I own kiddie porn! AKA Christopher Handley case is truly scary

Great Debates
1

So ComiPress has a summary of the Christopher Handley obscenity trial (later half of this article). The article is by one Lawrence A. Stanley, who seems to be a pretty skeevy guy (if it’s the same guy), but a) he is a bona-fide lawyer with a background in child pornography law, and b) he has a point: this case is part of an extremely disturbing attempt to broaden the definition of when material can be prosecuted as obscene, and specifically as child pornography.

I am not a lawyer, and the current US law on child pornography looks like a mess to me; there appear to be conflicting recent rulings on whether or not a work must involve actual children to be considered child pornography. I think that, as of right now, works with real minors are prosecutable even if not obscene, while works with only drawings of minors must also be obscene.

Currently, however, possession of “obscene” material in and of itself is not a crime. In US vs Handley, the prosecution argues that if a work contains obscene depictions (which pretty much implies pictures, since text is rarely prosecuted), and specifically obscene depictions (as, for example, illustrations or computer art) of individuals who appear to be minors, then it may be legal to own that work but illegal to distribute or purchase it. Mr Handley owns material that the prosecution alleges is obscene and which he purchased from out-of-state (from Japan, in fact); thus the prosecution argues he can be prosecuted for “receipt of obscene materials that were transported in interstate commerce”.

Here’s the relevant definitions from the Federal statues on “Obscene visual representations of the sexual abuse of children” (emphasis added):

Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that – (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene; [del]or (2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and (B) lacks serious literary, artistic, political, or scientific value[/del]; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

(Note that as far as I can tell part 2 of this has been already struck down, as it did not conform to the Miller test for obscenity.)

And here’s the definition of “sexually explicit conduct” (used in part 1A of the above) (emphasis added):

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse whether the genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality; (II) masturbation; or (III) sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.

(Gotta love the way it rates breasts, masturbation and “exhibition of the genitals” right up there with bestiality and “sadistic abuse”.)

Community standards (as imposed by the Miler test) being what they are (i.e., whatever the jury says they are), the only certain defense for material depicting sexual images, particularly of minors (even “lascivious” nudity), is “serious literary, artistic, political, or scientific value”. Unfortunately, this is a pretty frail reed; it’s expensive and time-consuming (and not always possible) to convince 12 of the best and true from Upper Armpit, Peoria (or wherever) that dirty pictures (especially of minors) can be Art!

Now actual child pornography is something that were’re almost all agreed is a bad thing. So why do I care about fake child pornography? Because if Iowa wins this one, there’s quite a good chance that I own some. A lot, actually. And all of it is though “interstate commerce” and/or the web.

On the shelf over there, I’ve got Debbie Drechsler’s Daddy’s Girl, which is, in part, about a girl who is sexually abused. It’s got some pretty disturbing pictures. I’ve also got Phoebe Gloeckner’s A Child’s Life, a collection of autobiographical short stories; Ms Gloeckner ran away from home at age 16 and became a drug-addicted teenage prostitute (and later a successful illustrator). It’s got some even more disturbing pictures. Throw in the autobiographical comics by male cartoonists who want to talk about their teenage sexual hangups and compulsive masturbation (Chester Brown, Justin Green…), and I’ve probably got the “150 to 300” images that Mr Handley is being charged with right there. (Let’s not even talk about Alan Moore’s Lost Girls. I was afraid I was going to be arrested just for looking at it on amazon.)

Let’s see what’s on the computer! Adding intellectual property violations to my list of misdeeds, I have illegal scans of the 10 volumes of Keiko Takemiya’s Kaze to Ki no Uta (Poem of Wind and Tree), in which two boys (15? 16? I don’t think their ages are ever explicitly given, but pretty damn young) at boarding school have a tragic and doomed love affair; in amongst the architectonic angst and sparkling crystal tears it’s got a few actual sex scenes (extremely tame by today’s standards but positively shocking in 1976). I’ve also got Moto Haigo’s Heart of Thomas (more 1970’s underage-schoolboys-in-love tragedy), and all 17 volumes of her Zankoku na kami ga shihai suru (A Cruel God Reigns): a 16 year old boy who is being horrifically sexually abused by his stepfather murders the guy (accidentally killing his own mother in the process) and wrestles with his demons while the dead man’s son first tries to expose him for the crime and then falls in love with him. That one’s got lots of disturbing pictures.

