Cartoon Teen Sex and the Law

I recently read a self-published comic book that contained explicit sex involving a 16-year-old character, 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 of 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 people and which never involved any real young people 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 right 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 value, 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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  1. I would point out that over the last few years, BL publishers (DMP in particular but BLU also) have become much less likely to fudge the ages of their characters. There's a healthy number of recent books which have stated-as 15 or 16 y.o. protagonists and also (moderately) explicit sex scenes (especially under the DokiDoki label, which draws from Dear+, a BL magazine aimed at junior high / high school readers), plus lots of high-school boys of unspecified age. If readers aren't afraid of being dragged into court for buying Cute Devil or Cool/Uncool, I don't think they're going to worry that much about the homegrown equivalent. On the other hand, "You can buy it at Borders" is a pretty good start on a community-standards claim, so small-press stuff is always at a higher risk.

    1. That's interesting to hear that you're seeing a trend in recent years with yaoi publishers showing explicit sex scenes with clearly identified 15-year-old characters. While a lack of fear on the part of readers doesn't give me much comfort—I think that's more about ignorance of the law than anything else—you make a very good point about community standards. If a reader or publisher can walk into a Borders and buy the same kind of explicit sex featured in the self-published book I read in another book (or ideally several other books) there, then that goes a long way to provide a defense against the Miller Test. (And I would say this is true even for the small presses who don't have their work in Borders; based on my understanding of this case, you just have to show equivalent work to have a defense.)

      Speaking personally, I was a bit concerned about my own comics, until I found a copy of Handjobs in several local Castro bookstores. If that content is OK, certainly anything in Tough is well within my community standards. At least I can be fairly sure the San Francisco DA isn't too likely to come knocking on my door. 🙂

      All that said, a couple counterpoints:

      1) The fact that this work is available nationwide and over the Internet makes the whole "community-standards claim" murky. Just because I could buy Cute Devil here in San Francisco in my local Borders doesn't mean that someone in Ovett, MS could do the same thing. And the PROTECT Act focuses on sending and receiving things through the mail and the Internet—thus the chance of it affecting folks outside of a single community, and in more conservative communities, is not trivial.

      2) The PROTECT Act has two provisions prohibiting showing underage cartoon sex and only the first one mentions obscenity (invoking the Miller test with its community standards prong). The second provision prohibits any "graphic" sexual intercourse or S/M content involving minors that fails the SLAPS test. I'm not a lawyer but reading provision 2 makes me think obscenity doesn't apply to that content thus community standards can't help you. Thus, I still think publishers and readers should realize they may have some legal exposure if they send, receive or transport material like that found in the book I read.

      As I said above, I think the PROTECT Act is bad law and I would love for it to be struck down by a great Supreme Court case. I absolutely think it should be legal to publish comics like the one I read. But I don't think we can just assume this law doesn't apply to us. The fact that it is so broad is one of many reasons it is bad law—along with the fact that it punishes victimless crimes and, as you point out, criminalizes material that most anyone can buy in Borders today.

      1. “The PROTECT Act has two provisions prohibiting showing underage cartoon sex and only the first one mentions obscenity (invoking the Miller test with its community standards prong). The second provision prohibits any “graphic” sexual intercourse or S/M content involving minors that fails the SLAPS test.”

        If I am reading the Handley court opinion (PDF) document correctly, the judge concurs with the defense that this second provision (section 2256 of title 18), which would criminalize material that does not involve actual minors and is not obscene under Miller, is unconstitutional, citing Ashcroft vs. Free Speech Coalition and the charges under that subsection were dismissed. This gives me faith that future courts would find likewise.

        And yes, the entire community standards thing is ridiculous; the idea that a product can be illegal to sell (based on preposterously nebulous standards) in some places but not others flies in the face of 21st century commerce and really makes no damn sense at all when applied to the internet. Obscenity law in general is a boondoggle, and the PROTECT Act combines that snarled mess with the ability to really destroy people. I heartily want to see it get struck from the books, but to do that will probably take some poor reader getting crucified over their comics; Supreme Court challenges don’t just drop out of the sky every day.

        1. Thank you for linking to that PDF. I would very much like future courts (and especially appeals courts and the Supreme Court) to find in a similar manner. This appeals court decision (PDF)—one of the few (if only) that have been made on the PROTECT Act (and which even seems to reject even plain text descriptions of sex with minors!)—gives me some pause. But like you, I have some faith that saner heads will prevail as these cases go higher up the food chain.

