Legal status of cartoon pornography depicting minors

The legal status of cartoon pornography depicting minors varies from country to country and concerns simulated pornography and child pornography.

Some analysts have argued whether such cartoon depiction is a "victimless crime".[1][2] Laws have been enacted to criminalize "obscene images of children, no matter how they are made", for inciting abuse. An argument is the claim that obscene fictional images portray children as sex objects, thereby contributing to child sexual abuse. This argument has been disputed by the fact that there is no scientific basis for that connection as of 1999,[3] and that restricting sexual expression in drawings or animated games and videos might actually increase the rate of sexual crime by eliminating an outlet for desires that could motivate crime.[4][5]

Currently, countries that have made it illegal to possess (as well as create and distribute) sexual images of fictional characters who are described as or appear to be under eighteen years old include Australia, Canada, the Philippines, South Africa, South Korea and the United Kingdom.[6][7] At the upper edge, this encapsulates pornographic depictions of even seventeen-year-olds together, or adults where the predominant impression conveyed is of a person under the age of 18 (such as small-breasted women).

Australia

All sexualised depictions of children under the age of 18 (or who appear to be under that age) are illegal in Australia, and there is a "zero-tolerance" policy in place.[8]

In December 2008, a man from Sydney was convicted of possessing child pornography after sexually explicit pictures of children characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[9] Controversy arose over the perceived ban on small-breasted women in pornography after a South Australian court established that if a consenting adult in pornography were "reasonably" deemed to look under the age of consent, then they could be considered depictions of child pornography. Criteria described stated "small breasts" as one of few examples, leading to the outrage. Again, the classification law is not federal or nationwide and only applies to South Australia.[10]

Brazil

While the simple visualization of cartoons depicting sexual acts involving fictional lookalikes of human minors may not be illegal in itself, possession and especially production and/or distribution can be interpreted in courts to be of the same level of actual child pornography, since legislation is vague on the subject, criminalising de facto child pornography created by image manipulations as the Italian legislation, though not excluding cartoon pornography from such scenario (see Articles 241-C and 241-E of the Code of Minors here, in Portuguese, and here, in English).

Canada

Canadian laws addressing child pornography are set out in Part V of the Canadian Criminal Code, dealing with Sexual Offences, Public Morals and Disordery Conduct: Offences Tending to Corrupt Morals. Section 163.1 of the Code, enacted in 1993, 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".[11] 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.

2011 tourist case

In June 2011 a visiting American citizen was arrested in Canada for bringing erotica based on Lyrical Nanoha.[12][13] By October 2011 he was charged with possession and importation of child pornography and faced a minimum of 1 year in prison.[14]

Finland

Producing and distributing pornography which realistically or factually depicts a child is illegal in Finland and punishable by a fine or up to two years imprisonment. Possession of such pornography is punishable by a fine or imprisonment for up to one year. Realistic and factual depiction of a child appearing in sexual acts is defined as it having "been produced in a situation in which a child has actually been the object of sexually offensive conduct and realistic, if it resembles in a misleading manner a picture or a visual recording produced through photography or in another corresponding manner of a situation in which a child is the object of sexually offensive conduct."[15] Purely fantasy-based virtual child pornography remains legal by Finnish law.

Italy

Virtual child pornography is punished with up to a third of the sanctions for real-life child pornography. Virtual images include images, or parts of images, produced and modified with software from actual photos of minors, where the quality makes it so that fake situations are manipulated to appear realistic. Therefore, lolicon, shotacon, and cartoon pornography in general are not included.[16]

Japan

In Japan, pornographic art depicting underage characters (lolicon, shotacon) is legal but remains controversial even within the country. They are commonly found in manga, erotic computer games, and doujinshi.

Netherlands

On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" illegal.[17] The laws appear to only outlaw "Three-dimensional, realistic images representing a minor engaged in a sexually explicit conduct". In January 2011 the law was expanded and non-realistic 3D images are now counted as child pornography.