All three of those are groundbreaking, award-winning shoujo manga classics (Takemiya and Hagio are among the gods of shoujo manga), but let’s face it, the average schmuck thinks manga is porn anyway; Mr Handley’s Pre-Trial Officer noted with alarm that Mr Handley is still interested in “anamie”, visits that infamous porn site www.animenewsnetwork.com, and has looked up information on the Gothic and Lolita Bible (which could lead to him being able to purchase frilly black dresses!! :eek: )(no seriously, it’s a dress-up catalog for teenagers who want to look like Victorian dolls, only more monochromatic).

And if you throw in the “appears to be a minor” clause, well then I’m damned: half of the shojo, josei, and yaoi manga I’ve got is done in some sort of moe style that makes the characters look positively prepubescent, even if they’re supposed to be 20something college lecturers or manga editors.

It’s not clear what Mr Handley had that got him in trouble; the current best-guess is that it’s some kind of doujinshi (self-published comic book). But the judicial opinion (PDF) that I was able to dig up on the web makes it clear that the work’s status in Japan is irrelevant and that in order to show that the work in question is not obscene, artistic value and community standards must be decided though jury trial. Which is costing tens of thousand of dollars.

So anyway, if you have a spare dollar, contribute to the Comic Book Legal Defense Fund, which is handling Mr Handley’s defense. And maybe mine, after the FBI reads this post.

JRB, respectable 30-something woman who has never molested any children whatsoever and has no intentions of doing so, unless you count making 2-year-olds take a bath after spilling ice cream all over themselves. :rolleyes:

2

Well, there are some Japanese manga (even non-doujinshi) which would be considered obscene by community standards pretty much anywhere in the USA. I expect the Japanese aren’t too proud of them either.

If you’re going to have an obscenity law, some people are going to run afoul of it. But I would distinguish between a publisher & a collector.

3

Romeo and Juliet had a sexual relationship and Juliet wasn’t quite 14. Is that “child porn” under this over-broad definition?

The reason for laws against child porn is to protect actual children. No work of art that doesn’t involve an actual child should be considered pornographic.

4

Given that the best evidence is that pornography decreases rape, it seems decently likely that fake child porn is going to decrease pedophilia. Perhaps not, but short of any evidence that fake child pornography is harmful to anyone in any statistically meaningful sense, it seems rather silly to have any laws in regards to it.

5

It’s a frightening thought that the most powerful nation on Earth is so hung up on something as normal and natural as sex. One wonders what other distortions shape the American psyche :wink:

6

Particularly the Manga Romeo and Juliet. (I haven’t checked it to see how “graphic” the depictions are of the sexual relationship between the young Montague and the young Capulet).

7

I am astounded by the abilities of people to determine whether something is obscene or child pornography without actually having to bother to see it.

Here is the District Court’s ruling on Handley’s motion to dismiss. It’s not particularly out of the ordinary (except an interesting discussion on whether the legislature can broadly declare that certain things are obscene, I don’t, and it appears the Court doesn’t, think they can). It recounts that obscenity isn’t protected by the First Amendment, the Miller test, and then states: “Whether the materials at issue have serious literary and artistic value and thus are not obscene is a factual determination most appropriately made by the trier of fact at trial.”

I won’t take any position on whether the items he ordered were obscene, because I haven’t seen them and don’t know much (other than some facts gleaned from the opinion) about them. That seems to me to be the smart thing to do.

8

If we know that they’re not photographs but rather are manga/comics/drawings, then isn’t it safe to say it can’t be dangerous to children, and therefore there is no reason to ban it?

