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Cartoon sexual depictions minors ruled illegal, the consequences and a bit of Gaiman
Lanz
...Za?Registered User regular
...Za?Registered User regular
Pardon the poor title, I hit the character limit. But, enough before-discussion-even-begins digression
Today, the 4th Circuit Court of Appeals upheld the conviction of Dwight Whorley, who in 2005 used a public computer for downloading cartoon child pornography and actual child pornography, along with graphic e-mails depicting the molestation of children.
However, in part of this conviction, it has been reported that the court also upheld that cartoons depicting minors having sex are also illegal. Now, this has been a point of debate for a while, but until this reaches a higher court, as I understand it, it's illegal.
AP news report via Fox News in the spoiler below with more details
http://www.foxnews.com/story/0,2933,470524,00.html
But, leaves us with the question: Being intellectually honest, is (and should) cartoon depictions of minors engaged in sexual activity be found to be illegal as the depictions of actual children being sexual abused? Especially if those depicted within the cartoon aren't even based on real individuals?
Neil Gaiman wrote a blog post, recently, on this very subject. It's a bit long, and valuable reading to the discussion so I'll leave it unspoiler-tagged.
So, a few questions about this situation:
A) How do we justify making the drawn depictions of minors in sexual activity tantamount to the depictions of actual abused minors?
How do we justify banning this form of speech, because of the above, without banning other depictions of illegal activity, or the participation in virtual forms thereof (if a gamer, say, slaughters an entire town in Fallout 3, has he, by the logic used here, committed some mass murder?)
C) How do we Justify the argument, for banning this speech, that drawn depictions of children in sexual acts encourages viewers of such depictions to engage in such activities, while somehow allowing fictionalized illegal violence or other virtual illegal activity in other media (be it movies, games, books, etc.) to go by without the same restriction?
Today, the 4th Circuit Court of Appeals upheld the conviction of Dwight Whorley, who in 2005 used a public computer for downloading cartoon child pornography and actual child pornography, along with graphic e-mails depicting the molestation of children.
However, in part of this conviction, it has been reported that the court also upheld that cartoons depicting minors having sex are also illegal. Now, this has been a point of debate for a while, but until this reaches a higher court, as I understand it, it's illegal.
AP news report via Fox News in the spoiler below with more details
RICHMOND, Va. — Child pornography is illegal even if the pictures are drawn, a federal appeals panel said in affirming the nation's first conviction under a 2003 federal law against such cartoons.
Dwight Whorley of Richmond is serving 20 years in prison, convicted in 2005 of using a public computer for jobseekers at the Virginia Employment Commission to receive 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men. Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received e-mails graphically describing parents sexually molesting their children.
A three-judge panel of the 4th U.S. Circuit Court of Appeals on Thursday upheld his conviction.
Among the arguments in his appeal was that cartoons are protected under the First Amendment because they do not depict real children. He also claimed the statute is unconstitutional because text-only e-mails cannot be obscene.
Two judges rejected those arguments. A third agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.
Judge Paul V. Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that "it is not a required element of any offense under this section that the minor depicted actually exists."
Rob Wagner, the federal public defender who represented Whorley, said he was "very disappointed" with the ruling and that he would ask the full appeals court to reconsider. If that fails, Wagner said he will petition the U.S. Supreme Court to review the case.
A Virginia jury convicted Whorley of 74 counts including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene e-mails describing the sexual abuse of children.
Whorley, 55, is serving his sentence at the Gilmer Federal Correction Institution in Glenville, W.Va.
He previously was sentenced to 46 months in prison for a 1999 child pornography conviction.
But, leaves us with the question: Being intellectually honest, is (and should) cartoon depictions of minors engaged in sexual activity be found to be illegal as the depictions of actual children being sexual abused? Especially if those depicted within the cartoon aren't even based on real individuals?
Neil Gaiman wrote a blog post, recently, on this very subject. It's a bit long, and valuable reading to the discussion so I'll leave it unspoiler-tagged.
http://journal.neilgaiman.com/2008/12/why-defend-freedom-of-icky-speech.htmlWhy Defend Freedom of Icky Speech?This is a bit long.Apologies.I'd meant to talk about other things, but I started writing this reply this morning and got a bit carried away.
I have questions about the Handley case. What makes lolicon something worth defending? Yaoi, as I understand it, isn't necessarily child porn, but the lolicon stuff is all about sexualizing prepubescent girls, yes? And haven't there been lots of credible psych studies saying that if you find a support community for a fetish, belief or behavior, you're more likely to indulge in it? That's why social movements are so important for oppressed or non-mainstream groups (meaning everything from the fetish community to free-market libertarianism) -and why NAMBLA is so very, very scary (they are, essentially, a support group for baby-rapists.)
