For those of you who don't want to (or can't) click through to the original article, let me summarize: in 2006, a (now) 39 year old Iowa manga collector named Christopher Handley ordered half a dozen volumes of "lolicon" manga from a retailer in Japan. They were intercepted by a US Customs Service inspector, and Handley was charged with importation and possession of child pornography, specifically "possession of any type of visual depiction, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct that is obscene." Yesterday, on advice of his attorney, he plead guilty to all charges. He faces a prison term of up to 15 years, a fine of up to $250,000, plus 3 years probation, and he will spend the rest of his life listed on the convicted sex offender registry.
No, we don't know what books he ordered, but according to the US Department of Justice press release ("Iowa Man Pleads Guilty to Possessing Obscene Visual Representations of the Sexual Abuse of Children", 5/20/09), "in May 2006, U.S. Immigration and Customs Enforcement (ICE) intercepted a mail package coming into the United States from Japan that was addressed to Handley. Inside the package was obscene material, including books containing visual representations of the sexual abuse of children, specifically Japanese manga drawings of minor females being sexually abused by adult males and animals. Pursuant to a search warrant, the U.S. Postal Inspection Service (USPIS) searched and seized additional obscene drawings of the sexual abuse of children at Handley’s residence in Glenwood."
I will also tell you that either Handley's lawyer Eric Chase is either grand-standing, or else he's flatly incompetent to practice First Amendment law, if it's true that he told Wired, "It’s probably the only law I’m aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can’t tell them." Lawyers who specialize in obscenity cases, both pro-civil-liberties and anti-pornography, track jury verdicts and can tell you with nearly 100% reliability whether what they're looking at would be ruled obscene by a jury, and yes, I'm telling you right now, no jury has ever not indicted and convicted for visual portrayals of children having sex. The same is equally true of equally graphic portrayals of bestiality, necrophilia, urolalia, scat play, rape, or simultaneous sex and torture. To anybody who actually knows what they're talking about, this isn't even controversial, and if Eric Chase didn't know that, and didn't research the case law enough to know that, Handley had an idiot for an attorney. Or, alternatively, he does know it, but is counting on you not to know it.
If Handley had a case, that case would have depended on an "artistic merit" defense; under US obscenity law, no image is obscene if it has "serious literary, artistic, political or scientific value." (1973 Miller v California.) The Comic Book Legal Defense Fund says that they consulted on the case and lined up expert witnesses to testify to the artistic merits of "lolicon" manga. Apparently Chase, and Handley, concluded that the jury wasn't going to buy it. They may well be right; at least one past jury in a high-profile, well funded, well defended case made it clear that if the subject matter is offensive enough, they don't care how famous the artist is or what the critics say about the importance of the work, it's still obscene.
Told you so. Lots of you didn't believe me, but I did tell you.
P.S. Note the date of the interception of Handley's manga. The US Customs Service, and presumably thereby the US Postal Service, have known what retailers in Japan sell this stuff to American buyers for at least three years. Can your library survive a search warrant? If not, you've got work to do. Hope you own a cross-cut paper shredder and an indoor fireplace. Otherwise, you're betting the rest of your life that they won't pick you to be the next person they make an example out of.
You might keep being lucky. There are a lot of lolicon manga collectors in the US. Only one of them has been convicted, so far. Is it worth it to you to keep betting those odds? If so, be my guest. But if you are going to do so, may I politely suggest, not as a lawyer but as someone who studies the history of these things? Shut the hell up about it. Tell no one, especially not through an online email service or web forum or blog, no matter how good you think your anonymity is (because it isn't), that you are doing so. Because that's just asking for it. When prosecutors are looking to hand out search warrants, people who brag about their crimes in public are the first ones they target.
Unless, of course, you have a martyr complex and want to be a registered sex offender for the rest of your life, because taking a stand As a Matter of Principle is that important to you. If it is? Again, be my guest. If you're that determined to be a martyr, though, don't expect me to stand up for you.
P.P.S. Every time I write about anything like this, people think I'm standing up for the law or defending the prosecutors. I'm not. If it were up to me, you could collect drawings (or even pictures or movies) of anything you want. I don't write this stuff because I'm anti-porn, or anti- any "Forbidden Lore." I write this stuff because ignorance of the laws you live under appalls and offends me. I write this stuff because I'm tired of self-entitled idiots who've never participated in democracy in any way stubbornly and naively insisting that the law is whatever they want it to be, that juries have to agree with them about what should and shouldn't be legal.
If you want to enjoy an illegal hobby, it behooves you to know the law and your chances of acquittal if you're caught. If you want your illegal hobby to be legal, you've got work to do. Saying stupid crap like, "yaoi and hentai and lolicon manga are entirely legal because they're just lines on paper" doesn't make it true, it just makes you someone who doesn't know what he's talking about. If you want all lines on paper to be legal, your nearest ACLU would love you to donate and volunteer. You're not going to achieve that goal by whining about it in your LiveJournal, nor on mine. I'm just saying.