9

It’s not being prosecuted solely as child pornography (which after Virginia v. Black became problematic for virtual child porn, drawings, etc.), it’s being prosecuted as obscenity involving a minor. If you think that the government has no business regulating obscenity whatsoever, have at it. I, and the caselaw, disagree, but it is certainly an arguable position.

10

I believe the party line is that such material contributes to the desire to have real pictures of children, thus endangering children that way. Sort of a ‘gateway’ child pornography.

11

This is the same file I linked to in the OP.

The material that Handley is being charged with, as I said, has not been identified, so no one not connected to the case has had the opportunity to see it and decide for themselves whether it constitutes child pornography. My point is not that “whatever-it-is that he has is perfectly acceptable to all and sundry and cannot possibly be kiddie porn”; it is that this is a move to criminalize
[ul]1) simple possession[/ul]
[ul]2) under child pornography statutes (with enhanced criminal penalties compared to simply “obscene” works) [/ul]
of representations of underage sexuality that
[ul]3) do not involve an actual minor child.[/ul]

I am aware that it appears to be a requirement for prosecution, under the charges as they now stand, that the material be judged obscene. My objections to this are that the process for deciding whether a work is or is not obscene requires a great deal of time and expense, by way of a jury trial: as you quoted, “Whether the materials at issue have serious literary and artistic value and thus are not obscene is a factual determination most appropriately made by the trier of fact at trial.”

I feel, and feel strongly, that this is an onerous and restrictive standard. If simple possession is a crime, and we must, for each individual work, demonstrate through trial in a court of law that that work is not obscene in the resident’s jurisdiction, then anyone who possesses any graphical depiction of a minor child, or a character that appears to be a minor child, which includes sexualized content (even so much as “lascivious” nudity), goes at risk of prosecution at all times.

Consider the list of items that I personally possess that contain “sexually explicit conduct” of minors; I would argue that each and every work l own is 1) not pornographic and further 2) has serious artistic and/or literary value and is thus protected under Miller. Am I certain that if I were to move to some repressive part of the country (let’s say, oh, Iowa), these works would not be considered pornographic by some government flunky and subject to prosecution if discovered? I am not. Do I have the millions of dollars it would take to individually clear each work of obscenity charges in trial? I do not.

The very reason that Poem of Wind and Tree and Heart of Thomas have not been translated into English is the potential publishers’ fear of prosecution under child pornography charges, despite these work’s influential nature and literary, artistic, and historical value; the judicial opinion filed in regards Handley’s motion to dismiss clearly indicates that a work’s status or regard in its place of creation has no relevance in determining whether it is obscene in Iowa, thus there is no way to prove a priori that these works are not obscene.

People have been prosecuted as distributing obscene material for depictions involving simple adult nudity in nonsexual contexts (this case ended in dismissal, however this seems to have had more to do with assorted missteps by the prosecution versus any determination that the material was not objectionable). Images of minors will certainly be more controversial and thus more likely to invite prosecution.

12

Ah, like candy cigarettes.

13

It’s obscenity with a minor, not child porn. From the opinion, it’s pretty clear that this isn’t child pornography with real children, but instead drawings he ordered from Japan.

From the opinion: "Defendant is not charged in counts one through four with mere private possession of obscene materials. … While mere possession of obscene materials within the privacy of an individual’s own home is a right protected by the Fourth Amendment, the zone of privacy recognized in Stanley is not unlimited.

We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene materials simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others. Nor is there any correlative right to transport obscene material in interstate commerce."

As the opinion states, he’s not charged with “simple possession”, but rather “possession of obscene materials that had been transported in interstate commerce.” While it walks a very thin line of being overly legalistic, the fact is that the items he had in his house were, at some point, transported across state lines (and in this case imported from Japan), which destroys the Fourth Amendment protections for simple possession.

Again, it’s obscenity depicting a minor, not child pornography. If one accepts obscenity can be made illegal, I don’t see a problem with allowing Congress to punish obscenity depicting a minor more severely than obscenity involving adults.