The question, for me, is even if we only save ONE child from rape or attempted rape, or even just lots of uncomfortable hugs from Creepy Uncle Dave, is that not worth leaving a couple naked bodies out of a comic? It is, after all, more than possible to imply and discuss these issues (ex. if someone loses their virginity at 14, and chooses to write a comic about it) without having a big ol' pic of 14 yr. old poon being penetrated as the graphic. I also think there's a world of difference between the Sandman story-which depicts child rape as the horrific thing it is (and, I believe, also ends with a horrific death for the pervert, doesn't it?) and depicting child rape as a sexy and titillating thing. I think there is also a difference between acknowledging children's sexuality, and pornography about children that is created for adults. Where on this spectrum does something like lolicon fall? And, again, why do you, personally, think that it should be defended?
Thanks for reading my ramble, and for being accessible to us, and engaged in things like CBLDF. Mostly, they are a fantastic org., but I'm really on the fence with this case...
Jess
Let me see if I can push you off the fence, a little. I'm afraid it's going to a long, and probably a bit rambly answer -- a credo, and how I arrived at that.
If you accept -- and I do -- that freedom of speech is important, then you are going to have to defend the indefensible. That means you are going to be defending the right of people to read, or to write, or to say, what you don't say or like or want said.
The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don't. This is how the Law is made.
People making art find out where the limits of free expression are by going beyond them and getting into trouble.
LOST GIRLS, by Melinda Gebbie and Alan Moore is several hundred pages long. I posted the full-length review I did for Publishers Weekly here. Describing it, I said,The boundary between pornography and erotica is an ambiguous one, and it changes depending on where you're standing. For some, perhaps, it's a matter of whatever turns you on (my erotica, your pornography), for some the distinction occurs in class (i.e. erotica is pornography for rich people). Perhaps it's also something to do with the means of distribution – internet pornography is unquestionably porn, while an Edwardian publication, on creamy paper, bought by connoisseurs, part works bound into expensive volumes, must be erotica.and I went on to say, of Lost Girls,It's the kind of smut that would have no difficulty in demonstrating to an overzealous prosecutor that it has unquestionable artistic validity beyond its simple first amendment right to exist.(Which is the kind of thing you put in a review suspecting that its real purpose may be, one day in the future, to persuade a prosecutor that the case is already lost, and not to bother.)
In with Lost Girls' many permutations of sexuality, we find some content featuring fictional characters under the current age of consent. It's a story about sexual awakenings, after all, and few of us wake exactly on our eighteenth birthdays (or whatever your local age of consent or representation happens to be). At one point we find ourselves reading a book within a book, a Beardsleyesque fantasia in which fictional characters discuss the fact that they are lines on paper, metafictional fantasies, while having underage, incestuous, sex. It's art, and it's brilliant, it's deeply problematic and it makes you think about what porn is and what art is, and where the boundaries are.
The Law is a blunt instrument. It's not a scalpel. It's a club. If there is something you consider indefensible, and there is something you consider defensible, and the same laws can take them both out, you are going to find yourself defending the indefensible.
I was born the day of the conclusion of the Lady Chatterley trial in England, the day it was decided that Lady Chatterley's Lover, with its swearing, buggery and raw sex between the classes, was fit to be published and read in a cheap edition that poor people and servants could read. This was the same England in which, some years earlier, the director of public prosecutions had threatened to prosecute Professor F R Leavis if he so much as referred to James Joyce's Ulysses in a lecture (the DPP was Archibald Bodkin, who also banned The Well of Loneliness) , in which, when I was sixteen and listening to the Sex Pistols, the publisher of Gay News was sentenced to prison for the crime of Criminal Blasphemy, for publishing an erotic poem featuring a fantasy about Jesus.
When I was writing Sandman, about eighteen years ago, I had thought that the Marquis de Sade would make a fine character for my French Revolution story (I loved the fact that at the time he was a tubby, asthmatic imprisoned for his refusal to sentence people to death) and realised I ought to read his books, rather than commentaries on them, if I was going to put him in my story. I discovered that the works of DeSade were, at that time, considered obscene and not available in the UK, and that UK Customs had declared them un-importable. I bought them in a Borders the next time I was in the US, and brought them through customs looking guilty. (You can now get De Sade in the UK. The arrival of internet porn in the UK meant that the police stopped chasing things like that.)
