Legal status of cartoon pornography depicting minors

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

Some analysts have argued whether such cartoon depiction is a "victimless crime".[1][2][3] 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 claim that there is no scientific basis for that connection,[4] 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.[5][6] This is exemplified in a case involving a man, from Virginia who, while arrested after viewing lolicon at a public library computer, asserted that he had quit collecting real child pornography and switched to lolicon.[7]

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, Sweden, the United Kingdom, and the Philippines.[8][9] At the upper edge, this encapsulates pornographic depictions of even seventeen-year olds together, or adults (such as small-breasted women) where the predominant impression conveyed is of a person under the age of 18.

Contents

Australia

Only real 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.[10] Some states have passed local laws banning variations on fictional sexualised depictions of children under the age of 18:

In December 2008, a man from Sydney was convicted with possessing child pornography after sexually explicit pictures of children characters from The Simpsons were found on his computer. The NSW Supreme Court upheld[11] a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people; however the conviction does not extend to other Australian states and was based on solely the pornography laws within NSW. Many have mistaken this as a Federal nation-wide ban which does not exist.[12] Controversy arose over the perceived ban on small breasted women in pornography after a South Australian court established[citation needed] 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. The classification law is again not Federal or nation-wide and regards only South Australia.[13]

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.

Italy

Virtual child pornography is punished with up to a third of the sanctions for real life child pornography. Virtual images are defined as: images, or part of images, produced and modified with software from actual photos of minors, where the quality makes it so that fake situations are manipulated and appear as realistic. Therefore, lolicon, shotacon, and cartoon pornography in general are not included. [14]

Japan

Japan has unique laws regarding child pornography. Prior to the late 1990s, it was legal to sell and distribute actual child pornography. Between 1999 and 2004, Japan tightened its regulation of child pornography, but simple possession remains legal. Despite these tightening regulations, there is still a legal market for child erotica as illustrated by the continued production of junior idol media, erotic manga genres such as lolicon and shotacon, and the appearance of their themes in erotic computer games and doujinshi. UNICEF Japan and other organizations have petitioned Japan to outlaw not only actual child pornography but also cartoon pornography depicting minors,[15] but they have not obliged so far. Japan, along with Russia, are the only two member countries in the G8 that have not outlawed the simple possession of child pornography.[16] On March, 19, 2010, the Tokyo Metropolitan Government originally planned to vote on whether to ban or regulate the sale of lolicon material, but decided to postpone the vote. They later struck down the bill.[citation needed] On August 25, 2011, Japan's Liberal Democratic Party submitted a petition requesting stricter laws on child porn, which included animated child porn.[17][18]

Netherlands

On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" illegal.[19] The laws appear to only outlaw "realistic images representing a minor engaged in a sexually explicit conduct". In January 2011 the law was expanded and non-realistic images are now counted as child pornography.

In a recent case, after viewing the images in question, which were fully drawn at a computer, the court opined that the virtual child pornography images not in the sense of criminal law.[clarification needed] "All images can be termed as (pornographic) (three dimensional) cartoons, animations, or drawings. The court concludes that the average viewer is immediately obvious that the event is not real and that the images are manipulated images and not realistic."[clarification needed]

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.[20]

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.[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 would include any artificially produced material, for example, written text, drawn images, animation, manipulated images, an adult model with childish clothes/toys/surroundings.[23] This law can be used against lolicon but it hasn't been tried in that aspect yet.

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.'[24] 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, even if they are drawings.[25] A “child” is defined as a “person” who is either under the age of 18 or who hasn't passed puberty.[26]

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.[27][28] This was appealed, and has been taken to the Court of Appeal.[29][30] 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.[31] The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced.[32][33][34] It was immediately further appealed to the Supreme Court.[35] 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,[36] and the Supreme Court decided to do so.[37] 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.[38]

United Kingdom

The Coroners and Justice Act of April 2009 (c. 2) creates 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 UK. This Act does 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.[39] 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 has been interpreted to apply to cartoon images, though only where the images are realistic and indistinguishable from photographs.[40] The new law however covers images whether or not they are realistic.

Coaker added[clarification needed] 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.[41] 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.[42][43]

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".[44]

The current law was foreshadowed in May 2008, when the Government announced plans to criminalise all non-realistic sexual images depicting under-18s.[45][46] 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.[46]

These plans became part of the Coroners and Justice Act 2009, sections 62–68,[47] and came into force on 6 April 2010.[48] The definition of a "child" in the Act includes 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 makes 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. The law has been condemned by a coalition of graphic artists, publishers and MPs, fearing it will criminalise graphic novels such as Lost Girls and Watchmen.[49]

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".[43] However, the published bill makes no reference to the "deprave and corrupt" test.

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.[citation needed]

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.[citation needed]

The United States Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition ruled that the Child Pornography Prevention Act of 1996 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 1st 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.[50] 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.[51] 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.[52]

In Richmond, Virginia, on 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."[53][54][55] He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.[56] It is also important to note that cyber experts for the FBI did locate digital photographs of child porn and he had also sent explicit e-mails to a young girl.[56]

On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction.[57] The court stated that "it is not a required element of any offense under this section that the minor depicted actually exists." Attorneys for Mr. Whorley have said that they will appeal to the Supreme Court.[58][59] 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.[60]

A man from Virginia asserted at his arrest that after viewing lolicon at a public library, he had quit collecting real child pornography and switched to lolicon. During the search of his apartment police seized "folders containing printouts of pornographic pictures of real children." [61]

In October 2008, Neil Gaiman and the Comic Book Legal Defense Fund became involved with the case of Christopher Handley. In 2009, Handley pled guilty to the charges and in February 2010 was sentenced to six months in prison.[62]

In October 2010, a 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.[63][64] In January 2011, Kutzner was sentenced to serve 15 months in federal prison. According to court documents, Kutzner had been downloading, receiving and viewing sexually explicit images of actual children for at least eight years.[65]

In October 2011, a Maine man was arrested for possession of child pornography. He also possessed "anime" images, and is facing state and federal charges according to police.[66][67]

So far Christopher Handley has been the only person found guilty of possession under laws against artificial depictions that was not also under investigation for child pornography involving real minors.[citation needed][dubious ]

See also

References

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