Down the Slippery Slope - The Crime of Viewing Manga

Tags:
Down the Slippery Slope - The Crime of Viewing Manga
© 2009 Lawrence A. Stanley

fus-si01

On March 30, 2004, when Dwight Whorley found the Japanese website of Fractal Underground Studio via Yahoo and clicked on a couple of the thumbnail images, he thought he had found what he was looking for: images that weren't child pornography by the legal definition, but which nonetheless expressed the ideas he wanted to see illustrated: sex between adults and minors. They were cartoon figures, inked in a clumsy style. There was nothing real, and no one was hurt. No one could mistake them for anything other than the cartoons that they were.[1]

Unfortunately for Whorley, he wasn't at home, but in the public resource room at the Virginia Employment Commission, where he was supposed to be looking for a job. A woman saw what he was looking at and informed a supervisor that he was viewing child pornography. Believing the material to be legal, Whorley showed it to the supervisor and was promptly escorted to the door. He didn't even have time to close his e-mail account.[2]

Shortly thereafter, law enforcement officials seized twenty emails (containing only words, no images) detailing fantasies of sex with minors. Only one email was sent by Whorley; the rest he received from a third party. Investigators also discovered that he viewed online 15 images of naked children from an Illinois website called "Logical Reality."[3] As if all this weren't enough already, Whorley was still under post-conviction supervision for the crime of downloading child pornography in 1999, a crime for which he served three years and four months in jail.[4] It could easily be predicted that he would be shown no mercy.

For the act of "receiving" the cartoons, or more specifically, for printing out three of them at the public resource room[5] and purportedly viewing the rest online - the images were in the computer's cache memory and no one could say for sure whether Whorley saw them for five minutes or one second or not at all[6] - Whorley was charged under two statutes: 18 U.S.C. Section 1462, an obscenity statute harking back to 1873, and 18 U.S.C. Section 1466A, a provision passed by Congress in 2003.[7]

The prohibitions under Section 1462 - which makes it a crime to use an "interactive computer service" to "take or receive" any "obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character" - were enough to convict Whorley, but under that section there is no minimum jail term.[8] So, in addition, the government charged him under Section 1466A, "Obscene visual representations of the sexual abuse of children." Section 1466A imposes precisely the same penalties that apply to images of hard-core child pornography showing real children.[9]

Paragraph (a)(1) of section 1466A criminalizes the production, distribution, receipt and possession with intent to distribute of  any obscene visual depiction, including a drawing, cartoon, sculpture, or painting, which "depicts a minor engaging in sexually explicit conduct." Section (b)(1) purports to criminalize the private possession of such representations. "Minor" means any person under the age of eighteen and "sexually explicit conduct" is defined as in the child pornography statute: "actual or simulated" acts of sexual intercourse, oral and anal sex, bestiality, masturbation, "sadistic or masochistic abuse," or "lascivious exhibition of the genitals or pubic area of any person."

Despite the application of both child pornography definitions and sentencing standards to Section 1466A, obscenity is not the same thing as child pornography. An item is child pornography only when it depicts an actual minor engaged in sexually explicit conduct, regardless of the conditions under it is made, the quality or character of its portrayal or the mores of the community in which it is found.[10] (For this reason "virtual child pornography" is not child pornography at all under the law. It is an oxymoron.) By contrast, an item is obscene when a jury finds it so after applying the three-pronged test devised in 1973 by the Supreme Court in the case of Miller v. California.[11] To be clear, "obscenity" is not synonymous with pornography, but a tiny sub-category of it, which, in one jurisdiction or another, is found by a jury (or a judge acting in a jury's stead) to be illegal. Nothing, not even pornography, is presumptively "obscene." It must be judged so in a court of law. Here is how the U.S. Department of Justice describes that tri-partite obscenity test in Miller in its "Citizens' Guide to Federal Obscenity Laws":

- Whether the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and

-Whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

- Whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[12]

It was in the hopes of avoiding the effort and expense of going through this test that Congress included two additional provisions in Section 1466A: paragraphs (a)(2) and (b)(2). These criminalize production, distribution, receipt, possession with intent to distribute, and private possession, but eliminate the first two prongs of the Miller test.[13] These two provisions were not applied to Whorley. The government left them for another day.

On March 6, 2006, a jury found Whorley guilty for "receiving" obscene cartoons. It also found him guilty for receiving child pornography (the photos of naked minors[14]) and obscene emails. However, for the cartoons alone he was sentenced to 20 years in prison, with a 10-year period of probation thereafter, a sentence which was upheld on appeal last December by the 4th Circuit Court of Appeals.[15] Had he not been previously convicted of receiving child pornography, his sentence would probably have been much lower, but under 1466A the sentence for the first-time receipt of even a single image is, in any event, "not less than 5 years and not more than 20 years."[16]

Given all the qualifying facts in the Whorley case, one might ask, why should anyone care? Setting aside questions of fundamental justice for the moment, the answer is: because cartoons and drawings aren't child pornography and should not be treated as such under the law. The moral slippage in the law is palpable in the way it conflates images of actual minors with fictional representations: it refers to "depictions of minors," and, by reference to the other provisions in the law, defines acts engaged in by "persons,"[17] but how is a cartoon character a person? It talks about engaging in sexually explicit acts, but how does a cartoon character engage in anything? It defines "actual or simulated" conduct, but how can a cartoon character's conduct be "actual"? Ultimately the law denies the reality that these are not "depictions of minors" at all but pure fantasy. One should care about this case because United States v. Whorley was a testing of the waters. With Whorley behind bars, some people in the government believe they have a mandate.

Christopher Handley's circumstances were vastly different from Dwight Whorley's when law enforcement officers followed him home from the Post Office on May 23, 2006. He had just picked up a package from Japan containing manga. A thorough search of his home turned up only more of it: some 1200 magazines, hundreds of DVDs, laser discs and videotapes, and an untold number of images on computer, but no child pornography or even images of nude minors. Handley was a collector of manga, not lolicon, and the vast majority of the manga and images he possessed contained no fantasy representations of minors at all.[18] The fact that a small amount of it represented fictional pre-pubescents and fantasy portrayals of sadomasochistic or violent sex, however, meant that Handley faced a sentence ranging from a minimum of 7 years and 3 months in prison to a maximum of 9 years.

What does a small amount mean? By the government's count, he received or possessed more than 150 but less than 300 such images in total. Not 150 to 300 magazines, but cartoon pages with one or more panels or individual jpgs. (The precise calculation of his sentence is outside the scope of this article, but each factor of the offense - the number of images, whether an image can be considered to represent a prepubescent, whether sadomasochistic conduct or bestiality are portrayed - is quantified in the United States Sentencing Guidelines.)[19]

At first, things looked good for Handley. He was charged under Section 1466A both for receipt and possession of manga,[20] but it took the government almost a year to hand down an indictment. When it did, he was released on his own recognizance shortly thereafter. The conditions of release were typically onerous, but not impossible. Among them was the requirement to turn over the contents of his computer to the government; to agree to have periodic unannounced searches of his computer "for child pornography" and unscheduled visits from government officers; to undergo periodic drug testing; to restrict his movements to the State of Iowa and two counties in Nebraska; and to "seal and not access the printed and computer media materials released to him by the government of a sexual nature."[21] (Presumably this was a large quantity of material that the government decided it didn't want to keep once the case was over, but didn't want him looking at while the case was pending.)

Then the government went to work on him. In July his Pre-Trial Officer tried to send him back to jail, claiming that he had "ongoing access to material that represents the sexual abuse of children." The officer's report demonstrates just how expansive (and possibly clueless) a view some people in the government take of the statute in question. It reads as follows:

gothiclolitabible1

He is regularly visiting sites that contain Anamie [sic] art.

