Last week, we reported on a disturbing case in the UK, where Robul Hoque, a 39-year-old UK citizen was convicted of possession of child pornography as a result of owning manga-style images and anime. On its face, a successful child pornography prosecution should be praised, but in this case, the man who was arrested and given a 9-month suspended sentence didn’t hurt any children. The case echoes many similar ones that CBLDF has defended in the United States and indicates that in many Western countries, possession of adult manga can still be considered a crime.
CBLDF was not involved in the case, and we can’t speak to any specific knowledge of the images for which Robul Hoque was prosecuted. Based on reporting, the following appears to have taken place:
- Officers searched Hoque’s home on June 13, 2012, and seized 288 still images and 99 animated images.
- Of the images seized, Hoque was charged for 20 of them. Hoque initially pled not-guilty, but took a plea for 10 of the charges.
- Hoque’s lawyer, Richard Bennett, argued that the images were not child pornography because they are cartoons. Further, Bennett argued that they were available from legal porn sites, stating “There’s no indication at all on the web page that these would fall foul of any legislation in a particular country.”
- Before making his decision, Judge Tony Briggs cited that “It is important to emphasise that there were no actual children or perpetrators involved.” Regardless, Briggs sentenced Hoque, stating that “This is material that clearly society and the public can well do without. Its danger is that it obviously portrays sexual activity with children, and the more it’s portrayed, the more the ill-disposed may think it’s acceptable.”
- This is Hoque’s second time as a “test case” in the UK: He was prosecuted in 2008 for making six “indecent pseudo-photographs” of children. Hoque was given community service and ordered into sex offender treatment. At the time of this prosecution, the possession of manga-style pictures was not yet illegal.
- Photographs of actual child sexual abuse have not been found in Hoque’s possession in either the 2008 case or the most recent prosecution.
In the 2008 case, Hoque was prosecuted under the Criminal Justice and Public Order Act of 1994, which amended the Protection of Children Act 1978 to include “pseudo,” or manufactured, photographs of children. In the most recent case, Hoque was prosecuted under the Coroners and Justice Act of 2009. The act defines a prosecutable image as “a moving or still image (produced by any means)” that depicts someone under the age of 18. There are exemptions in the law for some film images, but there is no such exclusion for drawn depictions.
The legal revisions that resulted from the Coroners and Justice Act of 2009 were intended to address child advocates’ concerns over computer-generated images of child abuse, but many felt it overreached and stifled creative expression. As written, the law could be applied to meritorious and challenging artistic works. Shortly before the 2009 act passed, a coalition of comics creators, publishers, and MPs condemned the law, arguing that it could lead to the ban of artistic erotica, such as Lost Girls, and comics such as Watchmen. CBLDF Advisory Board co-chair Neil Gaiman was among the creators who supported the campaign against the law.
CBLDF spoke with Emma Flett, an intellectual property partner in the London office of Kirkland & Ellis, who had this to say about the case:
“This case illustrates how English law has evolved in that illegality is no longer limited to indecent photographs but can now extend to images, even of imaginary children. This has blurred the lines of what can be deemed ‘legal’ in the cartoon world.”
The English law has a U.S. counterpart: 18 U.S.C. § 1466A, which arose as a result of the PROTECT Act of 2003 and criminalizes “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting” that depicts a minor engaged in sexual activity. The U.S. affords slightly more protection: The law mandates that the images in question must also be considered obscene as defined by the Miller test. The Miller test mandates that a work, taken as a whole, is obscene when it (1) appeals to the prurient (e.g., shameful or morbid) interest in sex; (2) portrays sex acts (as defined by statute) in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value. The work must be considered as a whole, which means an image cannot be isolated, and all three parts of the test must be met for a work to be legally obscene.
Regardless, Americans have been prosecuted for drawn images. In 2010, Christopher Handley, a manga collector in Iowa, was successfully prosecuted under PROTECT for possessing manga featuring “obscene visual representations of minors engaged in sexual conduct.” Out of an encyclopedic collection that included thousands of manga and anime videos (all of which were seized and ultimately forfeited to the government), Handley was prosecuted for a handful of images. Unfortunately, Handley took a plea rather than face a very intimidating set of charges and federal prosecutors, and CBLDF was not able to argue on his behalf.
