Legal status of cartoon pornography depicting minors
Encyclopedia
The legal status of cartoon pornography depicting minor
s is a unique subject which interacts with internet pornography
, simulated 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. 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, 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.
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.
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. 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.
, and there is a 'zero-tolerance' policy in place. 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 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. 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. The classification law is again not Federal or nation-wide and regards only South Australia.
decision, R. v. Sharpe
, interprets the statute to include purely fictional material even when no real children were involved in its production.
, shotacon
, and cartoon pornography
in general are not included.
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, 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. 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.
On August 25, 2011, Japan's Liberal Democratic Party submitted a petition requesting stricter laws on Child Porn, which included animated child porn.
introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" as illegal.
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. "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."
, 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.
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.
. 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.' 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.
, regardless of how realistic or abstract they are. A “child” is defined as a “person” who is either under the age of 18 or who hasn't passed puberty.
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. This was appealed, and has been taken to the Court of Appeal. 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
. The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced. It was immediately further appealed to the Supreme Court. 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, and the Supreme Court has decided to do so.
, since that covered "pseudo-photograph
s"—images that appear to be photographs. In 2008 it was further extended
to cover tracings, and other works derived from photographs or pseudo-photographs. 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. The new law however covers images whether or not they are realistic.
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. 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.
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".
The current law was foreshadowed in May 2008, when the Government announced plans to criminalise all non-realistic sexual images depicting under-18s. 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.
These plans became part of the Coroners and Justice Act 2009
, sections 62–68, and came into force on 6 April 2010. 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 novel
s such as Lost Girls
and Watchmen
.
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". However, the published bill makes no reference to the "deprave and corrupt" test.
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
.
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.
(also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003 by then president
George W. Bush
. The law enacted , 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. 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.
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." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. 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. 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.
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.
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.
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. In January 2011, Kutzner was sentenced to serve 15 months in federal prison.
In October 2011, a Maine man was arrested for possession of "anime" depicting children in sexual situations. He is facing state and federal charges according to police. http://bangordailynews.com/2011/11/18/news/hancock/state-court-lifts-restrictions-on-ex-deer-isle-stonington-school-employee-accused-of-child-porn/ https://bangordailynews.com/2011/10/04/news/hancock/deer-isle-stonington-schools-employee-arrested-on-child-porn-charges/?ref=relatedBox
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
s is a unique subject which interacts with internet pornography
Internet pornography
Internet pornography is pornography that is distributed by means of various sectors of the Internet, primarily via websites, peer-to-peer file sharing, or Usenet newsgroups...
, simulated pornography
Simulated pornography
Simulated child pornography is defined as pornography depicting minors that is produced without the direct involvement of children in the production process itself...
, obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
laws, and specific laws against child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
.
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
Child sexual abuse
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
. This argument has been disputed by the claim that there is no scientific basis for that connection, 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.
This is exemplified in a case involving a man, from Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
who, while arrested after viewing lolicon
Lolicon
, also romanised as lolikon or rorikon, is a Japanese portmanteau of the phrase "Lolita complex". In Japan, the term describes an attraction to underage girls or an individual with such an attraction...
at a public library computer, asserted that he had quit collecting real child pornography and switched to lolicon.
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. 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.
Australia
Only real sexualised depictions of children under the age of 18 (or who appear to be under that age) are illegal in AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, and there is a 'zero-tolerance' policy in place. 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
The Simpsons
The Simpsons is an American animated sitcom created by Matt Groening for the Fox Broadcasting Company. The series is a satirical parody of a middle class American lifestyle epitomized by its family of the same name, which consists of Homer, Marge, Bart, Lisa and Maggie...
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; 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. 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. The classification law is again not Federal or nation-wide and regards only South Australia.
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 CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision, R. v. Sharpe
R. v. Sharpe
R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, is a Canadian civil rights decision of the Supreme Court of Canada. The Court upheld the child pornography provisions of the Criminal Code of Canada as a valid limitation of the right to freedom of expression under section 2 of the Canadian Charter of...
, 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, loliconLolicon
, also romanised as lolikon or rorikon, is a Japanese portmanteau of the phrase "Lolita complex". In Japan, the term describes an attraction to underage girls or an individual with such an attraction...
, shotacon
Shotacon
, sometimes shortened to , is a Japanese slang portmanteau of the phrase and describes an attraction to young boys, or an individual with such an attraction. Outside Japan, the term is used less often with this meaning. It refers to a genre of manga and anime wherein pre-pubescent or pubescent...
, and cartoon pornography
Cartoon pornography
Cartoon pornography is the portrayal of illustrated or animated fictional characters in erotic or sexual situations. Cartoon pornography includes but is not limited to parody renditions of famous cartoons and comics.-Non-parody artists:...
in general are not included.
