, or "accessing," child pornography is fourteen days imprisonment.[18]

The current law criminalizes possession of purely fictional material and has been applied in the absence of any images of real children, including to possession of fictional stories with no pictures at all, or vice versa, cartoon pictures without any stories.[19]

Netherlands

On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" as illegal.[20] The laws appear to only outlaw "realistic images representing a minor engaged in a sexually explicit conduct," and hence lolicon is not included.[21]

Second Life (the US based virtual world) is currently being investigated by the public prosecutor. A number of Second Life users engage in sexual ageplay where their online avatars dress, act and look like underage children while engaging in virtual sexual acts. Although there is no Dutch law that legislates against under age depictions of sexual acts for computer generated images, the public prosecutor is investigating this on the basis that these virtual actions may incite child abuse in the real world.[22] So far this has not led to any successful prosecutions.

In March 2008, a 52 year old male was convicted for owning lifelike computer animations of a child performing sexual acts. He has been convicted to a two-year suspended jail sentence, with a ten-year probation period. Prosecution claims that this animation could have been used to entice young children into sexual acts with grown-ups, due to the title and the contents of the animation. The CGI in the clip was life-like, thus falling under the 2002 legislation.[23]

New Zealand

In New Zealand, the Films, Videos, and Publications Classification Act 1993 classifies a publication as "objectionable" if it "promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes." Making, distribution, import, or copying or possession of objectionable material for the purposes of distribution are offences punishable (in the case of an individual) by a fine of up to NZ$10,000 on strict liability, and 10 years in prison if the offence is committed knowingly.[24]

In December 2004, the Office of Film and Literature Classification determined that Puni Puni Poemy - which depicts nude children in sexual situations, though not usually thought of as pornographic by fans - was objectionable under the Act and therefore illegal to publish in New Zealand. A subsequent appeal failed, and the series remains banned.[25]

Norway

In Norway, any images or videos that depict pornography of persons in a childish context (which would include, for example, an adult model with childish clothes/toys/surroundings)[26] are to be considered child pornography. Lolicon is not pictures of persons, and is therefore not counted as child pornography and is legal, in Norway (although this has not been proved by Norwegian court). So far, however, this law has been used to sentence individuals in possession of real child porn.[27]

South Africa

With the promulgation of the "Films and Publications Amendment Bill" in September 2003, a broad range of simulated child pornography became illegal in South Africa. For the purposes of the act, any image or description of a person "real or simulated" who is depicted or described as being under the age of 18 years and engaged in sexual conduct, broadly defined, constitutes 'child pornography.'[28] Under the act, anyone is guilty of an offence punishable by up to 10 years imprisonment if he or she possesses, creates or produces, imports, exports, broadcasts, or in any way takes steps to procure or access child pornography.

Sweden

Any images or videos that depict children in a pornographic context are to be considered child pornography in Sweden, regardless of how realistic or abstract they are.[29]

United Kingdom

Non-photographic images of children have never been illegal to possess in the United Kingdom. On 23 November 2006, Vernon Coaker, the Parliamentary Under-Secretary of State for the Home Office, stated that "Although cartoons depicting child abuse are deeply offensive, they do not in themselves constitute abuse of a child. The 1978 Act is well understood by those who work with it and enforce it and there are substantial arguments against extending its scope to cover cartoons of child pornography."[30] The 1978 Act had been extended in 1994 to cover "pseudo-photographs" - images that appear to be photographs. In 2008 it was further extended to cover tracings, and other works derived from photographs or pseudo-photographs; but not original cartoons.

However Coaker added that the Government was giving close consideration to the issues and options, and on 13 December 2006 UK Home Secretary John Reid announced that the Cabinet was discussing how to ban computer-generated images of child abuse — including cartoons and graphic illustrations of abuse — after pressure from children's charities.[31] The Government published a consultation on 1 April 2007, announcing plans to create a new offence of possessing a computer generated picture, cartoon or drawing with a penalty of three years in prison and an unlimited fine.[32][33] In May 2008, the Government announced plans to criminalise all non-realistic sexual images depicting under-18s.[34][35] Home Secretary John Reid and Parliamentary under Secretary of State for Justice Maria Eagle both specifically cited Lolicon as something they want to ban under this new law.[35] These plans form part of the Coroners and Justice Bill.[36]

The Government claimed that publication or supply of such material may be illegal under the Obscene Publications Act, if a jury would consider it to have a tendency to "deprave and corrupt".[33] However, the published bill makes no reference to the "deprave and corrupt" test.

