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.

19 Comments on “Manga on Trial”

  1. Great job Grainne!

    By that stupid logic, there are about a dozen mainstream motion pictures I can think of that should be declared obscene just the same. America seems to enjoy sexualizing their own pre-teen youths with Teen USA pageants, horny comedy movies, and beauty products….so what gives in cases like this? I say it’s just racism against Japan at this point.

  2. I think this is where manga has become vilified by Western orientated legal systems – the belief that the original concepts were aimed at small children because that is how the “home brewed” versions are targeted at for audiences outside of Japan. The original incarnations of “Aiko”, “Ranma ½ “, and “Battle of the Planets” all pushed the boundaries of violence and sexuality– until they came over to North America. Once over the ocean in the hands of the North American producers the originals were taken from their levels of grey into simpler linear plots with identifiable one dimensional character traits. Even “Astro Boy”, “Sailor Moon” and “Pokemon”, which are seen as wholesome entertainment in the West, are edgier and sophisticated plots in their original Japanese concepts.
    I have written stories taking icons such as “Betty” from “Archie” and putting them into sexual overdrive or I once drew a cartoon with “Sally” and “Linus” fornicating with the line being “And here I thought it was pumpkin patch”. Does that make me guilty as the person who drew the “Simpsons” cartoon? Quite frankly, while it may push the envelope of good taste I do not advocate the abuse of a child in any form. If a personality, real or fictional, is presented to the world as a certain way, there are people who will take the time to consider “humanizing” or creating ludicrous scenerios to place those personalities in. Considering the behaviours of some of high profile politicians, entertainers and athletes it would seem that Western justice systems are not about what is right but what they can get away with.

  3. Your article brings up some very important and concerning issues in our country reguarding censorship, and more disturbing, the attempt to legislate morality. How is it ok for a convicted rapist get 3 -5 years in prison but a man who collects Manga could get 20? The existing laws you reference in this case are way to subjective and are paving a path for future prosecution of people who are different (those who like art) from the “community standard” (whatever that is). Very concerning. I too am opposed to ANY exploitation of children. But we need to be careful on what we call “art” and how that might be protected.

  4. While the art may not be injurious to a child, someone in possession of a large amount of such materials might be seen as a threat to children. The art, being deviant, is most probably going to appeal to a deviant mind.

    Molestation of children isn’t something to be taken lightly and it occurs more frequently than one might imagine. Forming groups who approve of such activity doesn’t make the act right or any less injurious to the children.

    Possession of such material shouldn’t be enough on its own to prosecute someone or put them in prison for 20 years. If there has been an attempt by the person to approach children in a dubious manner, though, I could certainly see the material being brought into the case to prove intent.

    What we read, view, and listen to does tend to shape our thoughts. If such activity is presented as being pleasing to the children, someone with an inadequate mind might not consider the physical and psychological damage they would do to the child by partaking in such activity.

    In Peru, a four year old became pregnant and gave birth to a son by Cesarean section.

    http://youngest_mother.tripod.com/

    http://www.snopes.com/pregnant/medina.asp

    Though I cannot find anything on the Internet at present, there was a news report in the 70s about a 6 month old in Australia being impregnated by her father. Such things are rare, but do occur at times. Can you imagine what kind of damage it could have inflicted on the child’s body?

    I would frown on such “art” being pushed in large quantities, but I cannot say that producing or possessing such art in itself would be worthy of a prison sentence. The social implications of approving such activity, though, is something which should be considered.

  5. I think South Park did a Manga-ish plot line a few times and got away with it. It just proves that if your obscenity makes money for the US, nobody really cares.

  6. [quote=SpaceEagle]While the art may not be injurious to a child, someone in possession of a large amount of such materials might be seen as a threat to children. The art, being deviant, is most probably going to appeal to a deviant mind.[/quote]

    By that using that logic in a court of “law” (such a laughable concept), one can justify banning any form of art or liturature deemed “deviant” – one can stop all sales of books like “Mien Kampf,” “Das Kapital” or “The Anarchist Cookbook” on the basis that they appeal to “deviant minds” in our culture.

    The “legal” system is no place to discuss the arts or its social implications – as all such “discussions” that occur within it result in punishing those who collect or create the “wrong” art. I say that it’s time that government withdraw itself from the artistic sphere entirely, get rid of the Medevil “laws” relating to “obscenity” altogether and just stand on the sidelines as the sovreign individual judges for himself what art is of value to himself.

  7. Who decides what is obscene and what is “art”?

    Well, to start with we need to distinguish “art” from “popular culture”… or even “alternative culture”.