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On the other hand it's a heavy handed and gross abuse of legal authority. An obscene comic book is a victimless crime. So my mirth at the decision really isn't worth an innocent man being treated like a criminal.
This is true only if you view a guilty plea the same as a conviction, and the particular works in question as all the manga that's ever been created (or even a representative sample).
I'd like to underline and emphasize that sentence by quoting it. It should be the takeaway lesson from this post. Rule #1 of being a deviant of any kind: learn to avoid attention from The Police (including but not limited to the badge-wearing kind).
Moving away from the principal text of the post into related matters: While civil society as a whole could definitely stand a lesson in "bringing the police and the courts into a matter is the last resort," it's especially important for anyone far enough out of the mainstream that their lifestyle has consequences. This includes many people who, in a sane society, could indulge themselves without harming anyone or being bothered in turn. We ain't there yet. Fighting for a saner society is great - but it's mean-spirited and counterproductive to cast aspersions at people for doing what they have to to survive instead of Fighting The Good Fight. So, I suppose this is to second the ACLU-volunteering recommendation. The EFF, too, is perennially strapped for resources, and so is MAPS.
I've often wondered about the application of the child porn laws (which, after all, are supposed to protect actual victims of sexual abuse) to lines on paper or ink on cells (anime). If the manga or anime itself is 18 years old or older, does it become legal?
For the record, I am a 20+ year member of the ACLU and a 1st amendment activist. It's sad but true that the ACLU is very reluctant to defend anything remotely connected to pornography these days, even when the real legal issues are not about the content as much as about the questionable methodology used in bringing prosecutions (venue-shopping, entrapment, etc.).
And the chance for appeal doesn't really prevent your life from being ruined.
Short answer is "no".
Complete answer requires more characters than LJ allows in a comment.
It's not an obviously implausible hypothesis. But it's far, far from proven, and that's putting it mildly. It's a difficult subject to study because accurate data is very hard to come by, and meaningful experiments are hard to design, let alone carry out. Simplest possible experimental question: if you control for other relevant variables (like amount of private access to other people's children), are more children molested in Japan, where this stuff is legal, than in America, where it's not? We could compare reported rates of child molestation in the two countries, but do the Japanese investigate child molestation in the same way we do? I don't think so. That question would also treat "is illegal" as a proxy for "is less widespread," and I don't know that that's true, either, in the Internet Age.
In the absence of demonstrable facts, the voters are voting their feelings and gut instincts, and their gut instincts tell them that keeping these pictures and movies and even stories out of the country will reduce child molestation rates, and since those same voters consider this stuff really, really gross, they don't think it's a high cost to pay to protect those children.
I think they're full of crap on all premises. But, then, I can't prove my position, either, now, can I?
There is one part of the fallout from this that I can easily identify as the most upsetting to me though, and that's the reaction of some people. No matter where I see commentary on this case, and others like it, there are a lot of people who claim things like "I'm all for the first amendment and free speech and all that, but this sort of stuff is wrong, and shouldn't be allowed."
When I hear people say something so insufferably ignorant, I have problems breathing.
This makes me want to smack the lawyer. Hard. It's not the easiest defense to make, but the alternative is no defense other than "Are those kids? I can't tell." The JURY can tell and they aren't going to believe you.
The law is as you said and it's repeatedly been held to constitutional. The only recourse once a court has found a law to be validly passed and valid is a political solution. You have to lobby the legislature to change the law. The laws about materials that show imaginary children, rather than real children, are somewhat idiotic. They don't hurt anyone, unless it's hurting the morals of the person viewing it. (And adults should be permitted to mind their own morals, thank you.) The problem is that no one is willing to stand up for perverts who want look at pictures of (fake) children having sex. Who is going to lobby Congress on this? No one. What Congress-critter will vote to change the law? None of them.
Go figure on that one.
That is complete and total bullshit! For a crime to be committed there has to be a victim. A drawing cannot be a victim. Maybe if the guy was sending/showing the stuff to kids, they might have a case.
This is not justice, it's totalitarianism.
You are wrong on the facts. There are many, many so-called "victimless crimes" on the books.
To do something prohibited by statute, or to fail in a duty imposed by statute (such as maintaining automobile insurance if you drive, or stopping at the scene of an accident in which you were involved), is to commit a criminal offense.
No victim is required. While intent is often an element of certain crimes, and may increase the seriousness of an offense, many crimes do not even require intent.
I suggest that you Google 'totalitarianism.'
