200812091319In 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.


  1. The reason child pornography is illegal is because it harms real flesh and blood children who can’t defend themselves. NOT because it’s icky or whatever other adjective anyone wants to give it.

    There are no children in cartoons or animation. These people are trying to legislate a person’s thoughts, and it’s unacceptible. I don’t care if someone has virtual reality constructs of realistic children which they do unspeakable things to on a daily basis. IT’S NOT ILLEGAL nor should it be! They’re not hurting anyone, and the purpose of the law is to protect people not cartoons. Any sane person would know the difference, and it kills me that people in positions of authority so often can’t seem to do that.

    Valerie said “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.” You would be hurting the causes you did support by pulling your support for the CBLDF as a result. The CBLDF isn’t a vote with your wallet organization, thankfully. They exist to do what’s right, and that doesn’t always fit in with everyone’s idea of righteousness. You’re free to have an opinion just as everyone else is, but you absolutely should not imply that you would no longer support the fight of the CBLDF as a result of them doing EXACTLY what they exist to do.

    A majority of people absolutely wish that stuff didn’t even exist, but that doesn’t mean the majority has the right to stop it. Cases like this do nothing but muddle the laws and prevent the legal system from doing what’s really important–protecting the PEOPLE. They should have never gone to court. So, in a sense, I agree that we shouldn’t be supporting this type of fight… because it shouldn’t even have been a fight in the first place.

  2. I believe it’s also a law now that when discussing comic books and pornography, you have to mention LOST GIRLS.

  3. What Fred writes above is correct as long as you preface it with “According to the U.S. Supreme Court in its ruling in Ashcroft v. Free Speech Coalition…” A 6-3 majority in that case stated that protecting real children from exploitation (and by extension punishing those who promote it) was the only legitimate purpose of laws against child pornography. That ruling doesn’t apply outside the U.S. however.

    The U.K. and German governments, on the other hand, have passed legislation specifically banning CGI child pornography (on the grounds that it promotes the thoughtcrime of imagining child sexual abuse), and now we have the Australian courts criminalizing illustrations (apparently using the same line of thinking). The difference? The United States has 1) the First Amendment, and 2) a Supreme Court that has upheld it, even when emotional reactions make that unpopular. If the First Amendment doesn’t protect unpopular – even “icky” speech – it’s pointless.

  4. The photo you have shown could be considered Child pornography (because if this was a photo of a child flashing, it might be). The movie show’s Bart’s privates, and Bart naked, so it could be considered pornography. This is a very worrying precedent.

  5. So could The Little Prince cartoon, which aired on Nickelodeon years back. I remember being surprised as a youth to see little animated Prince bits on afternoon television when I was in high school.

  6. “The U.K. and German governments, on the other hand, have passed legislation specifically banning CGI child pornography (on the grounds that it promotes the thoughtcrime of imagining child sexual abuse)”

    Apparently the UK and Germany exist inside the world of Minority Report.

  7. “When were the Simpson’s created?
    They first appeared on TV on April 19, 1987.
    Thus Bart Simpson and all are at least 21 years old!”

    Besides that, Bart’s voice is that of an adult woman!

    So, are we looking at some sort of weird child-pornography/transgendered thing?

    That Australian judge should have just given the guy the boot!

  8. “Apparently the UK and Germany exist inside the world of Minority Report.”

    More inside an orwellian state, in a country, were posters for a “Maus”-exhibition could be confiscated by police for promoting fascism … ok, that was almost 20 year’s ago, but it’s rather hurtful story.

    And just last mont the german law invented the terminus “youth pornography”, which means, that any depiction (real or irreal) of people between the age of 14 and 18 having sex ist now illegal too. The terminus “near real” (means CGI, but could also mean realistic illustrations, the text is not very specific on that, and could mean just writing about sex of people between 14 and 18) can since also be found in german law.

    more than that, the depiction of people who LOOK LIKE people between 14 and 18, but are clearly older, is now illegal too in germany.

    i’m grown up in the sort-of-dictatorship of the GDR up to the age of 14 with no freedom of speech or art at all, and, man, all this give’s me a very bad feeling.

  9. Apparently things are going so well in Australia they have time to deal with something like this.

    I would argue that Bart and Lisa are just adult cartoon “actors” who happen to be slight of build playing cartoon children. Like Linda Hunt in “Year Of Living Dangerously” when she played an Asian boy. I mean the show has been on the air for 20 years. They can’t actually still be nine or ten years old.

  10. So could midget/dwarf pornography (not my cuppa) be considered depicting underage sex acts? What about someone like Tila Tequila, who is diminutive in size? And what about someone who graduates from MIT or Harvard at age 16? How do you judge emotional and mental maturity? (Yes, “for mature adults” is ironic, when much of the material appeals to immaturity.)

    As for Germany, there’s a lot of manga which is borderline in age depiction. Besides, with 20-something actors depicting high school students, there’s a whole beehive of problems waiting to be unleashed (or, for our German friends, “die Büchse der Pandora öffnen”).

  11. If cartoon characters are legally real people in Australia, someone should demand that they investigate the murders of Benjamin Parker and Thomas and Martha Wayne.


  12. I’m afraid the statute of limitations has run out on both of those cases. The prosecutor’s office is considering charges in the death of Sue Dibny, however.

    A little more seriously: I’m curious how this judge would deal with a character such as Peter Pan, who – as his creator took pains to explain – is decades (at least) old, but happens to refuse to grow up?

