Criminal Prosecutions of Manga

Below is a web-friendly version of this CBLDF presentation, which has been delivered to audiences of scholars, lawyers, advocates and readers in the United States & Japan.  Please contact CBLDF about bringing this presentation to your group.

Is Manga A Crime?
Criminal Prosecutions of Manga in the United States & Canada

The Fight To Protect Comics

Comic books have been the object of legal controversy since the 1950s when the Senate Judiciary Committee’s Subcommittee to Investigate Juvenile Delinquency investigated the medium in response to public pressure about its content. Those investigations led to the self-censorship regime of the Comics Code Authority.

Comic Books have been targeted in American criminal courts since the 1970s, with the New York obscenity conviction of two store clerks who sold Zap #4.

A second wave of criminal cases emerged in 1986 when a retailer in Lansing, IL was convicted of possession and sale of obscene materials for selling adult comics to an undercover police officer.

The Comic Book Legal Defense Fund formed to wage the successful appeal in that case. Since then the organization has arranged and paid for the defense in several cases against retailers, artists, and now readers.

Since 2000, manga has been the target of legal controversy.

Manga Is An International Force

Manga, or Japanese comics, and its sister form of anime, or Japanese animation, are a combined global entertainment phenomenon.

Japanese culture has vastly different taboos about sexual content and nudity, leading to misunderstandings and prosecutions of manga here in North America.  With higher popularity and  visibility, prosecutions and challenges  are increasing in the United States & other countries.

In the United States and Canada, manga culture has exploded to accommodate more than 200 conventions every year, ranging from small, local events attracting hundreds, to national events attracting tens of thousands.

A generation of North American readers has grown up on manga and anime. Manga can be found in every major bookstore, and anime is a staple on television.

As the generation that grew up on manga become adults, so do their tastes in manga.  This is making them increasingly vulnerable to prosecution under American and Canadian law, due to cultural differences regarding the content of manga, and problematic applications of obscenity and child pornography laws.

Manga Prosecutions Have Begun

Since 2000, prosecutions and criminal convictions for manga in the United States have begun.  Below we will discuss four:

Texas v. Castillo – A clerk was convicted of selling obscenity for selling manga to an adult.

United States v. Whorley – A reader is convicted for viewing and printing manga of a sexual nature on a public computer

United States v. Handley – After ordering manga from Japan, a collector pleaded guilty to possession of child pornography for owning manga of a sexual nature.

R. v. Matheson – An American reader faced charges of importation of child pornography in Canada for manga on his laptop. After a two year, $75,000 battle, the charges were dropped.

Texas v. Castillo

The first court case against manga in the United States began in 2000.

Jesus Castillo, a clerk at Keith’s Comics, a comic book store in Dallas, TX was arrested and charged with two counts of selling obscene materials for selling manga  to an undercover police officer. The police officer bought the comics, which were labeled “Not For Children” from the adults only section of the store.

The titles at issue were comic book format translations of Demon Beast Invasion: The Fallen and Urotsukidoji: Legend of the Overfiend, two popular horror comics containing strong sexual content.

The prosecutor’s case hinged on the perception of comics as a children’s medium, and the assertion that the manga in question was not art, but was obscenity designed to target youth.

The Defense argued that the comics in question are protected Free Expression under the First Amendment.

Dr. Susan Napier, an Asian Studies expert testified regarding the cultural merit of manga, especially with regard to the medium’s status in Japan.  The status of these manga as part of a larger art tradition was a cornerstone of her defense.

Scott McCloud, comics expert, testified about the artistic merit of the comics at issue, and included statistics demonstrating that a majority of comic book readers in the USA are adults.

A private investigator testified about comparable materials widely available in Texas.

Prosecutors did not offer conflicting expert testimony, only the testimony of the arresting police officer, who is not an expert.

In closing arguments, prosecutors rejected the artistic and cultural merit of both comics generally, and these manga in particular stating:

“I don’t care what type of evidence or what type of testimony is out there; use your rationality; use your common sense.  Comic books, traditionally what we think of, are for kids. … This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. We’re here to get this off the shelf.”

The jury sided with the prosecution.  Castillo was sentenced to 180 days in jail, a $4,000 fine and one year probation.

Attempts to appeal the case were unsuccessful. Castillo ultimately served a period of unsupervised probation.

The PROTECT Act of 2003 (§1466A)

In 2003, the United States Congress passed The PROTECT Act, a sweeping anti-child pornography law that expanded prosecutorial remedies to punish child sex offenses. Unfortunately, the law also created a new crime – producing, receiving, possessing or manufacturing “obscene child pornography” of a non-photographic nature.

Child pornography is photographic evidence of a crime where an actual minor is sexually abused.  “Obscene child pornography” is a new category that criminalizes a non-photographic image, such as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting” that depicts (i) a minor engaging in sexually explicit conduct and is obscene (§ 1466A(a)(1)  and §1466A(b)(1)); or (ii) “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value (§ 1466A(a)(2) and § 1466A (b)(2)))

PROTECT is used to prosecute anime and manga.

U.S. v. Whorley

U.S. v. Whorley was the first case to test manga within the confines of the PROTECT Act.

Dwight Whorley used computers at the Virginia Employment Commission, a public resource, to download manga alleged to depict “children engaged in explicit sexual conduct with adults.” He was charged with “knowingly receiving” child pornography for printing out two cartoons, and viewing others, 19 counts in all.