FWIW, I don't like lolicon, but:
Saying stupid crap like, "yaoi and hentai and lolicon manga are entirely legal because they're just lines on paper" doesn't make it true,
Sure, saying it doesn't make it true, but Supreme Court rulings like Ashcroft v Free Speech Coalition do appear to make such statements true. And the dicta in US v. Williams seems pretty clear that the government cannot outlaw selling or purchasing such lines on paper either, so long as it's clear that you're not trying to sell or purchase footage of actual children being victimized.Granted, US v Williams was after this customs interception, so the prosecutor probably thought he was doing the right thing, at least at the start, but I see no reason why this ruling shouldn't get thrown out on appeal.
The legal consensus today, going all the way up to the US Supreme Court, appears to be: if kids are harmed to make your pictures, it's illegal, if real kids aren't involved (eg. loli), or if kids aren't harmed (eg. legitimate photos of nudism), it's legal.
They're not appealing, though.
That it was inspected at all leads me to believe that this was something they were already on the lookout for -- either from the japanese company or in mail to this particular person receiving the package.
I find it very unlikely that the prohibition of simple possession would have withstood Supreme Court scrutiny if Mr. Handley had had the resources and will to take his case that far, given Stanley v. Georgia ("If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch") and Ashcroft v. Free Speech Coalition.
Then again, the guy's life is totally ruined either way, so it's a toss-up.
You're wrong about the jury instructions in such cases; the jury instructions would have been more or less straight out of Miller: because a determination of whether or not something is obscene is a factual determination, and determining disputed facts is the fundamental prerogative of an American jury.
But having plead guilty, he's basically stipulated that the prosecution is correct, and therefore the "facts" are not in dispute in his case any more, both the prosecution and he agree that the works in question were legally obscene.
Osborne v. Ohio held that mere possession of child pornography--unlike obscene material per Stanley--could be outlawed because of the state's interest in preventing the exploitation of children in making child porn. However, it's pretty clear that this reasoning does not apply to drawn and written material (and I'm not being glib here, the Court said as much in Ashcroft v. Free Speech Coalition--they didn't cite Osborne but they did cite New York v. Ferber, an earlier decision that allowed states to ban the sale of child porn)
I've seen a few claims on the net that "Stanley v. Georgia is old law that was invalidated by Miller" but that seems to be incorrect; in addition to Miller and Ferber, the Supreme Court also directly cited Stanley in the Ashcroft v. Free Speech Coalition decision.
However, even assuming as I am that Stanley v. Georgia invalidated the "possession" charges, this guy would still be fucked for importing the obscene manga; I'm guessing that's why his lawyer advised him to plead guilty. (Also, he didn't "plead guilty to all charges"; there was a plea bargain)
If you want to make a post about the pragmatic issues surrounding this issue, fine.
If you want to make a post about the Constitutional Law issues surrounding this issue, that's fine too.
It's when you mix the two that it becomes understandable that people feel you're "standing up for the law or defending the prosecutors" any time you "write about anything like this." I think they choose to believe that because, frankly, it's a more charitable interpretation of your posts than that they are written "because ignorance of the laws you live under appalls and offends" you, because you're "tired of self-entitled idiots who've never participated in democracy in any way stubbornly and naively insisting that the law is whatever they want it to be, that juries have to agree with them about what should and shouldn't be legal."
Fact is, I think those people hope the judge never lets a jury consider whether it's legal or not--I've never heard of the Constitutionality of something being a matter for the jury to decide. I believe people look at your links and think any judge would decide that no reasonable person could decide that this material lacks serious literary, artistic, political or scientific value and would never allow the question to even reach the jury.
If your motivation is to lord your superior knowledge of U.S. law over people, that's fine--just don't complain when people who consider your posts to be those of someone interested in informing them as opposed to someone getting their rocks off using their superior knowledge of the counter-intuitive nature of Constitutional Law, don't complain if those people get their feathers ruffled.
Then again, if you're posting with the mood "smug" about someone's life being ruined and the state of the law being what it is even if it were up to you, they "could collect drawings (or even pictures or movies) of anything" they wanted, I think you're enjoying the fact that people are disturbed. Which, frankly, is far worse than if you *were* actually "standing up for the law or defending the prosecutors." I think it would be far more acceptable to people to find that someone was smug about their moral beliefs being vindicated, than to find that someone was smug about their moral beliefs being frustrated but their superior knowledge about the state of the law being vindicated.
At least if you were "standing up for the law or defending the prosecutors" your smug mood would be the result of feeling the world is a better place; it's kind of ugly to be smug about the world being a worse place as long as what makes the world a worse place gives you the opportunity to feel superior to "self-entitled idiots" that happen to know less about how a flawed system works than you do.
This is funny. A good distraction from the days work.
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however this has been a very informative post.