Legal status of cartoon pornography depicting minors

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

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

Currently, countries that have made it illegal to possess (or create/distribute) sexual images of fictional characters who are described as or appear to be under eighteen years old include Canada, South Africa, Sweden and the Philippines^[5]. Legislation is in process to mirror this in the United Kingdom. At the upper edge, this encapsulates pornographic depictions of even seventeen-year olds together, or adults where the predominant impression conveyed is of a person under the age of 18.

Contents 1 Argentina 2 Australia 3 Canada 4 Japan 5 Netherlands 6 New Zealand 7 Norway 8 South Africa 9 Sweden 10 United Kingdom 11 United States 12 See also 13 References

Argentina

The Penal code states, on its recently reformed article 128, that:

"It Shall be repressed with prison of six (6) months to four (4) years [the person]who produce, finance, offer, deal, publish, facilitate, disclose or distribute, by any means, all representation of a minor below eighteen (18) years dedicated to explicit sexual activities or all representation of its genital parts with predominantly sexual aims, and so will the ones to organize live spectacles of explicit sexual representations in which these minors should participate. It shall be repressed with prison of four (4) months to two (2) years [the person] that will have in its power representations of those mentioned in the previous paragraph with unequivocal aims of distribution or commercialization."

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, which covers purely fictional children as well as real children.^[6]

In December 2008, a Sydney man 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.^[7]

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.

Japan

Japan has unique laws regarding pornography. Things like pubic hair and genitals are frequently illegal to show (with popularized mosaic or black bar), yet things like lolicon (erotic cartoon depiction of young girls) and shotacon (young boys equivalent) are common. Many eroge (visual novels which are usually erotic) cater to dating and/or sex, and there are doujinshis (fan works) for popular anime and manga which depict minors in sex acts. UNICEF has petitioned Japan to outlaw cartoon pornography of minors, but they have not obliged so far, cooperating so far only with the request to outlaw possession of real minor porn.

Netherlands

On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" as illegal.^[8]

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.^[9]

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.^[10]

Norway

In Norway, any images or videos that depict pornography of persons in a childish context (which would include, for example, an adult model with childish clothes/toys/surroundings)^[11] are to be considered child pornography. Lolicon is not pictures of persons, and is therefore not counted as child pornography and is legal, in Norway (although this has not been proved by Norwegian court). So far, however, this law has been used to sentence individuals in possession of real child porn.^[12]

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.'^[13] Under the act, anyone is guilty of an offence punishable by up to 10 years imprisonment if he or she possesses, creates or produces, imports, exports, broadcasts, or in any way takes steps to procure or access child pornography.

Sweden

Any images or videos that depict children in a pornographic context are to be considered child pornography in Sweden, regardless of how realistic or abstract they are.^[14]

United Kingdom

The laws on pornographic images depicting children in the United Kingdom covers photographs, pseudo-photographs, and images derived from photographs or pseudo-photographs. On 23 November 2006, Vernon Coaker, the Parliamentary Under-Secretary of State for the Home Office, stated that "Although cartoons depicting child abuse are deeply offensive, they do not in themselves constitute abuse of a child. The 1978 Act is well understood by those who work with it and enforce it and there are substantial arguments against extending its scope to cover cartoons of child pornography."^[15] However, the law has been interpreted to apply to cartoon images.^[16]

The 1978 Act had been extended in 1994 to cover "pseudo-photographs" - images that appear to be photographs. In 2008 it was further extended to cover tracings, and other works derived from photographs or pseudo-photographs.^[17]

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.^[18] 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.^[19][20]

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".^[21]

In May 2008, the Government announced plans to criminalise all non-realistic sexual images depicting under-18s.^[22][23] 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.^[23]

These plans became part of the Coroners and Justice Act 2009. 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.^[24]

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".^[20] 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 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.

See also

• List of pornography laws by country
• Lolicon/Shotacon
• Victimless crime

References