There is concern at this time as the subject matter contained information relating to the "Gothic and Lolita Bible." Portions of the information accessed were as follows:

A DVD advertisement - GaoGiaGar: King of Braves - with the quote, "Unlike Godanner, GaoGiaGar isn't aimed at those fans that have grown up and developed a taste for extreme fan-service and romantic drama; its aimed at the fans that never grew up at all. Don't hide it you know who you are....  [The government thinks these are code words for pedophilia.]

In addition were DVD titles of:

All Sex Hentai, Angel Core, Sexy Freedom Fighters, Girls Locker Room Lust, Forbidden Love, Moral Hazard, Natural Obsession, Perverted Thomas, University Girls "Special Counseling."

Other websites accessed were www.animesuki.com, www.animenewsnetwork.com, animenation.com, animenfo.com, ads.animesuki.com.[22]

As a result of the report, the district court prohibited Handley "from viewing or accessing anime on the Internet," from "ordering anime video and written material," or from "engag[ing] in Internet chat." The latter condition would have the effect of preventing Handley from informing others about his case and preparing his defense, but pre-trial detention would have been even worse. Finally, Handley was ordered to "participate in mental health counseling with a licensed mental health therapist of his choice" and to authorize the therapist to inform on him if s/he determines that Handley "is a danger to himself or others."[23]

Things got even worse a year later when Handley's lawyers filed their Motion to Dismiss. Contrary to 35 years of jurisprudence and with the kind of logic that defines torture not to include waterboarding, Judge James E. Gritzner, a legacy of George W. Bush, ruled that the government could proceed under the possession charges. This may sound like a harsh characterization of Judge Gritzner's decision, but it really did come down to one simple sentence of doublespeak:

Thus, while an individual has a limited right to possess obscene materials in the privacy of his own home, there exists no right to ... possess obscene materials that have been moved in interstate commerce...."[24]

In comparison are the unambiguous words of the Supreme Court from the 1969 case, Stanley v. Georgia:

But we think that mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. 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. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. [Emphasis added.][25]

There is also the United States Department of Justice's own public statement regarding possession from its "Citizens' Guide" quoted above:

While the mere possession of child pornography is a crime, private possession of obscenity is not...

The DOJ site contains no weasel words and no exceptions for possession of materials that were shipped, or which used paper and ink that were shipped, in interstate commerce. This clear declaration certainly raises the question of the government's good faith in charging Handley for possession in the first place.

Perhaps to his credit, Judge Gritzner did strike down as unconstitutional the two paragraphs of  Section 1466A which tried to sidestep the Miller test,[26] but that determination made absolutely no difference to Handley, as the government had hedged its bets by not specifying which provisions it was proceeding under. In the final analysis, only striking down the possession prohibition would have possibly benefited Handley, and then probably by only a few months. It should come as no surprise to learn that Handley has negotiated (but, as of this writing, not yet entere) a guilty plea in the hopes of receiving a lower sentence.

kodomo-no-jikan-ch1-001-am

How far will the government go? How about the somber work of Hiraku Machida, or Suehiro Maruo's DDT or Rose Colored Monster, or Liberatore's Ranxerox? What about the art of Trevor Brown, or any of the publications or websites mentioned by Christopher Handley's probation officer? What about Kaworu Watashiya's Kodomo no Jikan?[27] Once you begin to attack pure fantasy, where do you stop? Under current legal interpretation, a drawing of Rin's fictional panties covering her non-existent genitalia constitutes a prohibited sexual act. Would a jury, applying local community mores, be convinced that these materials possess serious artistic value? In Texas v. Castillo, a state case from 2000 tried under Texas law, two defense experts - one of them a professor at the University of Texas who was also an authority on Asian literature - were unable to convince the jury that Demon Beast Invasion: The Fallen was not obscene. What are the chances that a jury will credit an expert's testimony regarding manga containing representations of minors?

trevorbrown-sixtieslolitaqueen

The government, of course, says "trust us," but history teaches precisely the opposite. Since 1984, the category of material which could and would be prosecuted has been in a constant state of expansion by act of Congress and court decision alike. At first the law forbade only the commercial handling of obscene images depicting minors under sixteen.[28] In 1984 the upper age limit was increased to eighteen and the crime of simple receipt was added. Later, Congress included the crime of possession of three or more items, then just a single item.[29] Rather than defining "lascivious exhibitions of the genitals" by the model's pose, the courts interpreted the phrase broadly, basing the determination on factors outside of the image itself, such as whether it was published with a lewd caption[30] or created with lewd intentions in mind.[31] With United States v. Knox the meaning of the phrase expanded to include "exhibitions" of the pubic area or genitals which were fully covered by clothing and/or zooming in on that body part from afar, even without the knowledge of the person depicted.[32] Simulated sexual acts were also defined and prohibited. Advertisements became illegal, as did, briefly, any image that "appeared to be" a minor.[33] Then Section 1466A came along, and with it all the criteria and penalties associated with child pornography were applied to completely fictional representations. Naturally the penalties increased with each amendment. Soon, if the so-called "Safety Act," currently pending before Congress, is passed, the sentence for receiving even a single prohibited cartoon in violation of Section 1466A will jump from "not less than 5 years and not more than 20 years" to "15 years or for life." [34] Life. For cartoons.

055

Artists probably have the most to fear. Under United States v. Schales, a decision issued last October by the Ninth Circuit Court of Appeals, the very act of drawing may be deemed criminal under Section 1466A. [35] In that case the defendant was charged and convicted for "producing" obscenity by using software to edit and paste together parts of pre-existing pornography with legal photos he took of local girls to make it appear as if the girls were engaging in sexually explicit conduct. (He did not disseminate these images, but kept them for his private viewing.) There is no logical reason why one rule would apply to collages and another to drawings and paintings. Following this decision, what artist is willing to risk an assessment of the worth of his or her work by the harshest critic of all, the criminal law?

It is often said that "bad cases make bad law," but here the bad law is being made by legislators and judges alike who climb over each other in an effort to prove their moral uprightness and supposed concern with protecting children. It is quite possible that at least some of the more obvious excesses - the prosecution of private possession of obscenity; the definition of "production" to include the creation of collages, the definition of "receiving" to include viewing online however briefly (or not at all) and the recent criminalization of "accessing" with intent to view - will eventually be ruled unconstitutional. Likewise, there are solid legal arguments why the interpretation of Section 1466A as applying to completely fictional representations is untenable and contradictory given both the language of the statute and statements of intent by those in Congress who drafted it. But in the broader view, Section 1466A is about thought control. Both the law and its penalties are premised solely on the idea that fictional representations "whet the appetites" of sex offenders or seduce children into sex. When the Supreme Court rejected that rationale for prohibiting fictional representations under the rubric of "child pornography" but held that such images could, nonetheless, be prohibited if they were "obscene," it did not indicate that anything goes. Rather, the Court announced this crucial principle:

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." ... First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.[36]

Speech includes not just the written word, but also painting, drawing, collage, film, video and sculpture. Private authorship and possession of obscene books are no different from private authorship or possession of obscene works of art. Prohibiting either strikes at the very heart of freedom of thought, but then so does prohibiting an individual's right to buy, purchase, download or otherwise receive "obscenity" for his or her private consumption. Don't think that this argument is a defense of child pornography. It isn't. The subject here is fiction and fantasy. No children are abused in the production of these images.

In its 1973 decision in United States v. Orito, the Supreme Court ruled that the right of an individual to private possession of obscene material did not mean that the producer or seller could lawfully send it to him or her through the mail. "Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material," Chief Justice Burger wrote, "based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause."[37] A lot has happened since 1973, including an explosive growth in the selection and availability of sexually explicit material, a revolution in communications and an evolution in our understanding of the zone of privacy. (In 2003, the Supreme Court ruled unconstitutional a Texas sodomy law, holding that a state may not enforce the moral views of the majority "on the whole society through operation of the criminal law."[38]) Several times in the past ten years the courts has struck down laws aimed at restricting on-line content on the basis that it might be seen by juveniles or unwilling adults.[39] One of these days, the Supreme Court will have to face this larger issue of whether the obscenity laws can honestly still be justified.