          And mostly likely that will indeed take some poor good-faith publisher or reader receiving some very bad treatment on the part of our government before that happens. I have to think one of the reasons the Supreme Court refused to hear Dwight Whorley's case was that he was convicted for possessing actual child pornography in addition to cartoons with sexual content. That fact muddies the waters and hardly makes him sympathetic. And I would expect that this law will mainly be applied to the least sympathetic and most powerless of our society—while maintaining a chilling effect on all creators and readers—until either someone is brave enough (and has the appropriate resources) to take a stand or the government is foolish enough to go after someone less reprehensible in the public view. Handley might have had a good shot at fighting the Act, but with a sick mother, etc., it seems the government was able to pressure him to give in, so he plead guilty and thus (as I understand it) no precedent was created either way.

          And yes, obscenity rules in general are just crazy. That something has to "appeal to the prurient interest" to be consider obscene—meaning be about sex—while images of decapitations and torture are protected speech, just goes to show how outdated and, frankly, childish these laws are.

          1. There’s a comic called “little butterfly” in my PUBLIC library and the boys in the book are at least 15. (Honestly protect at aside it should be banned under the “horrendously angsty and poorly written act.) And one of the boys acts and appears like a nine year old.

            Also “artistic merit” is total bullshit and purely subjective, i guess it’s so “timeless classics” like lolita can not be bothered by the rule.

            I doubt your book will be prosecuted if tokyo pop hasn’t, btw….is there a way I can read the whole book without downloading it.

    1. Thank you for linking to that essay – both interesting, to the point and kind of cool that a blogger did a bit of actual journalistic investigating. 🙂

      The more I read about the cases of those who are prosecuted, the more it seems like this law is mostly being used as a loophole to get to those suspected to be engaging in actual child pornography. That those who are prosecuted (and seem to inevitably plead guilty) have numerous images of actual children in sexual situations as well as the cartoon ones.

      In some ways, this is a small comfort for those of us who do not have anything to do with that kind of material. But I agree with Tom Spurgeon, it’s still bad law and rife for abuse:

      Go, Read: Follow-Up Article On Man Who Entered Guilty Plea For Owning Filthy Simpsons Imagery

  2. Well… This is certainly something I should know about now isn’t it…? If I’m going to be writing my series and publishing them, I should make sure I don’t get myself imprisoned for it. Thanks for the warning!

  3. So the amusing thing is in the Midwest especially in Kansas the legal age of consent is 16, but you aren’t considered an adult legally until 18. So what’s the right answer here? Especially with Fred Phelps running around with his graphic signs… Shouldn’t that be morally indecent? Sure he can say the “Freedom of Religion and Speech” But that is “In your own home.” Which… seems to be completely irrelevant it seems.
    I am beginning to believe that people are forgetting what is their business and what isn’t. Like the post master in the Handley case. What business did that person have to snoop through some one’s sealed mail if it had no signs of contaminates or Death threats? I don’t snoop through my next door neighbors maxims and play boys to see if he’s got bondage ones and say he’s a serial rapist.
    And though you defend the people trying to stop the pedos (which I’m not saying is bad) they also need to open their eyes. Overreacting at a drawing makes you closed minded. Close minded people only hurt the situation. They need a process or something. Like: Is it depicting a young person? Yes? Is it a photograph? No? Then it’s not a pedo, move on to the next problem. If they hadn’t been waving thier red flags so hard then Handly could’ve bene a normal guy, still a manga geek sitting at home watching bleach. But instead the whistle was blown so loudly it sparked the entire nation in a frenzy, which I see as an abuse of power (ever heard of the boy who cried wolf?)*sigh* It makes me worried, Gorge Carlin said “Rights are not given to you, if they are given they are “Privileges”, And privileges can be taken away” And I’m sorry, if I’m in my own home and order Tough and someone sticks their nose in my nose, I will gladly sue the shrewd person that apparently want’s to know what goes on in my own house. Behind closed doors. You will not take my right to what I want to read away from me. And if you want to have a shrink talk to me, they’ll find exactly what kind of person I am. A decent human being that happens to think the Japaneses tentacle porn is a great invention.

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