In a recent case, after viewing the images in question, which were created on a computer, the court opined that the virtual child pornography images did not fall under criminal law. "All images can be termed as (pornographic) (three dimensional) cartoons, animations, or drawings. The court concludes that it is immediately obvious to the average viewer that the event is not real and that the images are manipulated images and not realistic".

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 ten years in prison if the offence is committed knowingly.[18]

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.[19]

In April 2013, Ronald Clark was jailed for possession of anime that depicts sex between elves, pixies, and other fantasy creatures.[20] It was ruled as obscene and he was jailed for three months following the trial.[21] Clark was previously convicted for indecently assaulting a teenage boy and his lawyer noted that ethical issues complicated the case.[21]

Norway

As of 2005, the Norwegian penal act criminalizes any depictions that "sexualize" children, even if it does not actually show sexual acts with children.[22] This could include any artificially produced material, including written text, drawn images, animation, manipulated images, an adult model with childish clothes, toys, or surroundings.[23] This law can be used against lolicon but it has not been tried in that aspect yet.

Poland

According to Polish penalty code (art. 202 §4b) production, distribution, presenting, storing and possession of pornographic content depicting "made or remade" image of minor taking part in any sexual activity is punishable by monetary fine, restriction of liberty, or imprisonment up to two years.[24] The "minor", according to Polish law, is a person under 18 years old.[25] This broad definition of "minor" leads to some criticism,[26] as it is legal to produce pornographic content with minor over age of 15, if not intended for distribution (art. 202 §4).[24]

From 2009 to 2014, there were 10 people found guilty under art. 202 §4b.[27][28]

One of the cases where the discussed article 202 §4b of Polish penalty code was used in court was the case of a painter Krzysztof Kuszej, whose art "with photographic accuracy depicted children' and men's genitalia during intercourse". His pictures implied that the men were priests.[29] The artist argued in court, that his art is a social commentary on subject of pedophilia by Roman Catholic priests, and his artistic measures were adequate for the problem. The court's ruling was "not guilty". The ruling was based on the experts' opinion, that the presenting of pedophilia was not an intent of the artist, and that his works were of critical nature.[30]

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".[31] Under the act, anyone is guilty of an offence punishable by up to ten years imprisonment if he or she possesses, creates, 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, even if they are drawings.[32] A “child” is defined as a “person” who is either under the age of 18 or who has not passed puberty.[33]

These laws have been recorded in the media being put into play in Uppsala: the district court punished a man with a monetary fine and probation for possession of manga-style images.[34][35] This was appealed, and has been taken to the Court of Appeal.[36][37] In court, Judge Fredrik Wersäll stated that a “person” (as in the definition of a “child”) is a human being. The man possessing the illustrations, as well as his lawyer, stated that a comic character is not a person (a comic character is a comic character and nothing else) and that a person does not have cat ears, giant eyes, or a tail and that a person has a nose. Some of the pictures featured illustrations of characters with these unusual body parts. The prosecutor and an expert on child pornography argued that these body parts had no effect and that the comic characters indeed were persons. As examples of what is not a person, the child pornography expert mentioned the Simpsons and Donald Duck.[38] The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced.[39][40][41] It was immediately further appealed to the Supreme Court.[42] While the Prosecutor General agreed with the verdict of the Court of Appeal, he still recommended that the Supreme Court hear the case, to clarify the issue,[43] and the Supreme Court decided to do so.[44] On 15 June 2012, the Supreme Court found him not guilty. They decided that the images were not realistic and could not be mistaken for real children, and that they therefore could not be counted as exceptions to the constitutional law of freedom of speech. One picture was still considered realistic enough to be defined as child pornography according to Swedish law. However, his possession of it was considered defensible through his occupation as a professional expert of Japanese culture, particularly manga.[45]

United Kingdom

The Coroners and Justice Act of April 2009 (c. 2) created a new offence in England and Wales and Northern Ireland of possession of a prohibited image of a child. This act makes cartoon pornography depicting minors illegal in the England, Wales and North Ireland. Since Scotland has its own legal System, the Coroners and Justice Act does not apply, therefore cartoon images representing children are legal. This Act did not replace the 1978 act, extended in 1994, since that covered "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.[46] A prohibited cartoon image is one which involves a minor in situations which are pornographic and "grossly offensive, disgusting or otherwise of an obscene character."