In the meantime, organizations like the Comic Book Legal Defense Fund, which would have provided expert witnesses at its own expense had the Handley case gone to trial, should be supported through donations and membership. News sites and blogs should loudly criticize government interference with the rights of its citizens to purchase, read and possess the publications they wish. Petitions should be sent to members of Congress objecting to the censorship of art under the guise of protecting children. Moral crusading against comic books and art must be forced into retreat.

______________________________________________

[1] United States v. Dwight Edwin Whorley, United States District Court for the Fourth Circuit, Case No. 06-4288, Decision by Judge Niemeyer, December 18, 2008, p. 5. http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf

[2] Id., pp. 3-4.

[3] Id., pp. 4-5.

[4] Id. p. 21. The decision notes that Whorley was initially arrested in December 2008 and released In April 2002.

[5] Brief of the Appellant to the United States Court of Appeals for the Fourth Circuit, United States v. Whorley, p. 77 (hereinafter Brief of the Appellant.) (The interior references are to the trial record.)

[6]FBI Agent James M. Fottrell , a forensics expert, testified that the computer Whorley used "only logged one entry for each of those images [i.e., the 20 cartoons]. He also stated that he was 'confused' about different windows being open at the same time on the computer, and that the data gets 'mishmashed' because of email activity and browsing activity going on at the same time. J.A. 581, 606. He conceded that 'an image could be downloaded onto the hard drive in the internet cache hard drive, and the person sitting there looking at the screen may never see the image," or may just see a portion of the image or the contents page. J.A. 592, 609, 620, 626. He also conceded that the index.dat file does not indicate what is appearing on the screen, only the timing and sequence of what is going on with the hard drive and the Internet Explorer Program. J.A. 597, 606.
"Agent Fottrell then testified about the timing of the charged images coming into the internet cache of the hard drive and the timing of all of the hundreds of uncharged images that were logged into the hard drive at and around the same time. J.A. 598-632. He confirmed that for almost all charged images, many uncharged images were logged in within seconds of the charged images, and many uncharged images in the same second as the uncharged images. J.A. 599, 600, 602, 604, 608, 610-12, 614-32.  Brief of the Appellant, United States v. Whorley, pp. 21-22.

[7] The statute, known as The Protect Act of 2003 ("Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today"), was introduced in January 2003 and signed into law on April 30th of that year. For legislative history, see http://thomas.loc.gov/cgi-bin/query/z?c108:S.151: and http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.00151: (The colon is part of the urls.)

[8] 18 U.S.C. 1462 specifies a prison sentence of "not more than five years" for a first offense and "not more than tem years...for each offense thereafter." See http://www.law.cornell.edu/uscode/18/1462.html

[9] The penalties under 18 U.S.C. Section 1466ª are controlled by 18 U.S.C. 2252A(b), the child pornography statute. See http://www.law.cornell.edu/uscode/search/display.html?terms=1466A&url=/uscode/html/uscode18/usc_sec_18_00001466—A000-.html

[10] The distinction was first made in New York v. Ferber, 458 U.S. 747 (Supreme Court of the United States, 1982), see http://www.law.cornell.edu/supct/html/historics/USSC_CR_0458_0747_ZO.html.

[11] Miller v. California, 413 U.S. 15 (Supreme Court of the United States, 1973). See http://www.law.cornell.edu/supct/html/historics/USSC_CR_0413_0015_ZS.html

[12] http://www.usdoj.gov/criminal/optf/links/citizens_guide.html

[13] No Senator or Congressman actually stated this as a reason for the provision, but the attempt to create a slightly narrower category of images of fictional minors with respect to which the Miller test could be dispensed was obviously aimed at easing any prosecutorial burden while reducing the defendant's chances for a successful defense.

[14] According to Whorley's federal public defender, Robert J. Wagner, "The nude images in the case, which were thumbnails scattered among written text, were simply nude children in non-lascivious poses, sitting on the kitchen counter, standing in the woods, standing on the beach.  It was simply the context of everything else in the case that caused the jury to find him guilty on those counts.  These were the kind of pictures that you might find in a family album." (Email communication March 18, 2009; see also Brief of the Appellant, United States v. Whorley, p. 80.) This characterization is strongly supported by circumstantial evidence. The FBI's expert testified that he visited the Logical Reality site to confirm the existence of the images seven or eight months after Whorley was arrested:

[Agent Fottrell] compared the pages appearing on the web-site during the October-November 2004 time frame with the files in the VEC computer's temporary Internet file directory [on the day of Whorley's arrest, March 30, 2004], and found them to be the same. JA 535. He also stated that the text on the web-site indicated that it was last updated in 2003. JA 535

Brief of the Appellant, United States v. Whorley, p 19. Furthermore, Logical Reality was still online at least as late as December 2006. A Google search turns up comments by people outraged about the site at various times in January 2006 (http://friends.portalofevil.com/sfs.php?fi=000033803), March 2006 (http://www.freeratio.org//showthread.php?t=158066&page=10) and December 2006 (http://forums.jolt.co.uk/archive/index.php/t-491098.html).

It is not merely unlikely, but impossible, that an openly-accessible website containing child pornography would remain online from 2003 until at least 2006.

[15] United States v. Whorley, No. 06-4288 (4th Circuit Court of Appeals, December 18, 2008). http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf.

[16] See 18 U.S.C. Section 2252A "Certain activities relating to material constituting or containing child pornography" Paragraph (b)(1) specifies the sentence for 1466A(a) (production, distribution, receipt and possession with intent to distribute), while paragraph (b)(2) which specifies the sentence for 1466A(b) (simple possession). http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00002252—A000-.html

[17] 18 U.S.C. 1466A(f)(2) states that "the term 'sexually explicit conduct' has the meaning given the term in [18 U.S.C.] section 2256(2)(A) or 2256(2)(B).  Both those sections refer to sexual conduct by or between persons. In addition, 2256(1) defines "minor" as "any person under the age of eighteen years." (Emphasis added.) See http://www4.law.cornell.edu/uscode/uscode18/usc_sec_18_00002256—-000-.html

[18] See the website of the Comic Book Legal Defense Fund, http://www.cbldf.org/pr/archives/000372.shtml; Superceding Indictment, United States v. Christopher S. Handley, Crim. No. 07-CR-030, United States District Court, Southern District of Iowa, Western Division, October 17, 2007; and Order of District Judge James E. Gritzner, July 2, 2008, http://www.iasd.uscourts.gov/iasd/opinions.nsf/55fa4cbb8063b06c862568620076059d/20a96a77c04347ed86257480006ae8c5/$FILE/Handley.pdf

There is no mention in any court document throughout the case of either child pornography or images of nude minors in the defendant's possession.  It would have been noted and/or charged had there been.

[19] In calculating the applicable sentencing range, Handley's lawyer noted the sentencing enhancement under the United States Sentencing Guidelines Section 2G2.2(b)(7)(B) for the presence of "at least 150 images, but fewer than 300 images." That number would have been provided to him by the government. See, Defendant's Motion in Limine, United States v. Handley, p. 6. Sections 2G2.2(b)(7)(C) and (D) provide further enhancements, respectively, for "at least 300 images, but fewer than 600″ and "600 or more images." The guidelines are less than precise as to how the government counts images in magazines, but one may draw an inference that one page equals one image:

(B) Determining the Number of Images.-For purposes of determining the number of images under subsection (b)(7):
  (i) Each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image. If the number of images substantially underrepresents the number of minors depicted, an upward departure may be warranted.

  (ii) Each video, video-clip, movie, or similar recording shall be considered to have 75 images. If the length of the recording is substantially more than 5 minutes, an upward departure may be warranted.

See "2008 Federal Sentencing Guidelines Manual, Chapter 2 - Part G - Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, and Obscenity," available at http://www.ussc.gov/2008guid/2g2_2.htm.