In 2006, a jury found Whorley guilty for “receiving” obscene cartoons, for which he was sentenced to 20 years in prison, with a 10-year probation thereafter. His sentence was aggravated by a previous conviction for receiving actual child pornography. If this were his first offense, he would have been subject to a minimum sentence of “not less than 5 years and not more than 20 years” in prison.

Whorley was sentenced under the same guidelines governing actual child pornography.

U.S. v. Handley

Christopher Handley, a manga collector, was arrested in 2006 after postal inspectors viewed a package of manga he ordered from Japan. After receiving his package at the post office, he was followed to his home and served with a search by federal and local police who seized his lifetime collection of manga and anime – over 1,000 of books & magazines, hundreds of DVDs, and seven computers.

Handley was a model citizen with no criminal record.  He was a computer programmer who served in the U.S. Navy, was disabled, and took care of his disabled mother in her home. His passions were manga and bible study. He possessed no photographic pornography of any kind.

Handley was a collector of manga as a whole, and the vast majority of manga and images he possessed contained no fantasy representations of minors at all.

When Handley awaited trial, prosecutors did not distinguish between manga and obscene material. They prohibited him from viewing or accessing any manga or anime on the Internet, ordering anime video or written material, or engaging in Internet chat, the latter harming his ability to prepare his defense.

Handley was also forced to undergo mental health counseling.

Unlike Whorley, who was convicted for mere possession of sexual images of minors, the court in Handley found that the images must be found obscene to be convicted.

Despite this one positive development, the government assumed an aggressive posture towards Handley, and ultimately he chose to plead guilty rather than face a mandatory minimum sentence of 5 years in prison.

Court documents show that Handley had no history of criminal behavior, possessed no actual photographic pornography of any kind, and posed no danger to anyone in his community. In sentencing documents, the government argued that the mere possession of graphic manga represented a form of “sexual deviancy” that required imprisonment to be followed by psychological treatment and supervision.

Handley was sentenced to 6 months in prison to be followed by three years of supervised release running concurrent with five years of probation, and forfeiture of all material seized by police.

Handley was ultimately convicted for receiving and possessing obscene cartoons for possessing seven (7) books:

  • Mikansei Seifuku Shōjo (Unfinished School Girl) by Yuki Tamachi (LE Comics)
  • I [Heart] Doll by Makafusigi (Seraphim Comics)
  • Kemono for ESSENTIAL 3 (THE ANIMAL SEX ANTHOLOGY Vol.3) by Masato Tsukimori et al (Izumi Comics)
  • Otonari Kazoku (Neighboring House Family) by Nekogen (MD Comics)
  • Eromon by Makafusigi (Seraphim Comics)
  • Kono Man_ ga Sugoi! (This Man_ is Awesome!) by Makafusigi (Seraphim Comics)
  • Hina Meikyū (Doll Labyrinth) by Makafusigi (Seraphim Comics)

R. v. Matheson

In 2010, Ryan Matheson a 25 year old American citizen, computer programmer, and manga fan was unlawfully arrested & abused by Canadian authorities. He was wrongfully accused of possessing and importing child pornography because of constitutionally protected manga on his laptop – before he was let into the country!

Ryan suffered severe abuse by the authorities. He wasn’t properly informed of the reason for detention. He was denied access to counsel & the American Embassy. The search of his property was illegal. He suffered cruel & unusual punishment, including being denied food and blankets. Police transporting him to prison actually said “if you get raped in here, it doesn’t count!”

Like Handley, Ryan had no criminal record, and was not in possession of any photographic material.

Ryan was released to await trial, but one of the conditions was that he was not allowed to use the Internet outside of work at one specific company.  For two years his life was frozen under this false accusation.

The material Ryan was accused of possessing was innocuous. One image, below, “The 48 Positions: Moe Style” is a parody of two famous images. The other was a common doujinshi, or fan-made comic book, depicting a fantasy scenario between non-human characters.

CBLDF aided Ryan’s defense, which included expert testimony about the artistic merit of manga; the fact that the material he is accused of possessing is protected speech in his home country of the US; and that the material is accepted in its origin country of Japan.

As a result of Ryan’s strong defense, the Canadian government dropped all charges against Ryan earlier this year.

In addition to substantive aid, CBLDF assisted Ryan’s case financially. Ryan’s total legal fees totaled $75,000. CBLDF has contributed $30,000 to those expenses to date, and our colleagues at Canada’s Comic Legends Legal Defense Fund contributed $11,000. We are currently fundraising to restore the final $34,000 Ryan was forced to spend defending himself against these outrageous charges. To help us, please make a donation.

The Cloud of Self-Censorship

In North America, some Customs & law enforcement officials still regard manga as a code word for pornography.

Cartoonists and readers are curtailing the content they carry across borders, fearing harassment or prosecution for carrying comic books that are protected by the First Amendment in the USA. Many of these comics are innocuous.

Academics studying Japanese culture have expressed fear that studying sexually focused manga will make them targets for prosecution.

Artists feel vulnerable carrying digital files across borders if their art is sexual in nature.

Manga Is Protected Speech

Forces urging censorship of manga, in both the United States and Canada, tend to be ignorant of what manga really is.  Manga, like comics, is a medium, not a genre, and it encompasses a wide range of expression that speaks to audiences of all ages and interests.

Art is not child pornography. Art provides a safe place for individuals to explore culture, identity and ideas. Prosecuting individuals for possession of comics does not prevent or punish the sexual abuse of real people.

Manga and comic books are realms of legitimate speech that are protected by the First Amendment.