Legal status of cartoon pornography depicting minors

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.

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, 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 and the Philippines. Legislation to mirror this in the United Kingdom will be in force from the spring of 2010. 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.

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
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. 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.

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.

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 erotic computer games cater to dating and/or sex, and there are doujinshis (fan works) for popular anime and manga which depict minors in sex acts. UNICEF Japan 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. On March, 19, 2010, the Tokyo Metropolitan Government originally planned to vote on if to ban or regulate the sell of lolicon material, but decided to postpone the vote. They later struck down the bill.

Netherlands
On October 1, 2002, the Netherlands 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", and hence lolicon is not included.

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 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.

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.

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 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.' 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.

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.

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. 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 novels 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.

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.

The United States Supreme Court's 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. However, the ruling stated that those types of images could, however, be prosecuted as obscenity under the Miller test. The Miller test is the same test used to determine whether photos or films of sexual depictions adults are obscene.

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. 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.

In April 2006, the American citizen Dominic Sousa was jailed in the allied nation of Canada for importing it.

In October 2008, the Comic Book Legal Defense Fund became involved with the case of Christopher Handley. In 2009, Handley plead 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.