The low number of images in Whorley's case rules out the probability of being charged in connection with Comic LO, as a single issue of that magazine contains more than 300 pages, each which contain numerous chargeable cartoon panels. An email exchange with the Comic Book Legal Defense Fund (CBLDF) also suggests that there are no English words on the cover of the magazines in question: "The titles of the manga in question in Handley is not secret, but they are not known either.  The material in question is untranslated Japanese manga, likely doujinshi... The titles have not been identified, and the alleged nature of the material makes wide dissemination to identify titles risky." Email dated April 7, 2009 from Charles Brownstein, Executive Director of CBLDF to the author.

[20] Handley was also charged with mailing an obscene book of cartoons which, according to the indictment, "depicted graphic bestiality, including sexual intercourse, between human beings and animals such as pigs, monkeys and others." United States v. Handley, Superceding Indictment, Count 5. As noted above, there is no minimum sentence on this charge.

[21] United States v. Handley, Order Setting Conditions of Release, May 18, 2007, Document no. 8 on the case docket sheet.

[22] United States v. Handley, Motion to Modify Conditions of Release, filed undated, but indicated on the docket sheet as document no. 21, filed 7/18/07. Attached is the "Report of Bond Violation - Information Only" by United States Probation Office, dated July 9, 2007.

[23]United States v. Handley, Order of Ross A. Walters, United States Magistrate Judge, August 1, 2007. Document no. 26 on the docket sheet.

[24] United States v. Handley, United States District Court, Southern District of Iowa, No. 07-CR-0030 (JEG), Order, p. 5. See footnote 17 above for online availability.

[25] Stanley v. Georgia, 394 U.S. 557, 565 (1969), available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=394&invol=557

[26] Id., pp. 10-15.

[27] American publisher Seven Seas cancelled the publication of  Kodomo no Jikan (under the title Nymphet) " one day after its official release date of May 29, 2007. (The official release is pictured at http://www.amazon.com/Nymphet-Kaworu-Watashiya/dp/1933164476.)  See,  "Seven Seas Cancels Nymphet (Kodomo no Jikan)", ComiPress, May 30, 2007, http://comipress.com/news/2007/05/30/2031, and "Seven Seas Kills 'Nymphet'", May 30, 2007, ICV2.com, http://www.icv2.com/articles/home/10663.html. Kodomo no Jikan was popular enough in Japan that it was turned into a anime TV series. It is not considered even remotely pornographic by Japanese standards. See "Nymphet Controversy: Seven Seas' Response," by Jason DeAngelis, http://www.gomanga.com/forum/viewtopic.php?t=5291 and "Jason DeAngelis of Seven Seas on 'Nymphet'," May 30, 2007, ICV2.com, http://www.icv2.com/articles/home/10662.html.

[28] The first law was enacted in 1978 by Public Law 95-225, Sec. 2(a), Feb. 6, 1978, 92 Stat. 7.

[29] These changes were effected by amendments in 1984, 1986, 1988, 1990, 1994, 1996, 1998, 2003, 2006 and 2008.  For an complete list of the changes up until 2006, see http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252—-000-notes.html. For the 2008 amendments (which defined a new crime of "knowingly access with intent to view," see http://www.govtrack.us/congress/bill.xpd?bill=h110-4120 and  http://www.govtrack.us/congress/billtext.xpd?bill=h110-4120.

[30] United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand , 812 F.2d 1239 (9th Cir.), cert. denied , 484 U.S. 856 , 108 S. Ct. 164 (1987). The "Dost factors" for determining a "lascivious exhibition of the genitals" are cited in footnote 10 of United States v. Knox,  32 F.3d 733 (3rd Circuit, 1994), http://bulk.resource.org/courts.gov/c/F3/32/32.F3d.733.92-7089.html#fn10.

[31] United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1986), cert. denied, 484 U.S. 856 (1987), http://bulk.resource.org/courts.gov/c/F2/812/812.F2d.1239.86-5213.html, and United States v. Cross, 928 F.2d 1030 (11th Circuit 1991), http://bulk.resource.org/courts.gov/c/F2/928/928.F2d.1030.86-3344.html.

[32] Ibid., note 29.

[33] That language was ruled unconstitutional as applied to child pornography (but not obscenity) by the Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),  http://www.law.cornell.edu/supct/pdf/00-795P.ZO.

[34] See H.R. 1076, http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1076:, and S. 436, http://thomas.loc.gov/cgi-bin/query/z?c111:S.436:.

[35] Case No. 05-CR-0385 (9th Cir., October 20, 2008), http://altlaw.org/v1/cases/1673485.

[36] Ibid., note 34. Opinion of Justice Kennedy, p. 15.

[37] United States v. Orito, 413 U.S. 139 (1973), see paragraph 5 at http://www.altlaw.org/v1/cases/384249.

[38] Lawrence v. Texas, 539 U.S. 558 (2003), p. 10, http://www.law.cornell.edu/supct/pdf/02-102P.ZO.

[39] See "Communications Decency Act," Legal Challenges, http://en.wikipedia.org/wiki/Communications_Decency_Act.

______________________________________________

Afterward

8753-comic-lo-japanatorcom-site

Some websites have reported that Christopher Handley received or was in possession of issues of Comic LO. There is almost not chance that this rumor is true.

Here's what Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund (CBLDF) has to say about the titles: "The titles of the manga in question in Handley is not secret, but they are not known either. The material in question is untranslated Japanese manga, likely doujinshi, [furnished by the government] as a series of photocopies. The titles have not been identified..."

If Handley had received or possessed copies of Comic LO, there would be no doubt as to the title, since the title is written in English.

Moreover, each issue of Comic LO contains well over 300 images that would violate 18 U.S.C. 1466A. But as the article, "Viewing Manga As A Crime," points out, "[b]y the government's count, [Handley ] received or possessed more than 150 but [fewer] than 300 such images in total." Remember that he was charged for receiving AND possessing a variety of titles. Thus it is almost impossible that Comic LO was among them.

Given the ubiquity of prosecutable "schoolgirl" images in manga (including prosecutable images showing some variety of bdsm, which provides for a sentencing enhancement), the issues raised by the Handley prosecution are serious indeed.

About the Author

Lawrence A. Stanley has a B.A. in Philosophy from George Washington University and a Juris Doctor from Cardozo School of Law. He has authored or co-authored appeal briefs in U.S. v. Knox and U.S. v. Various Articles of Merchandise, Schedule No. 287, among other cases, and amicus briefs to the U.S. Supreme Court in Massachusetts v. Oakes and Maryland v. Craig. His articles have been published in Playboy, the Washington Post, The Gauntlet and other print publications. In 1989, he was the recipient of the Free Press Association's H.L. Mencken Award for Investigative Journalism for his Playboy series, The Child Porn Myth. He currently practices in the area of trademark and copyright law.

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

Doesn't bother me

As a huge anime fan, I have to say it doesn't bother me in the slightest that someone under surveillance for downloading REAL child pornography is convicted for looking at and discussing hentai at a goverment office. The people who are getting offended at this case disgust me for not reading the specifics of the case and for probably enjoying lolita pornography in the first place.

re: Doesn't bother me

Well, the article is talking about two different cases. The first is the one you're referring to, and I'm sure that many would agree with your pronouncement there, but the second appears to be purely manga-related. Now is it still as clear-cut as you make it sound? How much further does it have to go before people should be concerned? This is why the article refers to this issue as a "slippery slope".

Surely, if your primary argument is that people aren't reading the specifics of the case before being offended, one would assume that you at least read the specifics of the article before commenting...

Moral outrage doesn't justify bad legal rulings

It may be repulsive, but an emotional response should not carry the weight of law. Law has to be based on what is on the books as legal or illegal, or we will each of us wind up living in fear of what our neighbors think is improper. It may bear mentioning that women's rights, equal rights for colored persons, and the right to drink alcohol were each at one time heavily frowned upon by the public. Now, however, we pride ourselves on being a tolerant society accepting of anything that does not harm others.

