Legal status of drawn pornography depicting minors

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. 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.

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
Real child porn is illegal,considered to be any records of "any situation that involves a child or adolescent in explicit, real or simulated sexual activities, or the display of the genital organs of a child or adolescent for primarily sexual purposes ”The adjectives "real" and "simulated" (used in the plural by the rule in art. 241-E of the code of minors) refer to the explicit sexual activities represented, and not to the child or adolescent (if real or fictional product). In other words, what the law sanctions is the participation, real or simulated (through, for example, the use of photomontage technique), of a real child or adolescent in a scene with explicit sexual content however drawings and other non realistic graphic representations of fictional children no matter how offensive including pornography of the subgenre of japanese manga/hentai lolicon and shotacon are legal and not a criminal offense.

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.

2010 tourist case
In April 2010 visiting American citizen Ryan Matheson (aka Brandon X) was arrested in Ottawa 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.

2014 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.

2015 Alberta case
February 19 the Canada Border Services Agency intercepted a parcel and arrested its recipient on March 27. Based on the box art of a sculpture being shipped to him, four charges were pressed: possession/distribution, mailing obscene matter and smuggling prohibited goods. These charges were withdrawn as part of a plea deal when the accused agreed to a peace bond.

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.

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.

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".

Russia
Paragraph 1 of Article 242.1 of the Criminal Code of the Russian Federation makes it illegal to create, acquire, store, and/or move across the Russian border (including through the internet) pornographic pictures of minors. This includes drawings/depictions of minors. Real imprisonments exist.

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 does not resemble real children, including cartoons, manga or similar representations, as the law does not consider them to 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 [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. 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

1973 – 2002

In the United States, pornography is generally considered a form of personal expression, and thus governed by the First Amendment to the Constitution. Where pornography ceases to be protected expression is when it fails the Miller obscenity test, as the Supreme Court of the United States held in 1973 in Miller v. California. Another case, New York v. Ferber (1982), held that if pornography depicts real child abuse or a real child victim, as a result of photographing a live performance for instance, then it is not protected speech. 

In 1996, US Congress introduced the Child Pornography Prevention Act of 1996 (CPPA) to update the types of pornographic media featuring minors considered illegal under US federal law. In 2002, the United States Supreme Court ruled in Ashcroft v. Free Speech Coalition that two provisions of the CPPA were facially invalid due to being overbroad and covering certain aspects of protected speech, such as the non-pornographic 1999 film American Beauty. The case also reaffirmed both the Miller and Ferber decisions.

2003 – PROTECT Act
In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) which was signed into law on April 30, 2003, by President George W. Bush. The PROTECT Act adjusted its language to meet the parameters of the Miller, Ferber, and Ashcroft decisions. The Act was careful to separate cases of virtual pornography depicting minors into two different categories of law: Child pornography law and obscenity law. In regards to child pornography law, the Act modified the previous wording of "appears to be a minor" with "indistinguishable from that of a minor" phrasing. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults." Furthermore, there exists an affirmative defense to a child pornography charge that applies if the depiction was of a real person and the real person was an adult (18 or over) at the time the visual depiction was created, or if the visual depiction did not involve any actual minors (see subsection "c", parts 1 and 2, of 18 U.S.C. 2252A)  . This affirmative defense does not apply to child pornography created via morphing, namely depictions "created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct (see section (8)(c) of 18 U.S.C. 2256)  . 

The PROTECT Act also enacted  into US obscenity law:   

"Section 1466A of Title 18, United State Code, makes 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."

Thus, virtual and drawn pornographic depictions of minors may still be found illegal under US federal obscenity law. The obscenity law further states in section C "It is not a required element of any offense under this section that the minor depicted actually exist."

Laws governing non-child pornography are guided by the Miller Standard, a three-prong test used by courts to dictate obscenity according to the "average person's" point of view of the standards of the community as well as state law. The parts follow: "appeals to prurient interests", "depicts or describes, in a patently offensive way, sexual conduct" as described by law, and "taken as a whole, lack serious literary, artistic, political, or scientific value." Materials that fall within all three prongs may be declared obscene in a court of law. 