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 idolJunior idol
In Japan, a , alternatively or , is primarily defined as a child or early teenager pursuing a career as a photographic model ....
media, erotic manga
Manga
Manga is the Japanese word for "comics" and consists of comics and print cartoons . In the West, the term "manga" has been appropriated to refer specifically to comics created in Japan, or by Japanese authors, in the Japanese language and conforming to the style developed in Japan in the late 19th...
genres such as lolicon
Lolicon
, also romanised as lolikon or rorikon, is a Japanese portmanteau of the phrase "Lolita complex". In Japan, the term describes an attraction to underage girls or an individual with such an attraction...
and shotacon
Shotacon
, sometimes shortened to , is a Japanese slang portmanteau of the phrase and describes an attraction to young boys, or an individual with such an attraction. Outside Japan, the term is used less often with this meaning. It refers to a genre of manga and anime wherein pre-pubescent or pubescent...
, and the appearance of their themes in erotic computer games
Eroge
An or Ero-ga is a Japanese video or computer game that features erotic content, usually in the form of anime-style artwork. Eroge originated from galge, but unlike galge, they feature erotic/pornographic content.-History:...
and doujinshi. UNICEF Japan and other organizations have petitioned Japan to outlaw not only actual child pornography but also cartoon pornography depicting minors, but they have not obliged so far. Japan, along with Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
, are the only two member countries in the G8 that have not outlawed the simple possession of child pornography. 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.
On August 25, 2011, Japan's Liberal Democratic Party submitted a petition requesting stricter laws on Child Porn, which included animated child porn.
Netherlands
On October 1, 2002, the NetherlandsNetherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" as illegal.
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. "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."
New Zealand
In New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, 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
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
, and 10 years in prison if the offence is committed knowingly.
In December 2004, the Office of Film and Literature Classification determined that Puni Puni Poemy
Puni Puni Poemy
is a two-part original video animation spin-off from the Excel Saga manga and TV animation. It features some of that series' secondary characters and many of its staff, primarily director Shinichi Watanabe...
- 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.
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. This would include, for example, an adult model with childish clothes/toys/surroundings. It is not certain whether this law would also apply to lolicon as 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 AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
. 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.' 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 SwedenSweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, regardless of how realistic or abstract they are. A “child” is defined as a “person” who is either under the age of 18 or who hasn't passed puberty.
These laws have been recorded in the media being put into play in Uppsala
Uppsala
- Economy :Today Uppsala is well established in medical research and recognized for its leading position in biotechnology.*Abbott Medical Optics *GE Healthcare*Pfizer *Phadia, an offshoot of Pharmacia*Fresenius*Q-Med...
: the district court punished a man with a monetary fine and probation for possession of manga-style images. This was appealed, and has been taken to the Court of Appeal. 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
Leif Silbersky
Leif Silbersky is a well-known Swedish lawyer and author, living in Stockholm.He is notable for taking many high-profile cases which have enjoyed large media attention, making him one of the most noted lawyers in Sweden....
, 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
The Simpsons
The Simpsons is an American animated sitcom created by Matt Groening for the Fox Broadcasting Company. The series is a satirical parody of a middle class American lifestyle epitomized by its family of the same name, which consists of Homer, Marge, Bart, Lisa and Maggie...
and Donald Duck
Donald Duck
Donald Fauntleroy Duck is a cartoon character created in 1934 at Walt Disney Productions and licensed by The Walt Disney Company. Donald is an anthropomorphic white duck with a yellow-orange bill, legs, and feet. He typically wears a sailor suit with a cap and a black or red bow tie. Donald is most...
. The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced. It was immediately further appealed to the Supreme Court. 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, and the Supreme Court has decided to do so.
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 1994Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
, since that covered "pseudo-photograph
Pseudo-photograph
A pseudo-photograph is "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph".Although the term pseudo-photograph can be applied regardless of what it depicts, in law its meaning is especially relevant regarding child pornography.In the UK, the...
s"—images that appear to be photographs. In 2008 it was further extended
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
to cover tracings, and other works derived from photographs or pseudo-photographs. 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. The new law however covers images whether or not they are realistic.
Coaker added that the Government was giving close consideration to the issues and options, and on 13 December 2006 UK Home Secretary John Reid
John Reid (politician)
John Reid, Baron Reid of Cardowan, PC is a British politician, who served as a Labour Party Member of Parliament and cabinet minister under Tony Blair, most notably as Defence Secretary and then Home Secretary...
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. 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.
The children's charity NCH
NCH
Action for Children is a national children’s charity in the United Kingdom that supports and speaks out for the most vulnerable and neglected children, young people, families and their communities....
, 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".
The current law was foreshadowed in May 2008, when the Government announced plans to criminalise all non-realistic sexual images depicting under-18s. Home Secretary John Reid
John Reid (politician)
John Reid, Baron Reid of Cardowan, PC is a British politician, who served as a Labour Party Member of Parliament and cabinet minister under Tony Blair, most notably as Defence Secretary and then Home Secretary...
and Parliamentary under Secretary of State for Justice Maria Eagle
Maria Eagle
Maria Eagle is a British solicitor and Labour Party politician. She is the Member of Parliament for Garston and Halewood, having been the MP for Liverpool Garston from 1997 to 2010....
both specifically cited lolicon
Lolicon
, also romanised as lolikon or rorikon, is a Japanese portmanteau of the phrase "Lolita complex". In Japan, the term describes an attraction to underage girls or an individual with such an attraction...
as something they want to ban under this new law.