The first time I got involved in fund-raising for comics freedom of speech was in late 1983 or early 1984 -- Knockabout Comics were having one of their frequent battles with UK Customs over what could and could not be imported into the UK. Some comics contained rude words, sex, or the use of marijuana in them, and UK Customs would seize any comics they objected to, and often other comics in the same shipment, forcing Knockabout to fight long, expensive, court cases to get their comics back. (I remember the outrage when, in 1996, Knockabout imported some Robert Crumb books to accompany a major BBC TV documentary on Crumb, and UK Customs confiscated the books, forcing yet another court case. I'm pretty sure that it was over some autobiographical Crumb work which contained drawings of sexual fantasies including characters who were under 18. As Tony Bennett, from Knockabout said in a recent interview, "The other case was with HM Customs in 1996 over Robert Crumb’s comics and explicit sexual imagery. We won this overwhelmingly as well and Customs were kind enough to write to me after the case setting out a list of what sex acts might be shown in comics. I haven’t actually framed it but it is a precious document.")
The first time I ever came close actually to sending a publisher to prison for something I had written was about 1986 or 1987, for Knockabout's Outrageous Tales From The Old Testament: I'd retold a story from the Book of Judges that contained a rape and murder, and this was held to have contravened a Swedish law depicting images of violence against women. The case was only won when the defense pointed out that the words were from the King James version of the bible, and that the images were a fair representation thereof...
(For those of you who are a bit shaky on your Book of Judges, here's an online Bible version of the scene that caused the prosecution.While they were enjoying themselves, some of the wicked men of the city surrounded the house. Pounding on the door, they shouted to the old man who owned the house, "Bring out the man who came to your house so we can have sex with him."And in each case I've mentioned so far, you could rewrite Jess's letter above, explaining that only perverts would want to read Lady Chatterley, or see images of women being abused, or read Lost Girls or the works of Robert Crumb, and mentioning that if only one person was saved from a hug from a creepy uncle, or indeed, being raped in the streets, that banning them or prosecuting those who write, draw, publish, sell or -- now -- own them, is worth it. Because that was the point of view of the people who were banning these works or stopping people reading them. They thought they were doing a good thing. They thought they were defending other people from something they needed to be protected from.
The owner of the house went outside and said to them, "No, my friends, don't be so vile. Since this man is my guest, don't do this disgraceful thing. Look, here is my virgin daughter, and his concubine. I will bring them out to you now, and you can use them and do to them whatever you wish. But to this man, don't do such a disgraceful thing."
But the men would not listen to him. So the man took his concubine and sent her outside to them, and they raped her and abused her throughout the night, and at dawn they let her go. At daybreak the woman went back to the house where her master was staying, fell down at the door and lay there until daylight.
When her master got up in the morning and opened the door of the house and stepped out to continue on his way, there lay his concubine, fallen in the doorway of the house, with her hands on the threshold. He said to her, "Get up; let's go." But there was no answer. Then the man put her on his donkey and set out for home.
When he reached home, he took a knife and cut up his concubine, limb by limb, into twelve parts and sent them into all the areas of Israel.)
I loved coming to the US in 1992, mostly because I loved the idea that freedom of speech was paramount. I still do. With all its faults, the US has Freedom of Speech. You can't be arrested for saying things the government doesn't like. You can say what you like, write what you like, and know that the remedy to someone saying or writing or showing something that offends you is not to read it, or to speak out against it. I loved that I could read and make my own mind up about something.
(It's worth noting that the UK, for example, has no such law, and that even the European Court of Human Rights has ruled that interference with free speech was "necessary in a democratic society" in order to guarantee the rights of others "to protection from gratuitous insults to their religious feelings.")
So when Mike Diana was prosecuted -- and found guilty -- of obscenity for the comics in his Zine "Boiled Angel", and sentenced to a host of things, including (if memory serves) a three year suspended prison sentence, a three thousand dollar fine, not being allowed to be in the same room as anyone under eighteen, over a thousand hours of community service, and was forbidden to draw anything else obscene, with the local police ordered to make 24 hour unannounced spot checks to make sure Mike wasn't secretly committing Art in the small hours of the morning... that was the point I decided that I knew what was obscene, and it was prosecuting artists for having ideas and making lines on paper, and that I was going to do everything I could to support the Comic Book Legal Defense Fund. Whether I liked or approved of what Mike Diana did was utterly irrelevant. (For the record, I didn't like the text parts of Boiled Angel, but did like the comics, which were personal and had a raw power to them. And somewhere in the sprawling basement magazine collection I have Boiled Angel 7 and 8, which I read back then to find out what was being prosecuted, and for owning which I could, I assume, now be arrested...)