By the statute's own terms, the law does not make all fictional child pornography illegal, only that found to be obscene or lacking in serious value.  The 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, transported across state lines, or of an amount that showed intent to distribute. . 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. 

The first major case occurred in December 2005, when Dwight Whorley was convicted in Richmond, Virginia 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". On December 18, 2008, the Fourth Circuit Court of Appeals affirmed the conviction, consisting of 20 years imprisonment. Whorley appealed to the Supreme Court, but was denied cert.

2008 – present
Response to "18 U.S.C. § 1466A" has been met with legal challenges regarding its vague wording. In particular the law testing the criminalization of a "visual depiction of any kind" has since been tried in courts. In October 2008, a 38-year-old Iowa comic collector named Christopher Handley was prosecuted for possession of explicit lolicon manga. The judge ruled that two parts of the act that were broader than the Miller standard, 1466A a(2) and b(2), unconstitutional, but Handley still faced an obscenity charge.  Handley was convicted in May 2009 as the result of entering a guilty plea bargain at the recommendation of his attorney, under the belief that the jury chosen to judge him would not acquit him of the obscenity charges if they were shown the images in question. In early 2010, the Supreme Court denied Dwight Whorley's challenge to the law.

At the state level, some states have laws that explicitly prohibit cartoon pornography and similar depictions, while others have only vague laws on such content. In California such depictions specifically do not fall under state child pornography laws, while in Utah they are explicitly banned. On a federal level, works depicting minors that offend contemporary community standards and are "patently offensive" while lacking "serious literary, artistic, political, or scientific value" continue to stand as illegal. Legal professor Reza Banakar has since stated that "serious artistic value" is very difficult to evaluate, and that the legal task of evaluating the lack of such value cannot be executed objectively. The mainstream media has not picked up any cases since 2012, when a man from Missouri entered a plea bargain to "possession of cartoons depicting child pornography".

Due to the fact that obscenity is determined by a sitting judge or jury in reference to local standards and definitions on a state-by-state, case-by-case basis, the legality of drawn or fictitious pornography depicting minors is left in a 'gray area', much like other forms of alternative pornography. Some states pay less mind to the contents of such materials and determine obscenity based on time and place an offense may occur, while others may have strict, well-defined standards for what a community may be allowed to find appropriate. Others only may have vague laws or definitions which are only used to allow the government to prosecute recidivist offenders on both a federal and state level. 

The following are cases which have been brought up since the ruling in 2008

2010 Idaho case
In October 2010, 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. The case was originally brought up due to the fact that the German Federal Police identified and reported to U.S. authorities Kutzner's IP address as one where a known file containing actual child pornography was being shared. During the forensic investigation, which uncovered "six hundred and thirty two (632) image files, seventy (70) of which were animated images graphically depicting minors engaging in sex acts", "five-hundred-and-twenty-four (524) pornographic image files, most of which depict what appears to be teenaged females", and "more than eight-thousand files containing images child erotica involving younger children, many of them prepubescent", Kutzner admitted that he had knowingly received photographic child pornography "for at least eight years".

2011 Maine case
In November 2011, Joseph Audette, a 30-year-old computer network administrator from Surry, Maine, was arrested after his username was linked to child pornography sites. A search inside Audette's home resulted in "anime child pornography". Audette was never formally charged subsequent to his arrest; after he posted bail, a judge eventually lifted all bond restrictions placed on him.

2012 Missouri case
In October 2012, after being reported by his wife, a 36-year-old man named Christian Bee in Monett, Missouri entered a plea bargain to "possession of cartoons depicting child pornography", with the U.S. attorney's office for the Western District of Missouri recommending a 3-year prison sentence without parole.
The office in conjunction with the Southwest Missouri Cyber Crimes Task Force argued that the "Incest Comics" on Bee's computer "clearly lack any literary, artistic, political, or scientific value". Christian Bee was originally indicted for possession of actual child pornography, but that charge was dropped as part of a plea deal, and was instead charged with possession of the "Incest Comics".

See also
 Artistic freedom
 Censorship
 Freedom of expression
 Legality of child pornography
 List of pornography laws by country

Notes

References

Further reading
 

Category:Child pornography law
Category:Lolicon