These plans became part of the Coroners and Justice Act 2009
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
, sections 62–68, and came into force on 6 April 2010. 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 novel
Graphic novel
A graphic novel is a narrative work in which the story is conveyed to the reader using sequential art in either an experimental design or in a traditional comics format...
s such as Lost Girls
Lost Girls
Lost Girls is a graphic novel depicting the sexually explicit adventures of three important female fictional characters of the late 19th and early 20th century: Alice from Alice's Adventures in Wonderland, Dorothy Gale from The Wizard of Oz and Wendy Darling from Peter Pan...
and Watchmen
Watchmen
Watchmen is a twelve-issue comic book limited series created by writer Alan Moore, artist Dave Gibbons, and colourist John Higgins. The series was published by DC Comics during 1986 and 1987, and has been subsequently reprinted in collected form...
.
The Government claimed that publication or supply of such material may be illegal under the Obscene Publications Act
Obscene Publications Act
Since 1857, a series of obscenity laws known as the Obscene Publications Acts have governed what can be published in England and Wales. The classic definition of criminal obscenity is if it "tends to deprave and corrupt," stated in 1868 by John Duke Coleridge, 1st Baron Coleridge.There have been...
, if a jury would consider it to have a tendency to "deprave and corrupt". 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.In the United States, pornography is considered a form of personal expression, and thus governed by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
to the Constitution. Pornography is generally protected speech, unless it is obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
, as the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held in 1973 in Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
.
The United States Supreme Court's 2002 ruling in Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...
ruled that the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
was facially invalid in prohibiting virtual
Simulated pornography
Simulated child pornography is defined as pornography depicting minors that is produced without the direct involvement of children in the production process itself...
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 2003PROTECT Act of 2003
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today"....
(also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003 by then president
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
. The law enacted , 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
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
... 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. There is also an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
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.
In Richmond, Virginia
Richmond, Virginia
Richmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
, on December 2005, Dwight Whorley was convicted under 18 U.S.C. 1466A for using a Virginia Employment Commission
Virginia Employment Commission
The Virginia Employment Commission is a division of the Virginia state government that provides benefits and services to unemployed citizens....
computer to receive "...obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
Japanese anime cartoons that graphically depicted prepubescent
Puberty
Puberty is the process of physical changes by which a child's body matures into an adult body capable of reproduction, as initiated by hormonal signals from the brain to the gonads; the ovaries in a girl, the testes in a boy...
female children being forced to engage in genital-genital and oral-genital
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
intercourse with adult males." He was also convicted of possessing child pornography involving real children. He was sentenced to 20 years in prison.
On December 18, 2008 the Fourth Circuit Court of Appeals affirmed the conviction. 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. The request for rehearing was denied on June 15, 2009 and the petition
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
for his case to be reviewed by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
was denied on January 11, 2010.
A man from Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
asserted at his arrest that after viewing lolicon at a public library, he had quit collecting real child pornography and switched to lolicon.
In October 2008, Neil Gaiman
Neil Gaiman
Neil Richard Gaiman born 10 November 1960)is an English author of short fiction, novels, comic books, graphic novels, audio theatre and films. His notable works include the comic book series The Sandman and novels Stardust, American Gods, Coraline, and The Graveyard Book...
and the Comic Book Legal Defense Fund
Comic Book Legal Defense Fund
The Comic Book Legal Defense Fund is a United States non-profit organization created in 1986 to protect the First Amendment rights of comics creators, publishers, and retailers covering legal expenses....
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.
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
The Simpsons
The Simpsons is an American animated sitcom created by Matt Groening for the Fox Broadcasting Company. The series is a satirical parody of a middle class American lifestyle epitomized by its family of the same name, which consists of Homer, Marge, Bart, Lisa and Maggie...
engaged in sexual acts. In January 2011, Kutzner was sentenced to serve 15 months in federal prison.
In October 2011, a Maine man was arrested for possession of "anime" depicting children in sexual situations. He is facing state and federal charges according to police. http://bangordailynews.com/2011/11/18/news/hancock/state-court-lifts-restrictions-on-ex-deer-isle-stonington-school-employee-accused-of-child-porn/ https://bangordailynews.com/2011/10/04/news/hancock/deer-isle-stonington-schools-employee-arrested-on-child-porn-charges/?ref=relatedBox
See also
- List of pornography laws by country
- LoliconLolicon, also romanised as lolikon or rorikon, is a Japanese portmanteau of the phrase "Lolita complex". In Japan, the term describes an attraction to underage girls or an individual with such an attraction...
/ShotaconShotacon, sometimes shortened to , is a Japanese slang portmanteau of the phrase and describes an attraction to young boys, or an individual with such an attraction. Outside Japan, the term is used less often with this meaning. It refers to a genre of manga and anime wherein pre-pubescent or pubescent... - Victimless crime