United States

Wikisource has original text related to this article:

The Supreme Court of the United States decided in 2002, and affirmed in 2004, that previous prohibition of simulated child pornography under the Child Pornography Prevention Act of 1996 was unconstitutional.[37] The majority ruling stated that "the CPPA prohibits 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."

On April 30, 2003, President George W. Bush signed into law the PROTECT Act of 2003 (also dubbed the Amber Alert Law)[38] which again criminalizes all forms of pornography that shows people under the age of 18 regardless of production. The Act introduced 18 U.S.C. § 1466A "Obscene visual representations of the sexual abuse of children", which criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is obscene" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value" (the third test of the Miller Test obscenity determination).

In Richmond, Virginia, on December 2005, Dwight Whorley (represented by Rob Wagner) was convicted[39] under 18 U.S.C. 1466A(a)(1) on twenty counts for receiving "...obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males."[40] using a Virginia Employment Commission computer.[41] At the time of the violations, Whorley was on parole for earlier sex crimes, although the ensuing convictions were independent of his violation of the terms of the parole. He was also convicted of possessing child pornography involving real children.[42] Later, U.S. Attorney's Bulletin, which was requested in November 2006 by the Freedom of Information Act, describes the repercussions of this conviction. It recommends that the precedent set by the Whorley case be used as a basis for future prosecutions for possession of such obscene cartoons.

In April 2006, U.S. citizen Dominic Sousa was jailed for 30 days in Canada for possessing 3 stills/videos of real child pornography and 13,000 lolicon images. His sentence was inflated for lolicon, despite not being judged under U.S. obscenity law. The U.S. government did not attempt to extradite him.

On April 6, 2006, the arrest of one Michael Williams for child pornography was upheld by the United States Court of Appeals for the Eleventh Circuit in United States v. Williams, but the portion of the arrest which pertained to the PROTECT Act was overturned. Specific cartoon depictions of what appears to be a minor engaging in overt sexual intercourse (not merely sexually explicit) were deemed insufficient to actually fulfill the requirements of the PROTECT Act, as the content described in subsections (i) and (ii) of § 2252A(a)(3)(B) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.[43]

The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court heard arguments on the case and overturned the Eleventh Circuit's ruling on vagueness and overbroadness 7-2 with Justices Souter and Ginsberg dissenting. However, the court stressed that virtual child pornography remained under the protection of the First Amendment, except when it was offered or solicited under the mistaken impression that actual children were depicted.[44]

In February 2007, Senator John McCain introduced S.519, which would add a mandatory 10-year prison sentence to anyone who uses the Internet to violate the PROTECT Act.[45]

By October 2008, the Comic Book Legal Defense Fund became involved in a case defending 38 years old Iowan comic collector named Christopher Handley, with Eric Chase of its United Defense Group operating as his legal consultant.[46] Chase argued "there are no actual children. It was all very crude images from a comic book."[47] This is related to obscenity charges involving pornography depicting minors, being applied to a fictional comic book. On this, Chase said "This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws."[48] Charles Brownstein of the CBLDF commented "The government is prosecuting a private collector for the possession of art, in the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the federal government attempting to strip a citizen of his freedom because he owned comic books".[49]

Judge Gritzner was petitioned to drop some of the charges, but instead ruled that 2 parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional. Handley still faces an obscenity charge.[50] The motion was initially heard on June 24, 2008 [51] but was not widely publicized prior to the Fund's involvement. CBLDF leader Neil Gaiman remarked on how this could apply to his work The Doll's House, saying "if you bought that comic, you could be arrested for it? That’s just deeply wrong. Nobody was hurt. The only thing that was hurt were ideas.". He then initiated a perfume sales campaign to raise funds for Handley's legal defense. [52]

