Manga on Trial

By: Grainne Rhuad

Christopher Handley, an electrical engineer and computer  programmer who cares for his ill mother, attends bible study and Manga collector was sentenced on February 11, 2010, four years after the prosecution began in Iowa for possession of Lolicon Manga books and magazines, which had been seized by the United States Post Office.

Included in the court documents is the list of the seven books that Handley had shipped to him and that U.S. Post Office officials seized in May 2006. The seizure led to a warrant to search Handley’s home and eventually being charged for possession of obscene materials. The seven books are:

  • 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)

Each of these volumes of Manga, according to court documents, contained minors engaged in sexual acts, sexual abuse involving minors from adults, or minors engaged in bestiality. In addition, when law officials searched Handley’s home, they seized more than 1,200 items, including Manga and other documents. However, most were returned to Handley after they were determined to not “constitute or contain contraband.” More than 80 books were retained. Court documents revealed that many of the books retained were from the anthology Comic LO (LO meaning “Lolita Only”). Handley admitted to buying the aforementioned seven books from a place called “cosplay café,” and told officials he had ordered “similar materials earlier from ‘Jlist’ in Japan and ‘Mand[a]rake.com.'”

Handley’s case was prosecuted not under child pornography laws, but rather obscenity laws.  These laws seem to be a tool of the last administration and are incredibly hard to figure out.  Handley’s lawyer, Eric Chase made the comment in a Wired Magazine interview, “Obscenity is the only law I’m aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can’t tell them.”

Christopher Handley is an avid collector of Manga, an animated form of literature.  His collection is huge and only a very small part of it was Lolicon (the term for sexualized youth Manga) He was not a collector of Lolicon but Manga. Of the thousands of books and magazines found by the Feds at Chris’ home, only about twenty had questionable content and ultimately only seven were charged as clearly depicting the violent sexual abuse of obviously very young children fell under the obscenity laws.

According to his lawyer, Eric Chase, Esq., “In understanding Chris’ situation, you have to understand the Ashcroft opinion, which has been universally and tragically, at least for Chris, misunderstood.   That case held that sexual images of virtual minors could not be prosecuted as child pornography. However, it did not hold that virtual child pornography was legal. Rather, it expressly stated that those depictions could be prosecuted as obscenity under the Miller standard.  In short hand, Miller’s three prongs require for conviction a finding that a depiction is 1) sexual in nature (prurient); 2) patently offensive; and 3) lacking in serious literary, artistic, political, or scientific value.  The first two prongs are judged by community standards and the third by an objective standard.”

The laws are further confused by statements made in the Ashcroft vs. Free Speech case which played a defining role in Handley’s case.  For example:  “While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not.”

It is this last statement that really poses a problem.  What might be considered offensive to community standards in one area like the Bible belt may not be considered offensive in another area like California.

It seems clear that Handley had no idea that these issues were illegal and no intention to do harm. He states “I didn’t realize that this material fell under the banned paraphernalia within the US.” Handley said if he had known the material was against the law he would “never have ordered it and would have destroyed any of it that I currently am in possession of.”  Handley had no criminal record and was not ordered to register as a sex offender.

What Handley and probably a lot of other collectors are unaware of was that Congress passed 18 USC 1466A, which criminalized as obscenity a laundry list of virtual depictions, including comics, that portray the sexualization of minors, or what looks like minors.    What makes 1466A different is that it carries a mandated 5 year sentence for receipt of items that are considered obscene.

Eric Chase also pointed out “the Comic Book Legal Defense Fund (CBLDF) and others concerned about the defense of comic books specifically, and free speech generally, are upset that the case did not go to trial.  They are right to be.  The Miller obscenity test is vague, indecipherable, and clearly curtails  protected speech.  Among its most frightening aspects is that its “community standards” element may allow “moral majority” communities to dictate to the rest of us.”

