Legal frameworks around fictional pornography depicting minors vary depending on country and nature of the material involved. Laws against production, distribution and consumption of child pornography generally separate images into three categories: real, pseudo, and virtual. Pseudo-photographic child pornography is produced by digitally manipulating non-sexual images of real children to create pornographic material. Virtual child pornography depicts purely-fictional characters (for example, lolicon manga). "Fictional pornography depicting minors", as covered in this article, includes these latter two categories, whose legalities vary by jurisdiction, and often differ with each other and with the legality of real child pornography.
Some analysts have argued whether or not cartoon pornography that depicts minors is a victimless crime.[1][2] Laws have been enacted to criminalize "obscene images of children, no matter how they are made", typically under the belief that such materials may incite real-world instances of child sex abuse. Currently, countries that have made it illegal to possess (as well as create and distribute) sexual images of fictional characters who are described as or appear to be under eighteen years old include New Zealand, Australia, Canada, South Africa, South Korea, and the United Kingdom.[3][original research] The countries listed below exclude those that ban any form of pornography, and assume a ban on real child pornography by default.
Simpsons Toons Jab Porno
In December 2008, a man from Sydney was convicted of possessing child pornography after sexually explicit pictures of child characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[5] Controversy arose over the perceived ban on small-breasted women in pornography after a South Australian court established that if a consenting adult in pornography were "reasonably" deemed to look under the age of consent, then they could be considered depictions of child pornography.[citation needed] Criteria described stated "small breasts" as one of few examples, leading to the outrage. Again, the classification law is not federal or nationwide and only applies to South Australia.[6]
Canadian laws addressing child pornography are set out in Part V of the Canadian Criminal Code, dealing with Sexual Offences, Public Morals and Disorderly Conduct: Offences Tending to Corrupt Morals. Section 163.1 of the Code, enacted in 1993, defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", that "shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity", or "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".[7] The definitive Supreme Court of Canada decision, R. v. Sharpe, interprets the statute to include purely fictional material even when no real children were involved in its production.
There have been at least three major cases brought up against the possession of fictional pornography within the last two decades. In April 2010 visiting American citizen Ryan Matheson (aka Brandon X[8]) was arrested in Ottawa for bringing erotica based on Lyrical Nanoha.[9][10] By October 2011 he was charged with possession and importation of child pornography and faced a minimum of 1 year in prison.[11] The next case occurred in 2014 where a man from Nova Scotia was sentenced to 90 days after pleading guilty of possessing mostly anime images. Roy Franklyn Newcombe, 70, pleaded guilty to the charge after a NSCAD student found a USB thumb drive with sexually explicit images and videos at a computer lab in April 2014. There was no indication the images involved local people or had been manufactured by Newcombe. Most of the 20 images were anime, although a few appeared to be of real girls between five and 13 years old.[12] The most recent case occurred in Alberta when on February 19, 2015 the Canada Border Services Agency intercepted a parcel and arrested its recipient on March 27. Based on the box art of a sculpture being shipped to him, four charges were pressed: possession/distribution, mailing obscene matter and smuggling prohibited goods. These charges were withdrawn as part of a plea deal when the accused agreed to a peace bond.[13]
The possession, storing, fabrication or distribution of child pornography or any other kind of sexually explicit pedophilic material, including fictional child pornography (drawn, written, animated, etc.), is illegal under Ecuadorian law.[14]
Fictional child pornography of any form (drawn, written etc.) is illegal in Estonia per article 178 of the Penal Code.[16] This law does not apply to Estonian citizens who legally commit the offense abroad and as of 2021 nobody has yet been charged for fictional child pornography. Precedent exists to exclude written material with literary value ("literary work" and "pornographic work" are defined differently under law), while current law remains unclear on visual art of artistic value like classical painting or manga as no precedent exists.[17] Real pornography with underage-looking adult actors remains technically legal.[16]