Prior to this, although not explicitly in the statutes, the law was interpreted to apply to cartoon images, though only where the images are realistic and indistinguishable from photographs.[47] The new law however covered images whether or not they are realistic.

History

In 2006 the government was giving close consideration to the issues and options regarding cartoon pornography, according to Vernon Coaker. 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.[48] 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.[49][50]

The children's charity NCH, stated that "this is a welcome announcement which makes a clear statement that drawings or computer-generated images of child abuse are as unacceptable as a photograph". Others stated that the intended law would limit artistic expression, patrol peoples' imaginations, and that it is safer for pedophiles' fantasies "to be enacted in their computers or imaginations [rather] than in reality".[51]

The current law was foreshadowed in May 2008, when the Government announced plans to criminalise all non-realistic sexual images depicting under-18s.[52][53] 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.[53]

These plans became part of the Coroners and Justice Act 2009, sections 62–68,[54] and came into force on 6 April 2010.[55] The definition of a "child" in the Act included depictions of 16- and 17-year-olds who are over the age of consent in the UK, as well as any adults where the "predominant impression conveyed" is of a person under the age of 18. The Act made it illegal to own any picture depicting under-18s participating in sexual activities, or depictions of sexual activity in the presence of someone under 18 years old. The law was condemned by a coalition of graphic artists, publishers, and MPs, who feared it would criminalise graphic novels such as Lost Girls and Watchmen.[56]

The government claimed that publication or supply of such material could be illegal under the Obscene Publications Act, if a jury would consider it to have a tendency to "deprave and corrupt".[50] However, the published bill made no reference to the "deprave and corrupt" test.

On October 2014, Robul Hoque was convicted of possessing up to 400 explicit manga images involving children, in the UK's first prosecution of its kind. He received a 9-month suspended sentence. He was also warned in court that had he been in possession of actual child pornography, he would've been sentenced to jail for a longer term in years.[57]

United States

The legal treatment of simulated child pornography in the United States requires an understanding of the components of that phrase: pornography, child, and simulated. United States law treats these as separate concepts, each worthy of analysis.

In the United States, pornography is considered a form of personal expression, and thus governed by the First Amendment to the Constitution. Pornography is generally protected speech, unless it is obscene, as the Supreme Court of the United States held in 1973 in Miller v. California.

In 2002 the United States Supreme Court ruled in Ashcroft v. Free Speech Coalition that the Child Pornography Prevention Act of 1996 (CPPA) was facially invalid in prohibiting virtual or cartoon child pornography. The basis for the ruling was that the CPPA made unlawful some forms of protected First Amendment speech, banning depictions of sex between children even if not obscene and not involving real child victims. Under New York v. Ferber, if the depiction is of real child abuse or a real child victim, as a result of photographing a live performance, for instance, then it is not protected speech. Under Miller v. California, obscene speech is likewise excluded from First Amendment protection. The CPPA made all virtual child sex depictions illegal without regard to whether the speech was protected or not, so that part of the statute was struck down as facially invalid.