Child pornography is illegal because it is harmful to the children involved in its production, not because it is offensive. Where there is a means of production that does not harm anyone, in principle such production should not be illegal. Note that many of the arguments against child pornography are generalizable to all pornography. Further, note that studies show that violent sexual crimes are reduced in countries with easy access to pornography (or conversely, increased in countries that make such materials hard to access.)

Personally I have no taste for this sort of thing, but I do like civil liberties. If a government official's willingness to play by the rules ends as soon as he finds something distasteful, he can't really be said to have the interests of law or a modern society at heart.

So by all means, fire this person for using his office computer to look at non-work-related stuff. But don't criminalize the viewing of a bunch of made-up drawings. And don't ban an entire genre of media, the majority of which is non-sexual, just because you don't understand what anime is. It's equivalent to saying "some novels and magazines are erotica, so we forbid you from ever reading anything printed."

And then we will have a

And then we will have a society like in Fahrenheit 451.
Or Brave New World.

I completely agree, because

I completely agree, because he was viewing it at a state office, and was previously viewing REAL child pornography.

There's a law going through

There's a law going through UK parliament right now that will put drawings on the same levels as photographs. It's hidden inside this bill: http://services.parliament.uk/bills/2008-09/coronersandjustice.html#2008.... For more information on this, look here: http://www.melonfarmers.co.uk/gca.htm

This is an issue that goes

This is an issue that goes beyond manga and anime. It is a shame when an artist's work is regulated by the government. Interpretation of any art is just that - interpretation. What constitutes art should also not be regulated by the government. Great works would be banned if this were the case. While this article centers around pre-pubescent children, the law, as it stands, includes anyone under the age of 18.

All this is contradictory as well. If the law is such that the persons referred in this article are prosecutable, then why would publications such as Yubisaki Milk Tea be licensed and published in the US? The cover for the first volume depicts a very young girl in pig-tails wearing such a loose tank top that you can see 3/4 of her breast from the side. Clearly this should fall under the laws listed above. And what about Loveless where the two main characters are a junior high boy and a college student. There is a lot of emphasis on their relationship. Both of these stories are licensed in the US in both manga and anime forms. And what about the fact that many characters in manga and anime are depicted younger than they actually are?

I personally do not approve of Loli or Shota, as others have pointed out, I like civil liberties. One of the main appeal of the US (not to mention the principle of it's origins) is liberty and freedom and (albeit increasingly limited) the right to free speech and persecution from the government for one's beliefs.

About the Author

Out of curiosity, I did a Google search for Lawrence A. Stanley, the author of this piece. The first result reveals that he's Lawrence Allen Stanley, aka the primary lawyer who represents NAMBLA aka a guy who got arrested for real actual child porn.

Per that link--and let's take this all with a grain of salt because The Washington Times is not exactly the most neutral of sources--the author of this essay was found guilty of buying and selling videos and photographs of kids as well as sexually abusing three kids age 7 to 10 in the Netherlands, thus forcing him to flee to Brazil because they have no extradition treaty with the Netherlands. If he goes back to the Netherlands or anywhere that does have an extradition treaty with them, he's going to jail. The Washington Times may be owned by a completely crazy guy, but I doubt even they are crazy enough to write stuff like this about a lawyer if it wasn't true.

If there's any doubt as to whether they're the same person, that article I just linked notes that the Lawrence Stanley in question had written articles for Playboy entitled "The Child Porn Myth." The "About the Author" section of this post states that the Lawrence A. Stanley who wrote the piece had written articles for Playboy entitled "The Child Porn Myth." Conclusion: they're the same guy and this article is written by a bona fide child predator, a detail that was somehow deemed irrelevant to make mention of in the About the Author section of the piece.

That said...he's still right about the fact that Handley did not actually break the terms of his pre-trial release, and therefore should not have been re-arrested. All of those DVD titles are US retail releases, and as such wouldn't be legally classified as "obscenity" even though many of them are porn. So even though I think Handley is guilty, they shouldn't have nailed him for this and it is indeed problematic that authorities are unable to distinguish between obscene/pornographic material and material intended for mainstream viewing. On the other hand, how crazy do you have to be to resume purchasing porn of any kind right after going through what just happened to this guy?! How crazy was Whorley to look at porn on a government computer?

There's a decent point to be made about these proceedings, but it's all heavily undermined by the author's background, the pictures chosen to accompany the text, and the J-List banner for a game whose selling point is "a teacher who falls in love with her student...."

Maybe so, I didn't feel the

Maybe so, I didn't feel the accompanying pictures to be undermining though.

Anyhow for the J-list ad, two of the girls are teachers and the other is a college student, not child porn of any sort. American porn studios use the same setup and its perfectly legal/ethical to promote and sell such products.

Ad hominem attack

While I agree that the accompanying pictures are a little weird, all you're really offering here is an ad hominem attack on the author. Whether or not the author of that essay has a horse in this race isn’t really germane to whether his arguments and legal reasoning are compelling, which I do think they are. Ad hominem attacks are red herrings intended to distract us from the issue at hand, which is whether we want our government to be prosecuting and punishing a citizen’s thoughts — where the mere viewing of cartoon images can get you government harassment and a jail sentence.

We may find the cartoon images in question and even those who purchase/create them to be personally disgusting — but that’s irrelevant to the argument and in no way excuses the abuse of power we're seeing here. Whether we are talking about thought-crimes or torture, it doesn't matter how likable or "crazy" we think the defendants or proponents are — our government simply has no business doing this to its citizens. It’s foolish, hysterical and wrong.

The desire to protect children comes from a good place. We should use strong measures to protect children from predators. But we can't allow our fear and moral outrage to lead us into witch hunts and Orwellian excesses. If the author of this essay did the things you say others claim he did, well then, shame on him. It doesn't make the government's actions here any more justified nor does it undermine the arguments Stanley is making against those actions.

Don't Believe Everything You Read'

You are correct, the Washington Times is an inaccurate source. I have never been convicted of any crime in connection with images depicting sexually explicit conduct of minors or anyone under the age of 18. The information provided regarding the Netherlands is inaccurate and incomplete. I did not flee to Brazil and, in any case, for more than a decade, Brazil has honored all extradition requests from all countries where (a) the crime alleged is a crime under Brazilian law, (b) the foreign sentence will not exceed that under Brazilian law, and (c) the case is not one defining a "political crime". (Ronald Biggs wouldn't have a chance in modern Brazil.) Lastly, I am not and wasn't a "lawyer for NAMBLA". I represented NAMBLA in a single proceeding under New York State law regarding charitable organizations.

"So even though I think

"So even though I think Handley is guilty"

Could you explicitly spell out for me again what exactly Handley is guilty of in your opinion?

The Crime of Viewing Manga and the J-List Ad

Illegalizing kiddie porn is a good way to protect children but this is ridiculous. Labeling and criminalizing all forms of anime/manga is considered moral crusading. I hate these bible-thumping heretics shoving their pathetic moral beliefs down our throats. That goes to Soccer Moms as well. In the bible, there's something that we have as bible-thumping heretics don't believe and it's called "Free Will". Whether we do want to or don't want to believe in God, it's none of their business.

Let's face it. Anime = Porn. In the end, The Anime Era is dead.

As for the J-list ad, catgirls and female teachers falling in love with a girl student is considered a Yuricon. Why not Female teacher in love with a male student such as in Please Teacher/Onegai Sensei? I do support the ban on kiddie porn but I'm not a pedo or pervert.

So as Bill and Ted would say, "Be excellent to each other as well as yourselves".

Party on, Dude!

Having seen all of

Having seen all of "GaoGaiGar," I cannot help but laugh hysterically at anyone that would think it is child pornography.

Seriously

Seriously. At first I wasn't sure whether I should cry or laugh at the stupidity. After a few moments I decided to laugh my heart out. What morons.