  13. >> I’m afraid the statute of limitations has run out on both of those cases.>>

    Well, there’s no statute of limitations on murder.

    But aside from that, anyone in Australia possessing a cartoon depicting Batman’s or Spider-Man’s origin is guilty of trafficking in snuff films, or the pictorial equivalent.

    The live-action movies don’t apply, of course. Actors aren’t people.


  14. Huh, so it would also be illegal, I’m guessing, to own a copy of American Beauty? Since that not only depicts nudity of two minors (one of which is being creppily hovered over by Kevin Spacey), but depicts the nudity of an actual minor (as Thora Birch was only 16 at the time).

  15. No, no, no.

    Actors aren’t people.

    Cartoons are people.

    Some Australian movie company needs to make a Mickey Mouse cartoon, and when Disney tries to sue, demand that they produce his employment contract. People can’t be owned.


  16. @ Fred and Stefan

    I can see practical reasons for banning near-real kiddie porn, assuming it’s well enough done to be superficially indistinguishable from the real thing–enforcing a ban on one and not the other would create substantial logistical difficulties for law enforcement in cases where quick response–i.e. finding perps who are actively vicitmizing kids–is tremendously important. It also shares borders with a number of other legally grey areas–i.e. whether it should be legal for an individual to take non-pornographic photos of actual kids and digitally alter them into pornography; whether it matters if such modified artwork is distributed semi-publicly; the sources of the original photos, etc.

    I’m not necessarily advocating for such a ban, but I don’t think it’s nearly such a cut-and-dried, free-speech-versus-fascist-thought-police issue as you assume.

  17. Rachel,

    Interesting post. However, I mostly disagree.

    The only reason I would want to ban something like digitally altering photos into becoming pornography is that if the person in the photo did see it eventually, they would likely be upset about it which is the purpose behind outlawing child pornography in the first place. I don’t have a problem with it on a personal level if someone did that to a picture of me as a child (even though I reserve the right to call them names), and I would prefer that they did that instead of going out looking for kids to do things to. I would take one for the team in this case.

    For me, it just comes down to “near real” isn’t real and harms no one. Policing thoughtcrime is a road which should never be traversed. There are levels of questionable content, but it all comes down to what really matters. In this case, what really matters is protecting children. No children are involved. End of story.

  18. One point seems essential to me: why the hell should someone, who possesses a pornographic Simpsons-cartoon, be pedophile? He could as well just be an Simpsons-Collector or someone, who knows the Simpsons (and who doesn’t?) and was curious about the more extreme parts of Simpsons-Fan-Fiction.

    I really have a problem with that easy mixing of so-called-childpornography and pedophilia. There are more than a dozen ways to explain the possession of pictures like these easily without any sign of pedophilia.

    I myself find it hard to imagine pictures of the Simpsons having sex as being pornographic at all. It’s just too unreal.

  19. How in the world do you determine the age of a cartoon? I understand this is disturbing, but as someone else pointed out above, there is no physical harm coming to anyone. If we start prosecuting people for potentially thinking a crime, we might as well step back a couple thousand years where so much as looking at your neighbor’s wife got you stoned to death.

    I think it’s sufficient to say that everybody has broken the law in their minds at some time in their lives, whether it’s sexual in nature, thinking about getting revenge on someone who hurt us, stealing from others, etc. Studies have shown that many obsessive compulsives have a tendency towards violent, unwanted thoughts. But the difference between thinking about something violent and an actual crime lies in its ACTION. Any person can have violent thoughts, but it’s a moral person who choses not to act on them.

  20. I’ve read 3-4 accounts of the events leading to the ruling, and I find myself piqued that none of them mention how the police came to have access to MacEwan’s computer.

    I’m guessing that the mention of his using the “carriage service” to obtain child porno made it possible for the cops to get a warrant and toss his house.

    Does anyone know?

    I find myself wondering that if the cops charged MacEwan with using this “carriage service,” then why didn’t they catch him with porn he’d got from the carriage service? Surely that wasn’t purely cartoon porn, and catching a previous offender (which MacEwan was, according to Wiki) with the Real Thing would have been the tougher (and, from the prosecution’s POV) preferable course.

    With no other info than these snippets to go on, I can only assume that MacEwan, perhaps because he was a previous offender, got rid of any incriminating “stash”– unless he never actually had any in his possession and was thus innocent of all charges. The cops tossed his place and found nothing but the computer-cartoon, and decided to use it as a last resort to make their case.

    So, even though a cartoon is now a real person, it’s still sort of like the last guy selected to join the baseball team…

  21. Studies have shown that many obsessive compulsives have a tendency towards violent, unwanted thoughts.

    As an obsessive-compulsive myself, I can say that this is absolutely true. Back in 2006 I had a period where I had unwanted violent thoughts popping in and out completely randomly, and scaring the absolute crap out of me. There is no horror quite like being afraid of yourself.

    Thank God for cognitive-behavioral therapy. The best thing I learned is that beating OCD isn’t about suppressing these bad thoughts, but learning not to be afraid of them. After all, they’re only thoughts. Just having them doesn’t mean you’re going to carry them out. Now I hardly even have them, much less allow them to bother me.

    Why shouldn’t sexual fantasy work the same way?

  22. I was curious as to which cartoon it involved, since Maggie appears in very few (that I’ve seen) and is nearly always depicted as an adult.