In response to appeals on the Whorley case, on December 19, 2008, the 4th U.S. Circuit Court of Appeals, under presiding Judge Paul V. Niemeyer, ruled that the PROTECT Act of 2003 does apply to cartoons of child pornography: stating that "it is not a required element of any offense under this section that the minor depicted actually exists". Attorneys for the defendant (Dwight Whorley) say that they will appeal to the Supreme Court.[53] He was sentenced to 20 years in prison for charges related to the possession of obscene Japanese anime depicting minors.[54] It is easy to misinterpret this as meaning the decision made all cartoon pornography depicting minors illegal, but this is not the case. The decision only affirms that obscenity laws can be applied to cartoons. Judge Roger L. Gregory stated "Whorley could have possessed hard copies of the cartoons and e-mails in his home without any fear of conviction under § 1462 because the materials only portrayed and discussed fictional children." Whorley waived his right to privacy by accessing obscene materials on a public computer.[55]

To summarize, in the United States cartoon pornography involving fictional minors is protected speech, unless offered as if real children were involved, or the material is deemed to be obscene.

See also

References

  1. ^ "President Signs PROTECT Act" (Press release). White House. 2003-04-30. Retrieved 2007-06-11.
  2. ^ In Free Speech Coalition v. Reno (later Ashcroft v. Free Speech Coalition), the court held that "[f]actual studies that establish the link between computer-generated child pornography and the subsequent sexual abuse of children apparently do not yet exist."
  3. ^ "「ホットライン運用ガイドライン案」等に対する意見の募集結果について" (in Japanese). Internet Association Japan. 2006-05-31. Retrieved 2008-01-10.
  4. ^ Mike Allen (2006-10-07). "Man will serve 10 months for child porn". The Roanoke Times. Retrieved 2008-01-07.
  5. ^ McLelland, Mark. The World of Yaoi: The Internet, Censorship and the Global “Boys’ Love” Fandom Australian Feminist Law Journal, 2005.
  6. ^ Australian Customs Service: Man fined $9,000 for smuggling child pornography. Retrieved August 17, 2007.
  7. ^ McEwen v. Simmons & Anor [2008] NSWSC 1292
  8. ^ Simpsons cartoon rip-off is child porn: judge. Retrieved December 8, 2008.
  9. ^ Aussie convicted over Simpsons sex pics December 8, 2008
  10. ^ BBC Asia-Pacific. Retrieved December 9, 2008.
  11. ^ R. v. Sharpe (26 January 2001). Retrieved February 20, 2006.
  12. ^ Dear Edmonton Journal by Chris Macdonald of AnimeNewsNetwork
  13. ^ Conviction for child toon porn - May be a first for Canadian courts by Tony Blais, Court Bureau, Edmonton Sun
  14. ^ Canadian Arrested for Importing Loli-porn Manga (March 4, 2005, Anime News Network). Retrieved June 23, 2008.
  15. ^ Canadian Sentenced over Loli-Porn Manga (October 20, 2005, Anime News Network). Retrieved January 20, 2006.
  16. ^ Canadian Convicted of Possessing Hentai Kiddie Porn by Darklady of YNOT
  17. ^ Jail time for man with cartoon child porn (April 4, 2006, CBC News)
  18. ^ "CanLII - Fédéral - R.S.C. 1985, c. C-46 - Section 163.1". Canlii.org. Retrieved 2008-11-03.
  19. ^ R. v. Beattie (8 April 2005). Retrieved March 12, 2007.
  20. ^ Justitie[dead link] (1 October 2002). Retrieved January 20, 2006.
  21. ^ Draft Convention on Cyber-crime (25 April 2000). Retrieved January 20, 2006.
  22. ^ "Reuters.com". Ca.today.reuters.com. Retrieved 2008-10-27.