Don't forget- as disgusting

Don't forget- as disgusting as it may seem, from a psychological standpoint nobody (including pedophiles) can help feeling what they feel. The distinction is whether they choose to act on their feelings, and that's when it becomes a problem because it is actively harmful to the child victims. Frankly, I would rather that people who are attracted to children deal with their feelings via cartoons, where no actual victimization is involved, than have it build up to the point where they act on their feelings in real life.
This may be incredibly contraversial, but remember that we were all attracted to children when we, too, were children. I suppose, due to some kind of emotional damage, some people never manage to grow past that initial desire. Again, the issue is whether or not they choose to act on their urges.

Extend Capital Punishment For More Crimes?

Time to grow up I guess.
When the legal authority of a country that actively encourages the use of firearms, can prosecute someone for reading comics, then I believe the world is definately coming to an end.
How does a suposedly advanced nation accept such a twisted morality?

lol

legally, he got what he deserved..Though in my opinion he should be lynched.
so should all other loli fans..how sick do you have to be to think ANY form of child sex is ok?

Hope he is raped many times over in jail.

Nice try, troll.

Nice try, troll.

I agree, children and sex

I agree, children and sex should not be in the same sentence. Even fantasizing about that is disgusting.

Sexual abuse is probably the most or close to the most horrendous crime against a child.

thats so harsh i know its

thats so harsh i know its lolicon but how about all the people in japan and stuff that had that stuff

it maybe the law but if he doesnt actually do something like it then it should be fine shouldnt it?

i bet everyone who has manga and anime has a couple of dodgey scenes in their collection

Funny

Strange how the sentence for these "crimes" Handley supposedly committed will likely exceed the sentences that many real child molesters get. If we're going to get "serious" about sex crimes, cartoon pornography is not where we should start.

Wow... my gosh

Dont even think of quoting the bible on this one folks...

Public stoning I believed was best left to the heretics a few thousand years ago, but even the bible is subject to the same laws.
(Besides, whatever you do, dont send a copy of an electronic bible in email because it's got a copyright stamp on the first page... Guess their god works for the publisher now)

The Handley case is a sham to screw every country into following the US standpoint for popular media points, and we have elections coming up in the EU over the next two weeks.

They will slam everyone with this in no time like they jailed that poor bugger in Australia for viewing Simpson cartoon porn.

Hell even Matt Groening did a alcohol-bender trip to Vegas for Homer and the hyper religious Ned Flanders in one episode... are they going to cancel Simpsons and lock Matt up too?

Religion in it's context

Funny how, on any sort of moral arguemnet now - which always seems to extend from politcal standpoints - reverts back to religion. Primarily, christianity.

I know christinaity in America is extremely strict and 'bible-bashing', but it disappoints the rest of the world.

Stomp a guy, then hammer the entire house? I think not.

I haven't read the entire the page for myself, but skimming through the page as well as the comments gave me a slight idea on what's going on: As far as I'm (maybe not) concerned about this, Ol' Handley over there just got caught by handling some stuff that people usually doesn't touch (especially kids), and when caught, it results in the ENTIRE law dropping their hammers on simply everything, everyone, and everything that is made by everyone. Laughable, just laughable.

I don't stand on either side by this comment. I just want to know things, that's all. If you think that I'm a bit loud-mouthed, fine by me. I'll just shut up, and watch things come and go just like usual.

But one thing is for sure, blaming simply everyone by just a person's mistake is plainly wrong. You can't just shut the entire system by just one mistake now can it? Well, I believe the Law can do that anyway, anytime. But I'd hate it if they do.

We're not in jail, but we're all prisoners, restrained by chains and a metal ball...

no excuse-child porn is child porn

I like yaoi and as long as it is in good taste fine. All my yaoi has adults in it and it will stay that way. To me anything that portrays a child in a sexual way is wrong. Children are not suppose to be portrayed as sex objects. Now the man already was got in trouble for child porn as it is and he was trying to find a way around the system so he can look at some more. Worst he was doing it in public and what if that woman had here child with her that day and he/she saw it. I understand freedom but we need our limits and it you can agree that it is alright to look at any child porn regardless at how it is done then you are twisted as hell. To say it was cartoonish and that makes it okay is bull.

No, just no.

So... how do you justify murder which is EVERYWHERE (realistic movies, comic books, (normal) books)? It's not wrong, eh?

WRONG! As long as it's not real (and NOBODY is harmed), everything should fine and legal. Seriously, everyone should stop caring about nonexistant people and start caring about those who actually need help, though I understand that the former one is just an easier way of putting your mind at ease (makes you feel "good" without actually requiring ANY action, eh?).

Also, you're confusing Whorley with Handley. Handley had NO truble with law earlier. Now he's facing a prison sentence for mangas... If you fail to see the "what the hell" here, I guess nothing will convince you.

All adults? Really?

Are *all* of the characters in your yaoi manga 18 and older? Do they list the ages of all of the characters at the front? Because if they don't, who knows if some of those characters are intended to be 17? Guess what, if a jury looks through your collection, thinks that the characters "appear to be minors", and considers the art to be obscene (a very likely possibility given anti-homosexual bias in society), you get a new name. Hello, Inmate #245087-B6, welcome to your new ruined life!

Prison's the easy part if you can avoid the rape from both fellow inmates and prison guards. Just wait until you get out and get to list your felony on every job application. And now that you're a registered sex offender, your neighbors are just going to love hearing your story, but good luck finding any opportunity to tell it while everyone is avoiding you and your house gets pelted with eggs and your lawn begins to sport barely legible signs that say, "GO HOEM, CHILD MELESTOR!"

Oh I get it, YOUR smut is perfectly okay - to YOU! No way an overzealous prosecutor with political ambitions to win the socially conservative old people vote will go after you. I'm sure Handley thought the same thing.

Wake the hell up before it's too late!

Well...

That hits the nail on the head. You either support it or you don't, stop defending it because it's an 'artistic vision' or any other reason.

"Funny how, on any sort of moral arguemnet now - which always seems to extend from politcal standpoints - reverts back to religion. Primarily, christianity.

I know christinaity in America is extremely strict and 'bible-bashing', but it disappoints the rest of the world."

Religion has nothing to do with this, it's wrong, plain and simple.

If I support people's right

If I support people's right to print and read Marquis de Sade, am I sadist?

Child Porn is Child Porn

Manga will never die. If they want to take away Yaoi or manga then they are going to have to take away Playboy and all the other mags. What the problem is he was looking for stuff about child real or drawn. He didn't accidentally click on a site and that just popped up, it wasn't a mistake. Anything with children in a sexual way makes me want to vomit and it should make Any NORMAL person feel the same way. It makes me want to cry that none of you can see that. Your worried about freedom our rights. What upset people was that it was about kids be it real or not. You have some people who can not seperate reality with fantasy and he was looking to get his jollys off. The only time we look for sexual stuff is fun, entertainment, curiosity and jollies. If they are not going to Ban Gossip Girls(eww) then they are not going to ban manga. They just don't want anything with children in it.
When it comes to American stores selling manga, they do not read what they sell so 90% of them do not know they are selling child porn. I purchased a manga from a Big name Book store, I read the synasis first and when I got the book I threw it away and I wrote my complaint on their site. I was pissssssed.
You can say all you want about freedom and we have to protect ourselves, then that means your doing Something that needs to be protected. We are Mothers and Fathers of the next gen. We are suppose to protect them. We are suppose to let children be children. We are not suppose to look and them in any kind of sexual way. Manga will never die, it just the ones with children sexual ways need to and will.

"I am protecting the

"I am protecting the children"?

The phrase "It's for the children" doesn't make anyone's opinion instantaneously correct. No one would ever claim they did it because "They hate the children."

The way that you wish to protect the children is by... helping to ruin civil liberties. I'm afraid I can't follow your logic. History shows us time and time again that once a government takes something away from a citizen, it is quite unlikely to give it back without a fight.

I understand your point of view if children were actually involved in the Handley case. But they aren't. We're talking about a person who collects manga. Much like you in that bookstore, it isn't even assured that he was entirely aware of what all was in his collection. I don't have half a collection of Science Fiction novels as he has, and I doubt I could recap a quarter of them for you if asked.

