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

Some analysts have argued whether or not cartoon pornography that depicts minors is a victimless crime. Laws have been enacted to criminalize "obscene images of children, no matter how they are made", for inciting abuse. An argument is that obscene fictional images portray children as sex objects, thereby contributing to child sexual abuse. This argument has been disputed as having a lack of scientific basis for that alleged connection pending future studies, and that restricting sexual expression in drawings or animated games and videos might possibly increase the rate of sexual crime by eliminating a non-criminal outlet for desires that could motivate crime.

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

Australia

All sexualized depictions of people under the age of 18 are illegal in Australia, and there is a "zero-tolerance" policy in place.

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

Brazil

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

Canada

Canadian laws addressing child pornography are set out in Part V of the Canadian Criminal Code, dealing with Sexual Offences, Public Morals and Disorderly Conduct: Offences Tending to Corrupt Morals. Section 163.1 of the Code, enacted in 1993, defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", that "shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity", or "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years". The definitive Supreme Court of Canada decision, R. v. Sharpe, interprets the statute to include purely fictional material even when no real children were involved in its production.

2011 tourist case

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

2015 Nova Scotia case

A man was sentenced to 90 days after pleading guilty of possessing mostly anime images. Roy Franklyn Newcombe, 70, pleaded guilty to the charge after a NSCAD student found a USB thumb drive with sexually explicit images and videos at a computer lab in April 2014.

There was no indication the images involved local people or had been manufactured by Newcombe. Most of the 20 images were anime, although a few appeared to be of real girls between five and 13 years old.

Finland

Producing and distributing pornography which realistically or factually depicts a child – basically photographic images – is illegal in Finland and punishable by a fine or up to two years imprisonment. Possession of such pornography is punishable by a fine or imprisonment for up to one year.

Realistic and factual visual depiction of a child appearing in sexual acts is defined as it having "been produced in a situation in which a child has actually been the object of sexually offensive conduct and realistic, if it resembles in a misleading manner a picture or a visual recording produced through photography or in another corresponding manner of a situation in which a child is the object of sexually offensive conduct".

Purely fantasy-based virtual child pornography – in this case, drawings and paintings – remains legal by Finnish law because it has no connection to a real abuse situation; also, such depictions may serve informational or artistic purposes which can make even reality-based images legal.

France

Since a reform of the French penal code, introduced in 2013, producing or distributing drawings that represent a minor aged less than 15 years old is considered the same as producing real child pornography and is punishable by up to five years imprisonment and a 75,000 euros fine, even if the drawings are not meant to be distributed.

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However, Amendment 462 was passed in 2015 guaranteeing the unhindered sharing of all artwork. The French law states, "the priority of public authorities is to ensure that artistic creation is disseminated and can be seen by the widest possible audience". While clarity is provided on viewing and distribution of such drawings to now be legal, it remains illegal to produce.

Italy

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

Japan

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

Netherlands

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

In a 2010 case, after viewing the images in question, which were created on a computer, the court opined that the virtual child pornography images did not fall under criminal law. "All images can be termed as pornographic (three dimensional) cartoons, animations, or drawings. The court concludes that it is immediately obvious to the average viewer that the event is not real and that the images are manipulated images and not realistic."

As of September 1, 2018, the Dutch criminal law punishes "anyone who spreads, sells, openly exhibits, manufactures, imports, transports, exports, acquires, possesses, or accesses by means of an automated system or using a communication service an image (or data carrier containing an image) depicting sexual conduct, in which someone knowingly under the age of 18, is involved (or appears to be involved)" with a prison sentence of up to 4 years or a fine in the fifth category (up to €82.000).

Belgium

In Belgium, only pornographic art that realistically depicts underage characters is illegal.

New Zealand

In New Zealand, the Films, Videos, and Publications Classification Act 1993 classifies a publication as "objectionable" if it "promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes". Making, distribution, import, or copying or possession of objectionable material for the purposes of distribution are offences punishable (in the case of an individual) by a fine of up to NZ$10,000 on strict liability, and ten years in prison if the offence is committed knowingly.

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.

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

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 could include any artificially produced material, including written text, drawn images, animation, manipulated images, an adult model with childish clothes, toys, or surroundings.

The penal act has been applied to drawn images described as "hentai-images" in Agder Court of Appeal with the following remarks:

The drawings show children in various sexual positions and abuse situations. The Court of Appeal notes that such drawings are not as serious as films, or photographs of living people. This is because the drawings are not the product of actual abuse. The drawings nevertheless help to "normalize" and underpin the industry of child sexual abuse, and for that reason is also a serious offence.

Another judgment on possession of 300-400 drawings downloaded from the internet described as Japanese lolicon hentai boi manga has the following remarks:

The Court of Appeal notes that there may be reason to look somewhat milder on drawings and other graphic sexualized representations of children, than on abusive material with living children as models / actors.

In the latter case, there is a real and serious assault behind each picture or film. It is nevertheless emphasized that possession of this material is a serious offence. It is assumed that the penalty is in the area of 90 - 120 days in prison.

