I recently read a self-published comic book that contained explicit sex involving a 16-year-old characterâ€”something I wasn’t expecting when I picked it up. Originally, I mentioned that book by name in the following discussion, but the last thing I would want to do is cause undue attention and trouble to a young creator who had no idea she might be breaking the law, so I’ve removed mention of the specific details of that book from this post and the attached comments. What law am I talking about? The US PROTECT Act of 2003. It’s a federal law that most people have absolutely no awareness ofâ€”and here is where I feel a bit… protective myself of my fellow yaoi self-publishers and their readers.
Among other things, the PROTECT Act punishes with jail time
Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that–
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(A) depicts an image that is, or appears to be, of a
minor engaging in graphic bestiality, sadistic or masochistic
abuse, or sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of
the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
and follows that provision with the provision
(c) Nonrequired Element of Offense.–It is not a required element of any offense under this section that the minor depicted actually exist.
(You can read the complete text of the Act here. And FYI, the circumstance referred to in “subsection (d)” mandates that the offending work be sent or was intended to be “communicated or transported” across state lines via any method including computer or be sent/received via mail even within a state. Obscenity is defined in the U.S. by a failure to pass the three-pronged Miller test. And yes, a “minor” is any character under the age of 18, including as part of a story involving two 17-year-olds engaging in consensual sex.)
Now, I’m going to lay my non-lawyer cards on the table here and state for the record that I think these provisions in the Act are examples of crazy bad law that protect no children and are, in fact, unconstitutional. That prohibiting cartoon images involving no real young peopleâ€”and which never involved any real young peopleâ€”is punishing fantasy and imagination and thus is essentially creating a class of thought-crimes. It spits in the face of the First Amendment using the inflammatory rhetoric of protecting children to punish unpopular speech. I will also state that I have a horse in this race because I am writing a graphic novel that involves a 15-year-old hero and it is likely that he will engage in “sexual conduct” before the story is finished.
That said, I’m confident the work I’m creating is not pornographic and thus, while I’m not writing War and Peace here, I’m also fairly confident that Mike’s story would be considered something with “serious literary or artistic value” by a reasonable judge, for that reason not be considered obscene and thus that the PROTECT Act would not apply to me. Don’t get me wrong, I certainly have no desire to go through the expense and hassle of a Federal trial to defend my right to create Tough, but if it comes to that, I will fight and I have every belief that I will win.
But did the publishers of the book I read feel that their explicit comic also had “serious literary or artistic value” and would not be considered obscene? Were they aware that if they were prosecuted and their book failed the Miller test, then their only recourse (short of a plea bargain) would be to challenge the constitutionality of PROTECT Act itself, most likely all the way to the (now rather conservative) Supreme Court? Are the readers who have ordered this book aware of their exposure to this Act (or to a similar Act in Canada and elsewhere)?
I suspected the answer was no. I suspected that most likely the publishers of that book and certainly the majority of their readers hadn’t given much thought to their exposure to these laws at all. And why would they? Less than 1000 copies of the comic was printed, the story itself was just a silly fantasy involving no actual 16-year-olds, those provisions in PROTECT Act are stupid, idiotic, unreasonable law that no one would assume had any reason to exist and the book itself was being published by very lovely young people who certainly wouldn’t have any interest in harming kids nor the funds to run each comic by a legal team before putting it out there.
And as it turned out, after speaking with the publisher, I was rightâ€”she wasn’t aware of the risk at all. And as for the readers, well, perhaps this post can help make us all more aware of the current, badly broken law.
