Following on from the Japanese Parliament passing legislation bringing Manga into the child protection (and paedophile) law, the UK Crown Court has convicted Robul Hoque, a 39-year-old UK citizen for possession of child pornography as a result of owning manga-style images and anime.
The case echoes many similar ones taken recently in the United States, despite concerns about the misapplication of the law.
- Officers searched Hoque’s home on June 13, 2012, and seized 288 still images and 99 animated images.
- Of the images seized, Hoque was charged for 20 of them. Hoque initially pled not-guilty, but took a plea for 10 of the charges.
- Hoque’s lawyer, Richard Bennett, argued that the images were not child pornography because they are cartoons.
- The defence that they were obtained from legal porn sites, that stated that they had licences was rejected.
- Similarly rejected was a defence that there “There’s no indication at all on the web page that these would fall foul of any legislation in a particular country” and has caused concerns for images of 18 and 19 year old teens taken off websites where the site has confirmed that all models are over 18 years old. Many online still images show girls who appear to be underage, but these are carefully selected images and an examination of the video or related images will show that the girl is clearly over 18.
- Before making his decision, Mr Justice Tony Briggs cited that “It is important to emphasise that there were no actual children or perpetrators involved” but regardless, Briggs sentenced Hoque, stating that “This is material that clearly society and the public can well do without. Its danger is that it obviously portrays sexual activity with children, and the more it’s portrayed, the more the ill-disposed may think it’s acceptable.”
- This is a worrying statement as British Judges must interpret the law and not impose policy. The Defendant was already a convicted paedophile having been prosecuted in 2008 for making six “indecent pseudo-photographs” of children.
- Photographs of actual child sexual abuse have not been found in Hoque’s possession in either the 2008 case or the most recent prosecution. In the 2008 case, Hoque was prosecuted under the Criminal Justice and Public Order Act of 1994, which amended the Protection of Children Act 1978 to include “pseudo,” or manufactured, photographs of children.
In the most recent case, Hoque was prosecuted under the Coroners and Justice Act of 2009 which redefined a prosecutable image as “a moving or still image (produced by any means)” that depicts someone under the age of 18. There are exemptions in the law for some film images, but there is no such exclusion for drawn depictions.
s62 Possession of prohibited images of children
(1)It is an offence for a person to be in possession of a prohibited image of a child.
(2)A prohibited image is an image which—
(b)falls within subsection (6), and
(c)is grossly offensive, disgusting or otherwise of an obscene character
(3)An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
(4)Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a)the image itself, and
(b)(if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
(5)So, for example, where—
(a)an image forms an integral part of a narrative constituted by a series of images, and
(b)having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
(6)An image falls within this subsection if it—
(a)is an image which focuses solely or principally on a child’s genitals or anal region, or
(b)portrays any of the acts mentioned in subsection (7).
(7)Those acts are—
(a)the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
(b)an act of masturbation by, of, involving or in the presence of a child
(c)an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
(d)an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
(e)the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
(f)the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.
(8)For the purposes of subsection (7), penetration is a continuing act from entry to withdrawal.
(9)Proceedings for an offence under subsection (1) may not be instituted
(a)in England and Wales, except by or with the consent of the Director of Public Prosecutions;
(b)in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
s65 defines the Meaning of “image” and “child”
s65 (3) states that an “Image” does not include an indecent photograph, or indecent pseudo-photograph, of a child (and this is because an “indecent photograph” and “indecent pseudo-photograph” are to be construed in relation to England and Wales, in accordance with the Protection of Children Act 1978 (c. 37), or the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)).
s65 (5) defines “Child” as a person under the age of 18 and s65 (6) states that where an image shows a person, the image is to be treated as an image of a child if—
(a)the impression conveyed by the image is that the person shown is a child, or
(b)the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.
and s56 (7) states that “References to an image of a person include references to an image of an imaginary person” and s56(8)states that references to an image of a child include references to an image of an imaginary child.