Virtual child pornography is illegal in Ireland per the Child Trafficking and Pornography Act of 1998 which includes "any visual representation".[20] The country has strict laws when it comes to child abuse material, even if it doesn't contain any "real children".[21]
Virtual child pornography is punished with up to a third of the sanctions for real-life child pornography. Virtual images include images, or parts of images, produced and modified with software from actual photos of minors, where the quality makes it so that fake situations are manipulated to appear realistic.[22] Under this law, fictional child pornography is also considered illegal.[23]
Since the 2008 amendment to the Polish Penal Code, simulated child pornography has been forbidden in Poland. Article 202 4b penalizes the production, dissemination, presentation, storage or possession of pornographic content depicting the created or processed image of a minor under the age of 18 participating in a sexual activity. The perpetrator shall be subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to 2 years.[35][36]
From 2008 to 2016, there were 12 people found guilty under Article 202 4b (as a primary crime).[40][41] It is unknown in how many cases, if any, the judgment concerned drawn pornography, as this law is also used for pseudo-photographic child pornography, such as when photographs of children's faces are pasted onto sexually explicit images of adults' bodies.[42]
One of the cases where the discussed Article 202 4b of Polish Penal Code was used in court was the case of a painter Krzysztof Kuszej. In 2011, Kuszej was charged with committing a number of prohibited acts, including "presenting processed images of minors engaging in sexual acts with intent to sell on an online auction website". 21 pieces of artwork depicting sexual acts between children and priests were secured from the artist's studio. The artist argued in court, that his art is a social commentary on subject of Catholic Church sexual abuse cases, and his artistic measures were adequate for the problem. The expert witness in art history commissioned by the court, Dr Izabela Kowalczyk, stated that these works were art rather than pornography. According to the expert, Kuszej's images do not seduce viewers and their message against child sexual abuse is apparent. Contrary to the expert witness's opinion, the court ruled that the defendant's works did indeed include pornographic content involving minors. However, according to the court, the artist's intent was not to promote the presentation of such content, but only to showcase his position on the condemnation of child sexual abuse. The court found that the artist did not identify his work with child pornography or its dissemination. The defendant could not be proven guilty of committing the crime intentionally, and the court acquitted him of all charges.[43]
Paragraph 1 of Article 242.1 of the Criminal Code of the Russian Federation makes it illegal to create, acquire, store, and/or move across the Russian border (including through the Internet) pornographic pictures of minors for the purpose of distribution. This law also applies to drawings depicting minors, as in January 2019 a court in Bryansk sentenced a woman to three years in prison for posting erotic drawings on her webpage.[44][45]
With the promulgation of the Films and Publications Amendment Bill in September 2003, a broad range of simulated child pornography became illegal in South Africa. For the purposes of the act, any image or description of a person "real or simulated" who is depicted or described as being under the age of 18 years and engaged in sexual conduct, broadly defined, constitutes "child pornography".[46] Under the act, anyone is guilty of an offence punishable by up to ten years' imprisonment if he or she possesses, creates, produces, imports, exports, broadcasts, or in any way takes steps to procure or access child pornography.
In October 2014, Robul Hoque was convicted of possessing up to 400 explicit manga images involving fictional children, in the UK's first prosecution of its kind. He received a 9-month suspended sentence. He was also warned in court that had he been in possession of actual child pornography, he would have been sentenced to jail for a longer term in years.[63]
Real child porn is illegal, considered to be any records of "any situation that involves a child or adolescent in explicit, real or simulated sexual activities, or the display of the genital organs of a child or adolescent for primarily sexual purposes." The adjectives "real" and "simulated" (used in the plural by the rule in art. 241-E of the code of minors)[64] refer to the explicit sexual activities represented, and not to the child or adolescent (if real or fictional product). In other words, what the law sanctions is the participation, real or simulated (through, for example, the use of photomontage technique), of a real child or adolescent in a scene with explicit sexual content. However, drawings and other unrealistic graphic representations of fictional children no matter how offensive including pornography of the subgenre of Japanese manga/hentai lolicon and shotacon are legal and not a criminal offense.[65][66] 2ff7e9595c
Comentários