No children were harmed in the making of these works, distribution of these works, or consumption of these works. The idea that ideas, thoughts, or fictional depictions of something incite the viewer to participate in similar acts is on shaky psychological grounds from the start. I've seen Christ crucified hundreds of times in my life, graphically reenacted, and I've never wanted to do that to someone. So you can't, in good conscience, use the argument that "Oh, because he had these pictures, he was going to hurt actual children later." That's not how it works.

And as far as that goes, how, exactly, is age attributed to a character? I'm sure that some comics may detail it, both certainly not all of them bother, and for those that don't, anime is an INCREDIBLY stylized system. I'm looking at an image in the advertisement bar right now that I think is supposed to be a maternal figure, but who could easily be thought to be in her early teens, if I asked someone less familiar with the style.

Ruling against comics, fictional comics, especially imported fictional comics, that are part of a growing subculture, that are presented in an ultimately entirely ambiguous fashion, and being judged by those outside of that subculture is begging for trouble.

Mostly, though, it worries me as an artist. Because if lawyers couldn't tell me if the image is even legal or not, who do I go to? Do I risk creating art without knowing if I'll get a life sentence for scribbling a few circles and lines with a pencil on a sheet of paper?

Or, hey, I know! Instead of worrying about someone thinking it's a depiction of a minor when it was a character I thought up in my head, I'll just immediately draw exaggeratedly large breasts on all of my characters. So all the women of the next generation will feel underdeveloped and have self-image issues, leading to teen suicides and frequent depressions. Because that's something that there actually IS evidence to support. It's something that DOES hurt children.

But hey, you just wanted to protect the children, right? So nothing bad could possibly happen if we do things YOUR way.

*puts down the phone*

Hey, O'Brien called. The Inner Party wants their thoughtcrime police gear back.

Manga Yes-Child porn- no

Okay that makes no sense what so ever. You basicly saying you want to have the right to draw children in a sexual way. There are alot of things that I don't see the point of but I can usually understand what people are trying to say, this I don't understand. Again there is nothing wrong with manga that has kids in it as long as it is not sexual. If you want to talk about liberties why don't we fight for the right to murder without being sent to jail. Matter of fact why don't we fight for the right to verbally sexual harrase, because its not physically hurting anyone.
You know what why don't you show that stuff to your family members or your kids ask them what they think. You wouldn't do it because you know what they would think.
Now as to the man's case he should do community service and a big fine. If he should do it again then he servce jail time. Besides he in trouble for drawings that depict children in a sexual way, not for manga. There has to be more to the case that we do not know about, because there is no way in the world that I would admit guilt so I can be somebodies "itch" in jail, if I'm innocent. There has to be more, having your name linked to children, real or imaginary your a goner.

If you want to talk about

If you want to talk about liberties why don't we fight for the right to murder without being sent to jail.

No, you're confusing reality with fiction here. You don't have to "fight for the right" to watch movies where people kill eachother (YES, INCLUDING CHILDREN). There's inconsistence here.

Matter of fact why don't we fight for the right to verbally sexual harrase, because its not physically hurting anyone.

Again - you're confusing reality with fiction. Don't forget the fact people have feelings, which DRAWINGS (and OBJECTS in general) don't.
I just harrased my wallpaper, should I go to jail? I bet it has suicidial thoughts now...

You know what why don't you show that stuff to your family members or your kids ask them what they think.

I also wouldn't show violent movies and/or any other porn I have to them, you see. Especially to the kids. Anyway - Handley's family fully supports him, as you can read in numerous blog entries covering that topic.

How would you feel should you be imprisoned for looking at some new Holywood production? You can't be sure they won't "ban" these next. Oh wait, they won't - they have lobbyists. And that's probably the only difference here.

So, the US of A is following

So, the US of A is following the Orwell-scenario out of those two it seems.

Lets agree to disagree

All of ya are a bunch of asses. How the hell can you fignt for someone who searches for child porn. I love manga, I love anime, I love yaoi but I don't love anything with kids in a sexual way. One I don't watch movies were kids are killed. Shoot, I didn't buy the last Rambo. I refuse to finish my Ninja Scroll series becaues of what happened to the two kids. I'm pissed off that they fined Janet J. for accidentally showing her boobs but its okay to show kids being butched on tv. I find it funny how child porn is not okay, but they have shows like Gossip
Girls, O.C. and 90210(all underage half naked making out).
Honestly people there has to be more to this story. If all this was an accident and all that stuff popped up on his computer when he googled, we all know pop-ups happen, he would not have gotten in trouble. He would have fought till the bitter end, I don't care if I lose all my money defending myself, I ain't going to jail. He admitted what he was doing and he even showed the people at his job because he thought if it drawn then its not illegal. Only a sick _uck would think a child being done by whoever drawn or real is normal. i will admitt not eveybody that looks at kinks are rapist, or watch violent movies are future killers, but it all starts somewhere. Because we can't solve all the problems in the world and ignore what he did was wrong and bury it in politics.
You sit there and say its not real so it doesn't offend or hurt anyone physically. Thats easy for someone who has never been molested or assaulted to say. You all are just like the government that you are complaining about. You are so worried about the polictics, the BIG Picture, that you are trying to find excuses for what he was doing. And I come to realize that ya'll never understand the point I am trying to make(i don't expect you to agree, but at least try to understand) because you are the ones who want to see drawings of children bent over a desk being done by some sick perverts. And a survivor of molestation, the drawings to offend. The fact that you are making excuses for what he did scares me.

Once again, Handley and Whorley are TWO DIFFERENT PEOPLE

As far as I can understand, you're confusing two different people, as the article you're commenting talks about TWO different cases. Nobody here defends Whorley who was convicted for child porn earlier. No. We're talking about Handley here, who has no connection to real pics of (naked) children, not to mention child porn.

i will admitt not eveybody that looks at kinks are rapist, or watch violent movies are future killers, but it all starts somewhere.

Yes, it probably starts when they (rapists/killers) are young and are neglected by their parents. But hey, let's blame mangas, it's easier (I'm not talking about you blaming that on comic books or anything, don't get me wrong here).

You sit there and say its not real so it doesn't offend or hurt anyone physically. Thats easy for someone who has never been molested or assaulted to say.

Well if murder victims could talk I bet they possibly wouldn't like violence on the TV either (at least not anymore, despite possibly "enjoying" it every day before being killed). So either ban everything, or ban nothing at all.

Also, I know one girl who was raped (yes, she admitted it), and... you know, she sees the difference between fiction and reality, so she doesn't really care as long as these are drawings.

You are so worried about the polictics, the BIG Picture, that you are trying to find excuses for what he was doing.

Excuses for him reading the books? Oh my... I don't think we/he need(s) any excuses for that? *IF* he ever hurt any kid, that'd be a completely different story. But nope, sorry, apparently he didn't. And yes, when politicians start taking away your civil liberties, SOME PEOPLE start worrying about that. God bless them. Without those people you guys would have cameras installed in your homes already. Would you want to live in a world like that?

And I come to realize that ya'll never understand the point I am trying to make

Yes, probably. Sorry, but "Think of the (imaginary) children!" isn't a logical argument and I believe that's all you're trying to say... I say we should think of the children, of course, but banning mangas may not help them at all.
Here's something you might want to read (I believe it's mentioned in the above article too): "VIRTUAL CHILD" PORNOGRAPHY ON THE INTERNET: A "VIRTUAL" VICTIM? - please pay attention ¶9 especially.

because you are the ones who want to see drawings of children bent over a desk being done by some sick perverts.

No, we are the ones who believe people's future shouldn't be decided based on some illogical (and - actually - unproven) points, cause that's not what we call "justice".
Remember, it's Handley now, but tomorrow they might not like your Gundam manga collection (who knows, you might build a huge robot and destroy the city someday... or something like that).