In October 2012, Missouri resident Christjan Bee was sentenced to three years in federal prison for material the government described as a “pornographic cartoon, which depicted children engaging in sexual behavior.” In recent years, CBLDF has assisted in several legal actions involving similar allegations, successfully quashing the investigations before charges are brought.
Joshua Simmons, an intellectual property attorney in Kirkland & Ellis’s New York office, shared his thoughts on Hoque and PROTECT:
“While this case was decided in the United Kingdom, it also highlights an important tension in United States law. In the United States, 18 U.S.C. § 1466A criminalizes the production, distribution, and possession of so-called ‘obscene visual representation of the sexual abuse of children,’ which includes drawings, cartoon, sculptures, and paintings. As a result, the statute has come under scrutiny by First Amendment proponents, like the Comic Book Legal Defense Fund, as it may criminalize some speech that is neither child pornography nor obscenity. Several courts have been asked to consider the constitutionality of the statute, each reaching different conclusions as to different provisions. Thus, the case in the United Kingdom and those in the United States are likely to continue the debate over whether and, if so, how broadly our laws should criminalize similar illustrations.”
Manga presents a further challenge for many prosecutors because of fundamental misunderstandings about the format, especially in Western countries. By definition, manga — and any drawn image — cannot be child pornography. Child pornography is photographic evidence of a crime in which a real person is being subjected to real harm. No real people are harmed in the creation of drawings, and prosecuting individuals for possessing art is a dangerous infringement on rights.
Clearly, the risks of possessing manga and other constitutionally-protected drawn images remain very high. CBLDF General Counsel Robert Corn-Revere describes those risks in a FAQ for CBLDF:
It is important to know that constitutional protections are not self-enforcing. Law enforcement authorities or customs agents may have a different threshold for what they consider to be obscene, harmful to minors, or child pornography.
For example, comic book purveyors have been prosecuted under “harm to minors laws” for furnishing young customers with titles (even inadvertently) that included a few panels of nudity, and references to (though not depictions of) masturbation. Such cases illustrate important issues in cases involving “harm to minors” laws.
Generally, there is a lower (and less well-defined) threshold for the type of content that may trigger a controversy or a prosecution, but that could not support an ultimate conviction. Also, because “harm to minors” laws seek to limit distribution of materials to minors but cannot impose a ban for adults, the central inquiry may focus on how materials are displayed and marketed.
The differing threshold for what might trigger an inquiry has a special application when crossing national boundaries… For various reasons, fewer legal protections are available in this context.
Ryan Matheson learned the risks of collecting manga first hand — and the reduced legal protections available at borders — in 2010, when he was arrested by Canadian border authorities for carrying constitutionally protected comic book images on his laptop from the U.S. into Canada. Canadian officials charged him with the possession and importation of child pornography for a pair of manga images, and he was subjected to abusive treatment by police and a disruption in his life that included a two-year period during which he was unable to use computers or the internet outside of his job, severely limiting opportunities to advance his employment and education. CBLDF helped Matheson defeat the charges, but it required substantial resources — resources that would be better spent on identifying and prosecuting people who had actually harmed a child instead of persecuting someone for drawings.
We may find the images that Hoque possessed reprehensible, but they shouldn’t be criminal. There was no evidence that any actual children were harmed, and the same was true for Handley, Bee, and Matheson. These men were not found in possession of photographic evidence of a crime — the sexual abuse of children — and time and money were spent to prosecute them for the possession of images that did not harm children. If the Criminal Justice and Public Order Act and the PROTECT Act are intended to protect actual children, then the resources they engender should be used for that purpose, not to prosecute people for the possession of drawn images. Instead of criminalizing child pornography, these laws criminalize speech and thought, putting drawn images — and the people who make and collect them — in the crosshairs.
For more information about obscenity laws and your rights as a comics fan, visit CBLDF’s Understanding Your Rights FAQ.
Many thanks to Emma Flett and Joshua Simmons of Kirkland & Ellis for their contributions to this article.