Obscenity is not required to involve actual minor children. It never has.

I’d much rather obscenity be determined by a fair trial, requiring unanimous opinion of 12 people and reviewed by professional judges on appeal if convicted rather than by some government board deciding it, or the legislature outlawing everything.

I think you misunderstand the burden of proof. The government has to prove, beyond a reasonable doubt and by unanimous verdict of 12 jurors and, at the very least, the tacit approval of the trial judge, that the material IS obscene. The defendant does not have to demonstrate that it’s not obscene. And I’ve never been one for the slippery slope argument.

I’d rather not. I don’t know them, haven’t read them, and wouldn’t make a determination if they are obscene. I’m pretty sure that they are NOT obscene, and would be willing to wager that you will never, ever, ever be arrested, let alone convicted, of obscenity for the things listed in this thread.

I’m not sure I read the wikipedia article the way you did. The “simple adult nudity” comics were charged, not because they were obscene, but because he gave it to a minor child. Lee, however, did have a prior charge for distributing obscene materials to an adult. In that case, I haven’t seen the comic’s Lee was convicted of, so I won’t offer any opinion as to whether or not the verdict was proper. But I will agree to a point that obscenity laws can be, and have been, improperly used to charge people for things I don’t think are obscene. That doesn’t mean we should scrap the law.

14

I’d say “overly legalistic” pretty much nails it. IANAL, as I said before, but what good is the right to own something but not to purchase or transport it? You can only have smut if you inherit it?

I fully understand the burden of proof. My point is that to apply said burden of proof, the possessor/purchaser of the work in question must take the case to trial, which costs what, around $50-100K for a “simple” case? How is this not a barrier to dissemination of works that have merit but contain potentially objectionable content?

Well, yes, because I don’t live in Iowa and I don’t get packages from Japan and probably also because I’m female and for some reason people don’t think “OMG porn!” applies to women. But I have refrained from buying the Japanese editions of the books I mentioned, even though I would prefer them in hard copy, for fear of exactly the scenario that Handley stepped into; some postal inspector opens the package, freaks, and calls the cops.

I reread the judicial opinion file and I can’t find any description of the stuff charged under 1466A except that it’s from Japan and contains some sort of putatively obscene sexual depiction of a minor; there is a brief description of an item that, as far as I can tell, Handley mailed to a third party (count 5), which apparently contains bestiality, but I think it is a different item than the item(s) in counts 1 through 4. I have no reason to believe that Poem of Wind and Trees or A Cruel God Reigns (or other works such as Modoru Motoni’s Shiiku Gakari Rika that I would in a perfect world like to own in print) would not lead to an equivalent investigation if discovered.

15

I’d go farther than saying it’s “overly legalistic” – it’s downright insane. “Yes, ostensibly you have the right to possess this item, but if the item in question ever at any point in the past moved in interstate commerce, we can nail you to the wall for having it.”

16

It’s not about the smut, it’s about the location. The First Amendment doesn’t guarantee your right to have obscenity in your house, the Fourth Amendment does. And if, as in this case, that obscenity was in interstate commerce and was seized, then the 4th Amendment doesn’t apply.

Being wrongfully charged with something does, indeed, suck. But that’s not really a reason to throw out the law. And while fear of an obscenity charge may chill your willingness to buy or sell questionable materials, the market seems to be doing OK.

I’m simply pointing out that the slope you are so terrified of is not all that slippery.

That was kinda the point of my first post. I, and you, don’t know what the items he’s charged with depict, so it is kinda silly, to my mind, to condemn it. It is possibly obscene, it is quite possibility not obscene. But I’m not going to make a judgment like that without a detailed description of the items.

I completely understand that need to be vigilant against the abuse of obscenity charges (especially in that State with all those stupid hick like Iowa, right? :rolleyes:). But until I have more information, I’m uncomfortable with condemning the prosecution. And I still don’t buy the slippery slope argument.