I never said band manga. If

I never said band manga. If they are going to band manga then they should band tv and everything and we should sit on our butts staring at the sky. You have to admit somethings should have a limit. If they are not going to make a law to shut up KKKs or the so called Christian that stand across the street when there is a furneral going with God hate gays signs, their not going to band manga. I don't think manga should be band, I don't want it to be band.
I am sorry for my anger but this subject pisses me off. You know how many books people tried to have band in American, they tried to band Ann Frank. What will happen is that pictures that are obse pictures concerning children will be band. Which would you perfer a limit or bunch of crazy over concern parents that don't understand manga get together with a politician who is looking for votes with a crusade to band all manga?

Abolish the USPS

As I understand this, Handley's entire crime is that he received a package through the US Mail? A package that he was never permitted to open, a package whose contents are to this day not in his personal knowledge? Anyone with a US mailing address could be sent such a package, and spend life in prison as a result. I would argue that the constitutional violation here is Cruel and Unusual Punishment.
Also, I don't believe "anime" or "manga" are terms with any meaning in law? So the plea bargain should be struck down on those grounds. Is he being forbidden from watching any animation, viewing any comics, or only those which originate in Japan? Can a US court of law be charged with Defamation against a foreign nation?
Why was his collection seized, and not his house or car? None of the three is related to his offense of receiving a package in the mail.

Hentai is not dead

This video http://www.youtube.com/watch?v=j0-QEdbBhAw
Christopher shouldn't get arrested for lolicon.
As long as hentai is made I will continue to find more
animes. Lolicon is not part of a crime and child pornography shoudn't be uploaded on the internet ever since.
No wonder shojo animes are so special and important.
Manga is Comic. That Story arrested from Manga is stupid.

"Anamie" it's Anime work out how you mispronouced what you typed.

Fiction as fiction and nothing more

I full agree that child pornography is wrong. All living breathing children have the right to grow up in a safe and happy environment and to never be exploited or abused. But the issue with Handley is not an issue of child pornography, it is an issue of entertainment created by adults for adults.

I'm a fan of Trever Brown's work which is depicted in one of the pictures in the article. I've also read some loli style manga's and found them pleasant. It's fantasy and no more real than watching a movie about zombies or aliens. Just like there are no actual monsters in a scary movie with CGI and special effects, there are no actual children in a comic book with paper and ink.

As a society, we have become practically numb to the constant stream of images of real people engaging in sexual acts that it appears shallow yet we accept it as normal. How is it that we as a society have decided that reading a book or enjoying artistic drawings that depict fictional characters in the privacy of our homes is "perverse" while watching actual strangers engaging in a business transaction where they perform sexual acts in front of a camera in exchange for money is "normal"?

U.S Appeals Court Declines to Hear Whorley Case

The U.S fourth district court has just denied to hear Dwight Whorley's lolicon case. Looks like we're all going to jail for possessing anime, but that would overload the prison system. I hate these moral crusaders shoving their beliefs down our throats. They're just like the Westboro Baptist Cultists.

I wish the Obama administration would legalize all forms of comics and anime (even if they're lolicon) and illegalize moral crusading (that's right silence Gospel preaching. That means you'll end up persecuted or even a martyr for standing up to your faith). Continuing with the J-list AD, what if a female teacher fails in love with an underaged male student?

Wow... just wow.

Is it an ad hominem attack to say that I had an involuntary shudder of disgust when I read Daryl's post detailing the personal background of the author which wrote this article, a shudder which only become more pronounced after I read Stanley's response, which refuted only select portions of that alleged background?

After all, we cannot control our emotions, right? So my overwhelming disgust for the integrity and general worth of the author of this piece is something that cannot be refuted or suppressed. To claim anything else would constitute a thought crime against me.

No, it's not an ad hominem

No, it's not an ad hominem attack to say that you had an involuntary shudder of disgust when you read Daryl's post. It doesn't make you any less of an oversensitive nitwit, however. =D

Who is the victim?

This should be and open and shut case:

Killing someone: Illegal
Watching a movie or playing a game that involves cold murder: Legal

Raping a woman: Illegal
Buying and reading a fantasy novel that contains a rape scene: Legal

Sexually abusing a child: Illegal
Reading a manga / drawing a picture that involves sex with minors: 5 - 20 years behind bars!!!

See the difference. These things that are illegal are that way because someone else's rights have been violated, or someone else has been harmed. Child protection needs to be focused on that: PROTECTING CHILDREN.
Thought police =/= Child Protection.

Handley's conviction is the

Handley's conviction is the first step into banning porn.

I am ashamed of being Christian.

Then you aren't a christian.

Then you aren't a christian.

The only sensible solution

The ONLY way to protect children from the evil pedophiles that lurk all over the world is to make sure that no child ever appears anywhere -- even in their own home -- wearing anything less than two layers of clothing. Children should never be taken to the beach or swimming pool, since adults will surely be there and able to see (and thus be sexually aroused by) their scantily-clad bodies. After all, if *possessing photographs* of minors wearing swim suits was the justification for arresting, prosecuting and sentencing Mr. Stanley, then surely looking at minors wearing swimsuits *in person* could be no less a crime.

The problem with pedophiles who are aroused by children's faces is more difficult to combat, but technology exists to craft lightweight and comfortable masks that will obscure children's potentially attractive facial features and hair. These masks should be required for all children to carry at all times, and be worn whenever they are within reasonable proximity of adult males.

Obviously, fathers should NEVER be allowed to see their own children naked or in anything less than a fully-concealing garment. Nor should they be allowed to touch, hug or kiss their children in too familiar a way, lest it incite pedophillic lust.

It is a fact that a small percentage of pedophiles are female. Because of this, it is important to prevent women from having physical contact with children that might arouse sensual pleasure. Male infants past the age of two must not be breastfed, nor should they be bathed or changed by their mothers. After all, who would have an easier time satisfying their disgusting carnal lusts with children than the mother who has private access to them?

Likewise, sharing family photographs of children in swimsuits or otherwise revealing clothing should also be dealt with in the same way as those who transmit sexualized images of children are. If Aunt Mary sends Cousin Joe a snapshot of her children in their wading pool, how do we know that Cousin Joe isn't using that photograph for his own sexual gratification?

Finally, any drawing a child does that depicts naked children must be confiscated and destroyed. The litmus test could be if the drawing shows nipples or anything resembling genitalia (graphic nudity), or it could be the absence of clothing drawn on the figure (implied nudity).

Yes, the ONLY way to deal with the menace of pedophiles is to apply the law equally to all, and to presume that all who look at revealingly-dressed or undressed children, whether in person, in family photos or children's drawings, are pedophiles.

no compromise

There is no compromise for the first amendment because someone thinks something is disgusting. I hate having laws based on morals and not based on protection.

ink and paper

no protection

Why's it an issue they got arrested?

Dwight Whorley possessed child porn, both real & virtual. Not really an issue as there's been anti-child porn laws for a while.

Christopher Handley's more unusual case - well he still broke a law in 2006 that has existed since 2003 (PROTECT Act 2003, Title 18, United States Code, Section 1466A(b)(1), which prohibits the 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).

Ignorance is no excuse, you break a law, you do the time... People can't just pick and choose what laws to follow, that defeats the whole point of having laws!!

It's not exactly against freedom of expression and suppressing art. I would not call it 'art' if it incites or aids abuse, violence or hatred. I'd call it propaganda. In this case, from child molesters.

No law written since 2000 is

No law written since 2000 is worth the paper it is wrtten on I call 2000 -2009 the decade of fail.
Child porn real child porn is illegal not because it's distasteful but because real children are harmed in it's creation.

Manga on the other hand is harmless no one is harmed in it's creation.
As for your straw and manure man argument it encourages behaviors what about violence on tv.
I may not find this tasteful but I will fight for another persons right to view it as I'm defending the first amendment.
Or dose any thing sexual have special rules because it offenses your 6th century views so badly?
This is a very slippery slope and makes me ashamed to be American that my government is acting as the thought police right out of George Orwell's 1984.