Now let me state the obvious here: I’m not a lawyer and as this law in the U.S. has barely been tested, things are murky: on the one hand, U.S. Code seems to focus mostly on whether the images are indistinguishable from actual children, specifically exempting cartoons; on the other hand, we have defendant Dwight Whorley convicted and losing an appeal for possession of anime images of underage girls (PDF) (he also was convicted for possessing child pornography involving actual children; the Supreme Court refused to hear his case. That whole PDF I just linked to is actually worth reading if only to see how broadly the PROTECT Act can be interpreted by very reasonable sounding judges.) Also, the comic I read may very well be deemed to have serious literary or artistic valueâ€”I’m certainly not claiming that it doesn’t. Nothing bad at all might happen to the publisher or its readers, there’s no reason for me to think a DA would take a particular interest in this book, its publisher or its readers, and I’d trust your own lawyer over my blogger concerns any day.
But this law is on the books. People have been prosecuted under it. And that’s something any publisher, small or otherwise, should be aware of and it should at the very least inform their choices and actions. (And why all of us should be supporting the Comic Book Legal Defense Fund.)
Overall, I think it’s fantastic that high quality yaoi is being self-published by Western yaoi creators. I feel proud to include myself in their number. Mainstream publishers, even small ones, can be cautious, conservative and slow; self-publishing gets rid of all the bureaucracy which can pressure creators to compromise their visions. As an artist, being able to realize your vision without limits is often a good thing.
But sometimes there are good reasons for caution and if we’re going to distribute our work to hundreds or thousands of readers, we as self-publishers need to be aware of those reasons. We might still choose to put that work out there, but at the very least we’ll be doing so knowing what the consequences might be. We can then take appropriate actions based on that information (including content warnings for our readers), and thus protect ourselves and our fans as best we can.
The PROTECT Act is designed to create a chilling effect for legitimate, yet unpopular free speech. This sucks and the last thing I want to do is encourage folks to give in to unconstitutional pressure. But it’s important that everyone involved knows what they’re getting into.
Create awesome yaoi. Buy awesome yaoi. But protect yourself so you can do it all over again.
ADDENDUM: This isn’t the first time I’ve talked about this issue. The last time I did so (about the Christopher Handley case), a commenter felt strongly that those who are prosecuted for reading comics that include minors engaging in sexual activity (shota and loli, in particular) deserved what they got. I wound up writing a mini-essay defending the right to engage in unpopular speech in response. Because this is a point that often comes up, I thought I’d include the text of my response here in the hopes of helping to move the discussion forward:
Robyn, thank you for your thoughts. While I don’t presume to speak for everyone who is troubled by this prosecution, I don’t think your experience of shota & loli would be all that different from that of most of those who feel that the government has overstepped here. Personally, I don’t care for shota or loli. Not being a medical or psychiatric professional, I would not use words like “sick” to describe those materials but I often find what I’ve seen of shota/loli to be very disturbing. I’ll never be a fan.
But that’s not the point here. We live in a country founded on rights. One of those rights is the right to free speech. In order for rights to have any meaning, they must represent a special claim against the majority. Even if a view is tremendously unpopular, that cannot be the basis on which to suppress it. The fact that something turns our stomach — that we think it is “crap” — is not enough. If we truly are to value free speech, then we have to allow the dissemination and viewing of things we dislike so much we want to call it names like “sick” and “crap”. Otherwise, it is not a fundamental right — it’s merely a permission granted by the majority that can be revoked based on current tastes at any time.
If we are to suppress speech — and of course I am using the term “speech” here to mean anything publicly communicated including anime and manga stories — we need a much more compelling reason, usually one that involves the serious endangerment of other fundamental rights, such as the right to personal health and safety. The classic example of unprotected speech is shouting fire in a crowded movie theater — the very real risk of immediate physical harm is clear and difficult to deny and it’s fairly easy to see that it outweighs the harm in suppressing that speech. Likewise, threatening to murder someone also falls outside of protected speech for similar reasons.
But in the case of shota and loli, one is forced to ask, who exactly is being harmed? The reason child pornography is so heinous isn’t because people take “great offense” — we’re a cranky species, people take great offense at a lot of things — rather it’s because child pornography involving actual children has clear, awful and often lifelong consequences for the real children involved. This is why even though there is plenty of pornography that falls under the classification of protected speech, no form of child pornography does. The clear, actual harm to real, living young people is just too great — their right to safety and health far outweighs the pornographer’s right to free speech. But if no actual children are involved in the making of a shota/loli manga — and the work is only viewed by consenting adults — you can’t make that argument.