18 USC 1466A

In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003, by then president George W. Bush.[58] The law enacted 18 U.S.C. § 1466A, 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". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value. And mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the internet, or transported across state lines.[59] There is also an affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement.[60]

Criticism of the law has been levied on its wording. Lawrence Stanley noted that, "The moral slippage in the law is palpable in the way it conflates images of actual minors with fictional representations: it refers to "depictions of minors", and, by reference to the other provisions in the law, defines acts engaged in by "persons", but how is a cartoon character a person?"[61] The argument drawing on the definitions of 18 USC § 2256, which defines a minor as "any person under the age of eighteen years".[62]

Parts of the law testing the criminalization of a "visual depiction of any kind" has been tried in the courts. In the Dwight Whorley case, a conviction was upheld on appeal to the Fourth Circuit. The court noted that the minors depicted in obscene material need not exist. The Supreme Court would later refuse to review Whorley. However, in the 2008 Christopher Handley case, a judge overturned parts of the PROTECT Act as unconstitutional while charging Handley with a lesser obscenity charge.[63]

Currently, such depictions are in a legal grey area due to parts of the PROTECT Act being ruled unconstitutional on a federal level; however, laws regulating lolicon and shotacon differs between states; several states have laws that explicitly prohibit cartoon pornography and similar depictions (such as video games in the state of New Jersey), while others usually have only vague laws on such content; in some states, such as California, such depictions specifically do not fall under state child pornography laws,[64] while the state of Utah explicitly bans it.[65]

Due to the fact that the definition of obscenity differs between states, the legality of lolicon and shotacon depends on the community; in several states, there are clauses that state that for something to be deemed obscene, real harm must be done or the child depicted must be someone that exists in real life, while other areas may specifically allow unrealistic "cartoon" depictions but prohibit more "life-like" depictions. Some states may have heavy penalties on such material but only ban depictions of minors under 16 years of age (Arizona and New Jersey), while others may decide to ban it altogether.

2005 Virginia case

In Richmond, Virginia, in December 2005, Dwight Whorley was convicted under 18 U.S.C. 1466A for using a Virginia Employment Commission computer to receive "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males."[66][67][68] On December 18, 2008, the Fourth Circuit Court of Appeals affirmed the conviction, consisting of 20 years imprisonment.[69] The court stated:

Thus, regardless of whether §1466A(a)(1) requires an actual minor, it is nonetheless a valid restriction on obscene speech under Miller, not a restriction on non-obscene pornography of the type permitted by Ferber. We thus find Whorley's as-applied constitutional challenge to §1466A(a)(1) to be without merit.[70]

Attorneys for Mr. Whorley have said that they would appeal to the Supreme Court.[71][72] The request for rehearing was denied on June 15, 2009, and the petition for his case to be reviewed by the Supreme Court was denied on January 11, 2010.[73]

2008 Iowa case

In October 2008, a 38-year-old Iowa comic collector named Christopher Handley was prosecuted for possession of explicit lolicon manga. The judge ruled that two parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional, but Handley still faced an obscenity charge.[63] Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of his lawyer, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images of question.[74]

2010 Idaho case

In October 2010, 33-year-old Idaho man Steven Kutzner entered into a plea agreement concerning images of child characters from the American animated television show The Simpsons engaged in sexual acts.[75][76] The case was originally brought up due to the fact that the German Federal Police identified and reported to U.S. authorities Kutzner's IP address as one where a known file containing actual child pornography was being shared.[77] During the forensic investigation, which uncovered "six hundred and thirty two (632) image files, seventy (70) of which were animated images graphically depicting minors engaging in sex acts," "five-hundred-and-twenty-four (524) pornographic image files, most of which depict what appears to be teenaged females," and "more than eight-thousand files containing images child erotica involving younger children, many of them prepubescent,"[77] Kutzner admitted that he had knowingly received actual child pornography "for at least eight years."