  23. ^ "AD.nl - Binnenland - Virtueel filmpje geldt ook als porno". Ad.nl. Retrieved 2008-09-14.
  24. ^ Films, Videos, and Publications Classification Act 1993. Retrieved August 23, 2007.
  25. ^ Puni Puni Poemy: Banned in New Zealand. Retrieved August 23, 2007.
  26. ^ Template:No icon Lovdata - Straffeloven, 19. kapittel, Seksualforbrytelser, § 204a
  27. ^ Template:No icon Lovdata - Straffeloven, 19. kapittel, Seksualforbrytelser, § 204 - "Pornoloven" ("The porn law")
  28. ^ "Films and Publications Amendment Bill of 2003 (104kb pdf file)" (PDF). Retrieved 2006-01-14.
  29. ^ Template:Sv icon Frågor och svar om sexuella övergrepp mot barn
  30. ^ "House of Commons Hansard Written Answers for 23 November 2006". Retrieved 2006-12-06.
  31. ^ "Ban urged on child abuse images". BBC News. 2006-12-13. Retrieved 2007-02-12.
  32. ^ "Plan to tighten child abuse law". BBC News. 2007-04-02. Retrieved 2007-05-28.
  33. ^ a b "Consultation on the possession of non-photographic visual depictions of child sexual abuse". Home Office. 2007-04-02. Retrieved 2007-11-23.
  34. ^ "New proposals will make all obscene images of children illegal - Ministry of Justice". Justice.gov.uk. 28 May 2008. Retrieved 2008-10-27.
  35. ^ a b "UK to outlaw cartoons of child sexual abuse". The Register. 2008-05-28. Retrieved 2008-11-30.
  36. ^ "Possession of prohibited images of children". Coroners and Justice Bill. UK Parliament. 2009-01-14. Retrieved 2009-02-15.
  37. ^ "Ashcroft v. Free Speech Coalition". Retrieved 2006-01-12.
  38. ^ "Bush signs child protection bill". Retrieved 2003-05-01.
  39. ^ "Richmond man first convicted under expanded child-porn law". Retrieved 2006-01-12.[dead link]
  40. ^ Flannery, Sara E. (2006). "Prosecuting Obscene Representations of the Sexual Abuse of Children" (PDF). Internet Pornography and Child Exploitation. United States Department of Justice. p. 50. Retrieved 2007-02-12. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)
  41. ^ 20 Years for Loli Manga
  42. ^ "Virginia Man Sentenced in Landmark Obscenity Case". Federal Bureau of Investigation. Retrieved 2006-09-15. (March 10, 2006)
  43. ^ "United States v. Williams" (PDF). Retrieved 2007-02-12.
  44. ^ "Decision in US v. Williams" (PDF). Retrieved 2008-05-19.
  45. ^ CNET News.com, Senator to propose surveillance of illegal images
  46. ^ CBLDF to Serve as Special Consultant in PROTECT Act Manga Case, published by AnimeNewsNetwork on October 9, 2008
  47. ^ Lawyer Indicates Manga in Iowa Obscenity Case are Yaoi, published by AnimeNewsNetwork on November 24, 2008
  48. ^ American Faces 20 Years Over Loli Manga by Artefact of Sankaku Complex.
  49. ^ CBLDF in Manga Obscenity Case, Assisting Defense of Collector by ICV2, October 10, 2008
  50. ^ Iowa Collector Charged for Allegedly Obscene Manga from AnimeNewsNetwork on October 10, 2008
  51. ^ Court transcript from IASD.USCourts.gov (converted from PDF to HTML by Google)
  52. ^ Neil Gaiman On The ‘Obscenity’ Of Manga Collector Christopher Handley’s Trial by Jennifer Vineyard of MTV Splashpage, November 24, 2008
  53. ^ Court of Appeals Affirms Cartoons of Child Porn Are Illegal - December 19, 2008 Fox News, retrieved Jan 4, 2009
  54. ^ Child-porn cartoon conviction upheld - Federal appeals panel rules porn is porn even if it's drawn - Dec 20, 2008 MSNBC, retrieved Jan 4, 2009
  55. ^ Text of 4th circuit court of appeals decision on United States v. Whorley
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