Poland

Since the 2008 amendment to the Polish Penal Code (Article 202 § 4b), the production, dissemination, presenting, storing, and possession of pornographic content depicting "made or remade" images of minors taking part in any sexual activity is punishable by monetary fine, restriction of personal liberty, or imprisonment up to two years. A "minor", according to Polish law, is a person under 18 years old. If the age of a depicted person is in question, a court may appoint anthropological experts to determine it.

This law faced criticism from legal experts. Maciej Wrześniewski questioned the legitimacy of this article, arguing that "it is not possible to unquestionably confirm the age of a depicted person – since such a person does not in fact exist". This opinion was shared by Maciej Szmit, who called the whole article "unfortunately worded".

From 2008 to 2016, there were 12 people found guilty under Article 202 § 4b (as a primary crime). It is unknown in how many cases, if any, the judgment concerned drawn pornography, as this law is also used for "remade" images, such as when photographs of children's faces are pasted onto sexually explicit images of adults' bodies.

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

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 ten years imprisonment if he or she possesses, creates, produces, imports, exports, broadcasts, or in any way takes steps to procure or access child pornography.

Spain

Spain allows drawn pornography which doesn't seem like real children, including cartoons, manga or similar representations, because they would not be properly 'realistic images'. The Attorney General's Office considers that only extremely realistic images should be pursued. "In order to avoid undue extensions of the concept of child pornography, the concept of 'realistic images' must be interpreted restrictively. According to the Dictionary of the Royal Spanish Academy 'realist' means that which 'tries to adjust to reality'. Therefore, 'realistic images' will be images close to the reality which they try to imitate. However, too realistic image, even painting, is strictly prohibited due to the law of European Union, this can be understood as images can not be distinguished from children in reality by normal people. Therefore having realistic simulation materials that showing child porn, such as simulation pictures or videos, will be encountered penalty.

Switzerland

Pornography depicting fictional minors is illegal if it shows 'non-genuine sexual acts with minors' according to art. 197 of the Swiss Criminal Code. The punishment is custodial sentence not exceeding three years or to a monetary penalty.

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. A "child" is defined as a “person” who is either under the age of 18 or who has not 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 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 decided to do so. 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.

United Kingdom

The Coroners and Justice Act of April 2009 (c. 2) created a new offence in England, Wales, and Northern Ireland of possession of a prohibited image of a child. This act makes cartoon pornography depicting minors illegal in England, Wales, and Northern Ireland. Since Scotland has its own legal system, the Coroners and Justice Act does not apply. This act did not replace the 1978 act, extended in 1994, since that covered "pseudo-photographs"—images that appear to be photographs. In 2008 it was further extended to cover tracings and other works derived from photographs or pseudo-photographs. A prohibited cartoon image is one which involves a minor in situations which are pornographic and "grossly offensive, disgusting or otherwise of an obscene character".

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

History

In 2006 the government was giving close consideration to the issues and options regarding cartoon pornography, according to Vernon Coaker. On 13 December 2006 UK Home Secretary John Reid announced that the Cabinet was discussing how to ban computer-generated images of child abuse—including cartoons and graphic illustrations of abuse—after pressure from children's charities. 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 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 wanted 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 included depictions of 16- and 17-year-olds who are over the age of consent in the UK, as well as any adults where the "predominant impression conveyed" is of a person under the age of 18. The Act made it illegal to own any picture depicting under-18s participating in sexual activities, or depictions of sexual activity in the presence of someone under 18 years old. The law was condemned by a coalition of graphic artists, publishers, and MPs, who feared it would criminalise graphic novels such as Lost Girls and Watchmen.

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

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

United States

History

Drawn pornography depicting minors in the United States was first made illegal via the . In 2002, the United States Supreme Court ruled in Ashcroft v. Free Speech Coalition that two provisions of the Child Pornography Prevention Act of 1996 (CPPA) were overbroad and facially invalid in prohibiting some types of virtual. Shortly thereafter, Congress passed the PROTECT ACT in 2003. The PROTECT Act amended part of the previous law on virtual child pornography by adding an affirmative defense which states that "the alleged child pornography was not produced using any actual minor or minors". This new act also modified the law by changing the previous "appears to be a minor" section with "indistinguishable from that of a minor" phrasing. It is specified that "the term 'indistinguishable', used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This criminalized virtual child pornography that is indistinguishable from real child pornography.

The law also enacted "Section 1466A of Title 18" of United State Code, making it illegal for any person to "knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene." This re-criminalized drawn pornography depicting minors when the material fails the Miller obscenity test. One district judge ruled against this wording in 2008, but both Federal Appeals Court and the United States Supreme Court have upheld the law.

See also

• Censorship
• Legality of child pornography
• List of pornography laws by country
• Lolicon
• Shotacon

Notes

References

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72. Gareth Lightfoot (20 October 2014). "Fan of Japanese anime makes British legal history after conviction for having pictures of cartoon children". mirror. Retrieved 28 July 2015.

Further reading

• Al-Alosi, Hadeel (2018). The Criminalisation of Fantasy Material: Law and Sexually Explicit Representations of Fictional Children. Routledge. ISBN 978-1-138-57281-2.

• Child pornography law
• Lolicon