2011 Maine case

In November 2011, Joseph Audette, a 30-year-old computer network administrator from Surry, Maine, was arrested after his username was linked to child pornography sites. A search inside Audette's home did result in photographic child pornography in addition to "anime child pornography".[78] Much unlike previous cases (and likely due to the results of the Handley ruling), the charges for the cartoons specifically were quickly dismissed under Maine law and dropped under federal law.[79]

2012 Missouri case

In October 2012, after being reported August 2011 by his wife, a 36-year-old man named Christian Bee in Monett, Missouri entered a plea bargain to "possession of cartoons depicting child pornography", with the US attorney's office for the Western District of Missouri recommending a 3-year prison sentence without parole. The office in conjunction with the Southwest Missouri Cyber Crimes Task Force argued that the "Incest Comics" on Bee's computer "clearly lack any literary, artistic, political or scientific value." Christian Bee was originally indicted for possession of actual child pornography, but that charge was dropped as part of a plea deal, and was instead charged with possession of the "Incest Comics." [80] [81][82][83]

See also

References

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  2. ↑ Being virtual: who you really are online Davey Winder Page 155
  3. ↑ In Free Speech Coalition v. Reno {513 U.S. 64, 78} (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."
  4. ↑ ""Hotline proposed operational guidelines"「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.
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  10. ↑ "Aussie censor balks at bijou boobs". The Register. 2010-01-28.
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  12. ↑ Thompson, Jason (24 June 2011). "American Faces Minimum 1 Year in Prison for Bringing Manga to Canada On His Laptop". Kotaku.com. Archived from the original on 26 June 2011. One of the items is believed to be a doujinshi, or fan-made comic, of the mainstream manga series Magical Girl Lyrical Nanoha. Another is believed to be a comic in the original Japanese depicting stick-figure like figures in various sexual positions.
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  53. 1 2 "UK to outlaw cartoons of child sexual abuse". The Register. 2008-05-28. Retrieved 2008-11-30.
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  60. ↑ 18 U.S.C. § 1466A(e)
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  62. ↑ "18 USC § 2256". Retrieved 2013-04-23.
  63. 1 2 Iowa Collector Charged for Allegedly Obscene Manga from AnimeNewsNetwork on October 10, 2008
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  70. ↑ "United States v. Whorley, No. 06-4288 (4th Circuit Court of Appeals)" (PDF). December 18, 2008. Retrieved 2013-04-22.
  71. ↑ "Court of Appeals Affirms Cartoons of Child Porn Are Illegal". Fox News. December 19, 2008. Retrieved January 4, 2009.
  72. ↑ "Child-porn cartoon conviction upheld - Federal appeals panel rules porn is porn even if it's drawn". MSNBC. December 20, 2008. Retrieved January 4, 2009.
  73. ↑ "Docket No. 09-6521 - Dwight Edwin Whorley v. United States". Supreme Court of the United States.
  74. ↑ Manga Collection Ruled "Child Pornography" By US Court May 28, 2009
  75. ↑ Former teacher pleads guilty to downloading 'Simpsons' porn Oct 14, 2010
  76. ↑ Steven Kutzner Plea Agreement October 4, 2010
  77. 1 2 https://reason.com/assets/db/12955634459236.pdf
  78. ↑ James Straub (November 15, 2011). "Forum in Deer Isle Focuses on Child Porn Arrest". The Ellsworth American.
  79. ↑ http://www.animenewsnetwork.com/news/2011-11-19/restrictions-lifted-on-maine-man-arrested-for-explicit-anime Restrictions Lifted on Maine Man Arrested for Explicit 'Anime'
  80. ↑ Jacob Sullum (31 January 2013). "Missouri Man Gets 3 Years for Reading 'Incest Comics'". reason.com. Retrieved 19 November 2016.
  81. ↑ "Monett man pleads guilty to possession of child-porn cartoons". Joplin Globe. Retrieved 28 July 2015.
  82. ↑ "Christian Bee admits having child porn cartoons". ksdk.com. Retrieved 28 July 2015.
  83. ↑ Missouri Man Pleads Guilty To Possession of "Cartoon" Child Porn published 19 October 2012 by Johnathan Grey Carter of Escapist Magazine.
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