17

gateway theory is one of the most heinous abuses of of the law in our history. When are we going to stop prosecuting someone for having the potential, **maybe ** to commit a crime?

18

No, the market is not “doing OK”. In the first case, it’s absolutely ridiculous that the. single. most. famous. shoujo. manga. ever. - which has been the subject of voluminous scholarly commentary, is discussed at length by every history of manga, is required reading for the BA in manga studies at Kyoto University, has won one of the most prestigious awards for manga, and is at this point over thirty years old - is something that American publishers are afraid to bring into print. In the second case, since I started reading comics in college I’ve paid attention to legal and censorship challenges to comics: writers, publishers, sellers and readers of comics have been investigated/harassed/arrested for books containing a single panel of a young girl swimming naked; a depiction of a pregnant women giving birth; small boys urinating a la Manneken Pis fountain… you don’t even need sex to fall afoul of “community standards” and find yourself in need of a lawyer. So far only a handful of cases have ended in conviction and/or guilty pleas, but the volume and type of material that is sufficiently “offensive” to send some small-town sheriff on the warpath defies all reason.

I’m ragging on Iowa because that’s where the Handley case is.

And apparently I am not being sufficiently clear here: I am not making a slippery-slope argument. I think that obscenity law as it now stands is more than sufficient to allow the irrational and senseless prosecution of entirely valid material, based only on the sensibilities of the most easily-offendable persons exposed to the work (again, just having these cases brought to trial is sufficient to impede creation/dissemination of work that “rocks the boat”, whether or not the work is vindicated in the end). I believe that the precedent that the Handley case will set if the prosecution wins is going to make this state of affairs worse, but it’s already more than sufficiently bad.

19

I have never, ever seen, heard, read, or been informed of any single obscenity prosecution over Kaze to Ki no Uta. Not a single one. None. Zippo. Zilch. Nada. I understand that you’re convinced that at any moment, people will spring forth with handcuffs to arrest you for a 30 year old book, but I really wouldn’t hold my breath.

And, once again, the items that are subject to the prosecution in the OP are NOT those books. The fact it is manga, or a comic book, or whatever form it takes doesn’t make it any more likely you’re going to be prosecuted, just as prosecution for films doesn’t mean that Romeo and Juliet is going to be prosecuted.

Seriously, what is your solution to misuse of a criminal statute? Get rid of the statute? Why people have been wrongly charged with murder, we should dump that one too.

If you think the First Amendment protects obscenity, by all means make the argument. If you think there should never be a prosecution for obscenity, make that argument too. But this hysteria over a prosecution of something YOU DON’T EVEN KNOW WHAT IT DEPICTS is just silly. I know we need to be viligant against wrongful prosecutions for obscenity, but, again, I have no clue why you think this case is “truly scary”.

I know.

Oh sure you are. You’re first paragraph of this post is doing just that. Your hysteria in the Title “I own kiddie porn”! is just that too.

If your solution to abuse of obscenity statutes is to get rid of it entirety, I think you’re wrong.

Again, HOW DO YOU KNOW? As I pointed out earlier, I know next to nothing about the items charged as obscene, so I can’t make a judgment, but you seem completely satisfied that this is some kind of terrible miscarriage of justice. Do you know something I don’t? Have you seen this material? Now, you may very well be right, I don’t know. And I was under the impression that you don’t know either.

20

How can there be prosecution over it, if no American publisher is willing to touch the work, for fear of being prosecuted?

Well, the difference there is that “murder” is an easily understood term with a widely agreed upon definition. There’s also a legitimate social purpose served in making murder illegal. Neither of these are true with obscenity statutes. Murder, after all, is fairly objective in nature. Although it’s possible for people to misapprehend what actually happened, and thereby convict the wrong person, the confusion there is over objective facts. In an obscenity trial, the facts are not in question, and what is being tried is the subjective reaction to a given work. I have definite problems with putting someone in jail for not feeling the right way about a story or drawing. I would, in fact, define that as being “truly scary.”