The first time the CBLDF did anything to defend one of my comics, it was the Death Talks About Life comic at the back of DEATH: THE HIGH COST OF LIVING, in which we see Death putting a condom on a banana and talking about how not to get pregnant, diseased, or dead. The Chief of Police in (if memory serves) Jacksonville Florida ordered a comic shop not to sell it, because she thought it was obscene and encouraged teen sex. In this case, it only took a letter from the CBLDF legal counsel, Burton Joseph, to the Jacksonville Police Department, explaining the concept of the First Amendment (and, by implication, that there was an organisation prepared to defend this stuff) and they shut up and went away. (That's what most of the CBLDF activity consists of -- small, quiet things that stop the threats to stores or creators ever getting to a court of law.) From the police chief's point of view, Death Talks About Life was obscene. She wanted it off the shelves. She wanted people protected from it.
In this case you obviously have read lolicon, and I haven't. I don't know whether you're writing from personal experience here, and whether you have personally been incited to rape children or give inappropriate hugs by reading it. (I assume you haven't. I assume that Chris Handley, with his huge manga collection, wasn't either. I've read books that claimed that exposure to porn causes rape, but have seen no statistical evidence that porn causes rape -- and indeed have seen claims that the declining number of US rapes may be due to the wider availability of porn. Honestly, I think it's a red herring in First Amendment matters, and I'll leave it for other people to argue about.) Still, you seem to want lolicon banned, and people prosecuted for owning it, and I don't. You ask, What makes it worth defending? and the only answer I can give is this: Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you're going to have to stand up for stuff you don't believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don't, because prosecutors are humans and bear grudges and fight for re-election, because one person's obscenity is another person's art.
Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.
The CBLDF will defend your First Amendment right as an adult to make lines on paper, to draw, to write, to sell, to publish, and now, to own comics. And that's what makes the kind of work you don't like, or don't read, or work that you do not feel has artistic worth or redeeming features worth defending. It's because the same laws cover the stuff you like and the stuff you find icky, wherever your icky line happens to be: the law is a big blunt instrument that makes no fine distinctions, and because you only realise how wonderful absolute freedom of speech is the day you lose it.
(And let it be understood that I think that child pornography, and the exploitation of actual children for porn or for sex is utterly wrong and bad, because actual children are being directly harmed. And also that I think that prosecuting as child pornographers a 16 and 17 year old who were legally able to have sex, because they took a sexual photograph of themselves and emailed it to themselves is utterly, insanely wrong, and a nice example of the law as blunt instrument.)
So, a few questions about this situation:
A) How do we justify making the drawn depictions of minors in sexual activity tantamount to the depictions of actual abused minors?
How do we justify banning this form of speech, because of the above, without banning other depictions of illegal activity, or the participation in virtual forms thereof (if a gamer, say, slaughters an entire town in Fallout 3, has he, by the logic used here, committed some mass murder?)C) How do we Justify the argument, for banning this speech, that drawn depictions of children in sexual acts encourages viewers of such depictions to engage in such activities, while somehow allowing fictionalized illegal violence or other virtual illegal activity in other media (be it movies, games, books, etc.) to go by without the same restriction?
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There is to date no evidence that a drawn depiction of anything is inherently harmful, where there are clear implications for societal harm if we start condoning wholesale censorship.
Whorley's lawyers should take all the cartoon porn he was arrested for and stick in disclaimers at the beginning saying that all the characters are actually 40 somethings with rare glandular problems. Apparently that would make it all legal.
Well, that wouldn't make the actual child pornography he had legal.
At least it'd drop some of those 74 counts.
It needs to be stopped dead, drawings of naked kids is free speech. Defending this is not the same as defended child pornography, but it could easily be seen as such. That is why this is so dangerous, it's an issue that politicians looking for boosting their public image can attach to like a lamprey eel, something that is illegal despite the law. They keep trying the same shit with video games, and I think it's just disgraceful across the board.
Making it illegal is an emotional decision, pure and simple.
Let me see if I can find it...
Silly than, you know the US doesn't have to obey its constitution! It's not like it's a document that helped form the basis for our entire country and set down firm, untouchable rights or anything!
But where does it stop? Does it stop at underage sex, or will they extend it to depictions of violence in general? This can't mean anything good for art, books, music, movies or games. The Taliban had similar laws.