Of course, you might try to claim harm through indirect means. You could argue that those who view shota/loli are more likely to be encouraged to eventually act out their fantasies with real, live children. But this is a question of fact that must be proven — and it’s my understanding that there is little evidence to support this even with pornography involving actual children. (PDF) You might also argue that shota/loli manga could be used by pedophiles to seduce minors into believing that underage sex is appealing and thus its possession might be harmful in that way — as a means to “groom” young people. But just because we can picture a potential possible misuse of a literary work is not sufficient justification to prosecute those who own it. I might potentially choose to beat a flight attendant over the head with my copy of War & Peace, but that doesn’t mean that the TSA should be detaining me for packing Tolstoy in my carry-on.
Now if we can establish through factual evidence a clear connection between owning shota/loli and actual harm to real children or adults, then yes, we would absolutely need to take action in spite of the right of free speech. But that doesn’t seem to be what’s happening in Handley’s case. What seems to be going on is that a handful of materials that Handley owned turned the stomach of a postal inspector and an overzealous DA. And instead of doing what you choose to do — which is to do your “absolute best to avoid that crap like the plague” — they chose to arrest him and expose him to great legal expense and potentially years in prison.
Now you might say “Good for them! Anyone who likes that stuff deserves what they get!” But we live in a diverse country. Is there nothing in your library that those in power could take “great offense to”? There were many people who felt not only that the Harry Potter books were “crap”, but that they were actively, perniciously satanic and evil. Being in the comfortable majority who do not agree with that view, we might smirk at those people, comfortable that we are safe from any prosecutions they might lobby for. But at least for me, as a gay man, I am fully aware it was not that long ago that people like me could be arrested, incarcerated and institutionalized for owning erotic material that turned the stomachs of those in power. Even though everyone involved in the making of those erotic materials would be consenting adults — even though that material would be owned by a consenting adult for use in the privacy of his own home — that didn’t matter. What mattered is that those in power thought it was “sick” — and so they were going to enforce a “cure”.
And this is why I feel this is a battle worth fighting. Not because I think you or President-Elect Obama or anyone else should develop an affection for cartoon kiddie porn. But rather because it is not right for my government to be prosecuting its citizens for owning drawings that harm no actual living beings.
I doubt anything I say here is likely to convince you that Handley is being unfairly prosecuted. But when you do argue against this issue, it’s important for you to remember why people like me think it’s important. Not because we approve of what Handley was reading, but rather because we find it dangerous for the government to arrest its citizens for owning “child pornography” that never involved any actual children.
No, I might not want to have a beer with Mr. Handley, but I certainly am not so naive to think that what the government is doing to him could never happen to me. It’s not about whether we approve of any particular genre, it’s about government abuse of power. And if there is any way that the new administration is relevant to this discussion, it’s in the hope that we might just see a little bit less of the latter…
Anyway, hope to see you and any number of tits you’re willing to give here again sometime. Our High School BL story “Tough” might be a bit young for you, but the characters in “Artifice” are all full-on grown-ups, both hunky and sweet. Perhaps we can get you on the side of that.
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- Read about the PROTECT Act case that brought this law to mainstream comics attention, the Christopher Handley case in my post How To Keep Manga Fans Out Of Jail!
- Curious about the legal issues facing creators, retailers and publishers who publish work with mature themes? Then read Why Comics Need Age Ratings!
- Want to read reviews of yaoi books that might or might not get your own butt throw into jail? Take a look at our in-depth Yaoi Reviews!
- Interested in creating your own manga designed to piss off The Man? Start with How to Write a Full Comic Book Script and How to Find the Perfect Yaoi Artist for your Graphic Novel!
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