The legal revisions that resulted from the Coroners and Justice Act of 2009 were intended to address child advocates’ concerns over computer-generated images of child abuse so that it was not a defence to say that the image was not a “person” because it was computer generated, even though it looked and felt and appeared to be a “child’ or “person”.
and it would appear that Mr Justice Tony Briggs took the interpretation too far. It is however unlikely that Hoque being already convicted will appeal.
“This case illustrates how English law has evolved in that illegality is no longer limited to indecent photographs or pseudo-photographs of children or psuedo-children but can now extend to any indecent image depicting an any way a child under 18 years old and potentially outlaws family pictures taken on nudist beaches worldwide and has has blurred the lines of what can be deemed ‘legal’ images and created significant uncertainty. If a Judge can simply widen the law on grounds of morality, then the importation of modern sex dolls which appear to have children’s faces becomes illegal – what after that??? does the importation of modern sex dolls which appear to have body of a child become illegal (when it also mirrors the body size of oriental women?)…….the law must have certainty and this judgement does not help certainty!Anon Barrister
The English law effectively applies the U.S. counterpart: 18 U.S.C. § 1466A, which arose as a result of the PROTECT Act of 2003 and criminalizes “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting” that depicts a minor engaged in sexual activity, although it does not have the protection that the U.S. affords because US law mandates that the images in question must also be considered obscene as defined by the Miller test – this mandates that a work, taken as a whole, is obscene when it
(1) appeals to the prurient (e.g., shameful or morbid) interest in sex;
(2) portrays sex acts (as defined by statute) in a patently offensive way, &
(3) lacks serious literary, artistic, political, or scientific value.
The work must be considered as a whole, which means an image cannot be isolated, and all three parts of the test must be met for a work to be legally obscene.
In 2010, Christopher Handley, a manga collector in Iowa who had an encyclopedic collection that included thousands of manga and anime videos (all of which were confiscated and destroyed), was successfully prosecuted under PROTECT for possessing a handful of manga featuring “obscene visual representations of minors engaged in sexual conduct.” [As is common in the US, Handley took a plea rather than face a very intimidating set of charges and federal prosecutors, and the case was not properly argued nor were artistic advocates able to intervene].
In October 2012, Missouri resident Christjan Bee was sentenced to three years in federal prison for material the government described as a “pornographic cartoon, which depicted children engaging in sexual behavior.” Artistic advocates and first amendment activists have howered been involved in several legal actions involving similar allegations, successfully quashing the investigations before charges are brought.
Manga presents a further challenge for many prosecutors because of fundamental misunderstandings about the format, especially in Western countries. By definition, manga — and any drawn image — cannot be child pornography although Japan has recently outlawed new drawings of manga depicting manga children carrying out sexual acts.
This highlights the continuing debate of whether child pornography laws are to protect children from harm or are a purely moral stance entitling prosecution where no real person is being subjected to real harm.
It is important to know that constitutional protections are not self-enforcing. Law enforcement authorities or customs agents may have a different threshold for what they consider to be obscene, harmful to minors, or child pornography. For example, comic book purveyors have been prosecuted under “harm to minors laws” for furnishing (even inadvertently) young customers with titles that included a few panels of nudity, and references to (though not depictions of) masturbation. Such cases illustrate important issues in cases involving “harm to minors” laws.
Ryan Matheson Ryan Matheson was also arrested in 2010 by Canadian border authorities for child pronography consisting of a pair of manga images over the Canadian border even though these were images that were constitutionally protected comic book images (albeint on his laptop) in the U.S.
His sentence included a two-year period during which he was unable to use computers or the internet outside of his job, severely limiting opportunities to advance his employment and education as part of bail but at trial with the help of 1st Amendment advocates, Matheson defeated the charges.
It is argued that although the images that Hoque possessed were reprehensible, they shouldn’t be criminal because there was no evidence that any actual children were harmed as a result of the drawings; however the counter-argument is that their availability can be used to desensitize children and this make grooming more effective, but we are getting perilously close to criminalizing speech and thought, with this case….what’s next, a graphic verbal description of child abuse in a novel being made illegal????