In a controversial decision, an Australian judge has ruled that a man with a pornographic drawing of the Simpsons on his computer is guilty of possessing child pornography, fined him $3000, and given him two years of something similar to probation.
The main issue of the case was whether a fictional cartoon character could “depict” a “person” under law.
Alan John McEwan had been convicted in the Parramatta Local Court of possessing child pornography and of using a carriage service to access child pornography material, the latter of which has a maximum penalty of 10 years’ jail.
The male figures in the cartoons had what appeared to be human genitalia, as did the mother and the girl depicted in the cartoons.
The magistrate said that, had the images involved real children, McEwan would have been jailed.
McEwan appealed against the decision, arguing that fictional cartoon characters could not be considered people as they “plainly and deliberately” departed from the human form.
“If the persons were real, such depictions could never be permitted,” Justice Adams said in his judgment. “Their creation would constitute crimes at the very highest end of the criminal calendar.”
But Justice Adams agreed with the magistrate. He found that, while The Simpsons characters had hands with four fingers and their faces were “markedly and deliberately different to those of any possible human being”, the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people.
This comes in the wake of the United States’ own Christopher Handley case, in which an Iowa man faces 20 years in jail for possessing the kind of manga I have sitting around in my office:
Handley, 38, faces penalties under the PROTECT Act (18 U.S.C. Section 1466A) for allegedly possessing manga that the government claims to be obscene. The government alleges that the material includes drawings that they claim appear to be depictions of minors engaging in sexual conduct. No photographic content is at issue in Handley’s case.
“Handley’s case is deeply troubling, because the government is prosecuting a private collector for possession of art,” says CBLDF Executive Director Charles Brownstein. “In the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the Federal Government attempting to strip a citizen of his freedom because he owned comic books. We will bring our best resources to bear in aiding Mr. Handley’s counsel as they defend his freedom and the First Amendment rights of every art-loving citizen in this country.”
Mr. Handley’s case began in May 2006 when he received an express mail package from Japan that contained seven Japanese comic books. That package was intercepted by the Postal Inspector, who applied for a search warrant after determining that the package contained cartoon images of objectionable content. Unaware that his materials were searched, Handley drove away from the post office and was followed by various law enforcement officers, who pulled him over and followed him to his home. Once there, agents from the Postal Inspector’s office, Immigration and Customs Enforcement Agency, Special Agents from the Iowa Division of Criminal Investigation, and officers from the Glenwood Police Department seized Handley’s collection of over 1,200 manga books or publications; and hundreds of DVDs, VHS tapes, laser disks; seven computers, and other documents. Though Handley’s collection was comprised of hundreds of comics covering a wide spectrum of manga, the government is prosecuting images appearing in a small handful.
Obviously, the laws of Australia and the US are quite different, and had either of these men owned photographs of actual children engaged in pornographic acts, then they would be getting what they deserve.
However, there are tons of crude humorous comics featuring comics characters doing naughty things out there (Tijuana Bibles, anyone?) In fact, based on both these stories, anyone owning a book by Johnny Ryan or Ivan Brunetti— whose drawings of Mr. Wilson and Dennis the Menace having anal sex are viewed as the height of hilarity by some — could be jailed for 20 years.
Not that I like that creepy moë manga. But as Neil Gaiman points out, freedom of speech includes the icky parts:
The first time the CBLDF did anything to defend one of my comics, it was the Death Talks About Life comic at the back of DEATH: THE HIGH COST OF LIVING, in which we see Death putting a condom on a banana and talking about how not to get pregnant, diseased, or dead. The Chief of Police in (if memory serves) Jacksonville Florida ordered a comic shop not to sell it, because she thought it was obscene and encouraged teen sex. In this case, it only took a letter from the CBLDF legal counsel, Burton Joseph, to the Jacksonville Police Department, explaining the concept of the First Amendment (and, by implication, that there was an organisation prepared to defend this stuff) and they shut up and went away. (That’s what most of the CBLDF activity consists of — small, quiet things that stop the threats to stores or creators ever getting to a court of law.) From the police chief’s point of view, Death Talks About Life was obscene. She wanted it off the shelves. She wanted people protected from it.
For a dissenting opinion, there’s Valerie D’Orazio’s take:
I like the CBLDF a lot, but if they were fighting for the right of a publisher to print images of little children having sex, I’m not interested in supporting that fight. I’m not. I know I would be more popular if I did. But I just can’t do it.
I read stuff like what Neil Gaiman wrote, and it’s like I’m living in a completely different world from him. I can’t relate to it. I’m all for eroticism. I’m not here to take away Playboys, Witchblades, and your assorted avant-garde pornography. But…
Which, to be honest, strikes me as a knee-jerk and emotional reaction that jumps from Point A to Point 473. People who sexually abuse children should be thrown into jail, but owning a dirty picture of Bart Simpson shouldn’t be a crime here or anywhere. It’s hard to see how the two are connected.