Some guy uploaded a video of someone swinging a child around in a "dangerous manner" and promptly had his door kicked in, was arrested and had his computers searched. His life is ruined because he uploaded a video filmed in another country to another website that might potentially maybe perhaps have been dangerous to the child who seemed perfectly happy.
"For the children" is a good example of why unchallenged moral "social norms" can be dangerous. It's no better than any other knee jerk reaction if you can't back it up.
Oops, there goes the Bible.
Whatever happens, it'll probably result in a few new memes.
After a lengthy internal court case involving a twelve person jury (consisting of my various personalities) a judge (me) some lawyers (all representatives from "Me, Myself & I", a law firm i happen to a partner in) and Mr. boomerang (my cat) I have come to these conclusions:
1. The debate isn't "is it right or wrong?" because on that no one can say.
2. That the debate is in fact: "is something that is potentially harmful something that should be illegal?"
3. If conclusion #2 is correct then the answer to question asked therein is no.
There you have it, that is my reasoning.
If you don't agree then here is a passage from the transcript from court proceedings:
Lawyer #1: I move that zz_tophat be held in contempt for being so "good looking".
Lawyer #2: Objection! Mr. Tophat is both "good looking" and "smart".
Judge: overruled! it has not been proven that zz_tophat it neither good looking or smart but "the best looking" and a "genius".
Mr. boomerang: meow
Lawyer #1, Lawyer #2: Objection!
Judge: Overruled, But I'd like instruct Mr. boomerang that in the future the keyboard in off limits while i am typing.
Yay, we're back to "I know it when I see it."
This isn't even a slippery slope, it's just the bottom of a really stupid slope.
0-|-< <-- naked and only 17 and a half! Oh nooo.
That's okay because the angle at which he's standing obscures his naughty bits. Now this drawing of an underaged girl:
0-|:-<
...is plainly smut and will no doubt bring about the downfall of modern society. I'm developing the urge to go rape a bus-full of minors just thinking about it.
What the Court explicitly did not do was read the statute as criminalizing the possession of virtual child porn itself: "Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography." Williams at 1844. The 4th Circuit's decision makes absolutely no sense on first impression, but I'll have to read the decision to see what they actually charged the guy with.
Fuck.
I think there is a fine line between precious moment drawings and cartoons of 10 year old girls being raped.
I don't live in Japan though, so who knows.
You are still seeing a 4 year old having sex.
I looked up that film and I guess you are referring to the 17 year old showing boobs?
Again, I think there is a fine line between a girl that is 1 year from being an adult(in the u.s. at least) flashing her boobs and a 10 year old getting full facial. I guess I'm weird like that.
Gary Coleman doesn't look 4. Gary Coleman barely looks 20. You are trying to defend child pornography by saying that in some stories it's ok because the 4 year old being tentacle raped is actually a 18 year old freshmen that was cursed by a witch or something.
That is just trying to make it ok to see the 4 year old being tentacle raped.
That is fine, but you guys have to understand why most people are going to think that is insane right?
I don't really give a shit about what "most people" think when it comes to legal precedent.
Does it show sex or like what? I've read the movie got controversy, so apparently it wasn't ok with some people. I guess I'm talking more of the porn part of all this. I still see a difference between that and child porn. I highly doubt the drawings the guy is in trouble for are anything near whatever was depicted in the movie you're talking about.
But I get what you're point is.
I meant that you should at least understand why someone would find that a little messed up. Most high school students I see hate the government for no apparent reason. Why should drawings of kids being sexed up be completely unrestricted exactly?
I don't go with the whole "because it isn't real" excuse. I can see a difference between a drawing of a half wolf man going down on a dragon, but a realistic drawing of a 5 year old being jizzed on seems a bit too much.
I guess by most people I meant normal and sane.
What is so special about child pornography that makes its depiction in fiction specifically something that can be limited under the First Amendment, that doesn't apply to any other crime? What is the legal standard you're using?
And you'll have to point out where I said that this kind of shit isn't fucked up. It's very fucked up. However, there's a huge difference between being fucked up and being speech that can be legally forbidden.
It's not the "child porn" part of this that I'm defending. This ruling means that you can take a pen and paper and draw something illegal, that would mean significant jail time for you and anyone with a copy of the drawing. If this ruling is upheld then those stick figures Durandal and Jeffe created really could be deemed child pornography by a court of law. Obviously no sane court would do that, but the point is that they could. That is crazy.