Lest you think Christopher Handley is an isolated incidence, Louis Sirkin and Max Hardcore are currently waging an important battle in their appeal of the conviction on the issue of what the appropriate community is for the Miller test.  The argument, with which some courts have already agreed, is that in an interconnected internet world, you can’t allow the most repressive of “communities” to dictate what is available to everyone else.

Also  in this  last week, in U.S. v. Whorley, a federal appeals court upheld a 20-year prison term for a man convicted of receiving “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.”  Cases like this are not limited to the United States. An Australian court upheld a man’s conviction for possessing sexually explicit Simpson’s cartoons.

While I am not advocating images of minors having sex, twenty years seems like an unreasonable amount of time for someone to be in prison solely for owning literary material.  In addition novels, biographies and film depicting the same sorts of acts do not seem to merit the same punishment.  Think of Brooke Shields in Pretty Baby.  If we were going to be fair across the board, then clearly a movie with a thirteen year old child prostituting herself would merit at least an investigation into the capacity of that parent to keep their child safe and well balanced.  Consider also the video game franchises that provide not so secret codes that allow players to view sex acts.

Also at issue here is the idea that simply having literature that depicts child sexual acts translates to child sexual abuse.  In this case I feel nothing could be further from the truth as the depictions are illustrated and do not use actual minors.  Also to reiterate, the Manga in question was a part of a collection and nowhere near the main part.  In fact only seven of the books qualified under obscenity laws.

There is a bigger picture here and that is censorship.  On a worldwide scale who decides what to censor and when?  Referring back to the Miller Obscenity test, it would seem that the world would be the community to decide what is censored and what is not.  The Lolicon genre is not one that is terribly regular in the United States.  A case could be made for the community of review to be much larger, in which case the outcome of the prosecution would be much different.

Christopher Handley decided to go with a guilty plea.  By doing this he avoided a sentence similar to his contemporaries.  Six months in a halfway house with fines is more appropriate than twenty years in prison. However an important outcome came from this case.  The second prong of the Miller test was challenged and found unconstitutional as a judge and/or jury cannot decide what is of artistic importance or value. In effect it was found this restricted protected speech.

This also goes beyond illustrated works of literature.  Other writers are weighing in on the subject like Neil Gaiman, who rallied his fan base by posting his opinion on the subject, attracting a great deal of attention to the issue of free speech as well as supporting the CBLDF’s decision; citing the First Amendment and the problematic nature of the law as “big blunt instrument,” Gaiman argued the defending the freedom to express what you find reprehensible is a necessary part of defending speech that you like. Other comic writers like Valerie d’Orazio, raised serious questions about whether they could support the CBLDF when it is “fighting for the right of a publisher to print images of little children having sex.”

Whether or not one believes that Manga depicting youth in sexual acts is right or wrong, one must consider that just as guns don’t kill people, people kill people; Manga does not cause one to have sex with minors, an individual does.

For centuries human beings have collected the weird, strange, fringe art.  Due to this today we have the opportunity to look into the minds and interests of people who have gone before us.  To not allow artistic expression may mean that future generations lose this insight into where our minds are right now.  This could have grave effects as we would be misunderstood in all our depravity but also future generations would miss lessons learned.

We cannot afford to lose sight of the larger legal reality–the consensus interpretation of the First Amendment is that prohibiting obscene expression, whether it be fiction or non, text or image, is constitutional. For that to be changed it  is going to require either a substantially new set of Supreme Court justices or amendments to existing statutes.

It is this fight that we should be concerned with.

http://uncivilsociety.org/handley_order.pdf

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/064288.P.pdf

http://www.law.cornell.edu/supct/html/00-795.ZO.html

http://www4.law.cornell.edu/uscode/18/1466A.html

http://www.icv2.com/articles/news/13488.html

http://journal.neilgaiman.com/2008/12/why-defend-freedom-of-icky-speech.html

http://occasionalsuperheroine.blogspot.com/2008/12/simpsons-porn-case-follow-up.html

*Author’s Note: Neither myself nor Subversify condones child pornography or the exploitation of minors.  This report is for informational purposes and reflection on Artistic Freedoms.