    Sorry. *grin* I’m being pedantic, but as an Art Historian I bristle whenever the term “art” is loosely used.

    Granted, Manga has a following, it’s well illustrated and has its own inimitable “style”. So have a lot of authors. However, do we call every published book, no matter how strong the readership, literature? *smile*

    Forgive my digression, but the sub-title of the piece set my teeth on edge. Calling Manga “art” is a bit of a stretch. 🙂

  8. As to the prosecution of someone importing Manga which portrays the sexual abuse and/or activity of clearly underage kids?

    It’s clearly breaking the law. Couching the style with the term “art” is an attempt to vaguely give it some credence and exonerate it from the purely titillating… but that argument doesn’t hold much water.

    What I do find disturbing, however, is the severity of the sentence imposed.

  9. Well if the depiction of underage children having sex or engaging in suggestive content represents a case of “obscenity” then the law should also prosecute the makers of movies like The Reader, Lolita (both literature and the movies), American Beauty, Kids, The Blue Lagoon, Pretty Baby, and a host of others. Oh yeah and The Beatles. Well she was just seventeen…..anyway, I’m not saying we should see more underage sex depicted…far from it. But I’m saying be consistent. Stop promoting double standards. As long as it’s artsy, funny, or to prove a “point” then depiction of underage sex/nudity is okay. No, how about it’s not okay? Or better yet, the government can mind its own goddamned business for a change.

  10. To Malice- Well as far as manga being art, it is art in some opinions, and I don’t feel it is a stretch at all. There have been some beautiful Japanese works done. I’d love to see you argue a collector of comic books on this topic haha. Every book literature? well, yes, they are. Difference in opinion lies on if a certain book is a “GOOD” piece of literature or not. Many in their day were considered obscene works of filth that were banned, some of their authors imprisoned. This is thought barbaric today, since some of those same books are on the lists of greats. I’m not a huge fan of manga myself, but I wouldn’t rule out everything just because it is a cultural difference, and a difference in the times. I personally don’t think much Postmodern art deserves the title of art, but that is just my opinion. As far as credence, if it was Postmodern art of a woman nude in public pulling a scroll out of her vagina (real art), I’m sure it would be more easily defended right? Ha.

    What bothers me the most on this topic is the singling out of the small few, like Mitch was saying. If you are going to make it a law, then it should apply to everyone. Not this picking and choosing. I’d say most the boys (and some of the girls, hey it was the 90’s) I knew growing up had some form of hentai/manga/playboy hidden under their mattresses. 7 things obscene? I’d say it is a very safe bet that the current young generation has more on their hard drives then that. It’s animation people! For goodness sakes, where would it end then? And what country is this again??

    Big butch inmate: 20 years? Whatcha in for, murder?
    comic guy: um…cartoons…

    Thanks for telling us about this Grainne

  11. @spaceeagle- I cannot agree that those owning this type of material are automatically deviant, and therefore likely to abuse children. As pointed out by that way of thinking, every parent who allows their child to be in toddler beauty pagents should be rounded up and jailed as they obviously like seeing their kids adulterated.

    @malice-I have to say I do not agree with your assesment that Manga cannot be considered art. I know your experience with art, but really beauty and art is in the eye of the beholder. The fact is that skill and time and thought go into creating Manga and it is therefore as artistic as Duchamp hanging a urinal on the wall.

    As pointed out even in providing protection against obscentiy the punishment clearly does not fit the crime as a rapist or a child molester gets less time than someone with objectionable materials.

    Of concern also is the “who decides” part. In a global community is it acceptable to have 12 jurors from one’s community judge a person. When we are talking about the internet does this still constitute a jury of peers?

    Also I have not viewed the Lolicon in question, I have no desire to be prosecuted myself, and it doesn’t interest me, but one of my biggest questions is: Is it truly clear that minors are being drawn? I ask due to the fact that most Manga has a wide-eyed childlike quality to its characters even when they are supposedly adults…just a question I have.

    Also I question what the hell the United States Post Office is doing randomly opening people’s magazine orders.

  12. Oh, I have no doubt the manga had underage gals. This is coming from Japan, where they sell used school girl panties in vending machines. The question on my mind is about the law. How can something with no definitive lines be upheld so strictly, and only to the few? And who is this law protecting exactly? The drawn characters feel violated! ha. It’s just ridiculous.

    And the post office has opened my mail before. A few times in fact. Actually every time I order something from Japan it has been “inspected”

  13. Another thing- I agree that the owning of manga does not make you a deviant. I’m sure EVERYONE has fantasies in their minds that they would NEVER act on in real life. And once again, if we are going down that road, then freedom of speech needs to be withdrawn, and the people need to be made aware of it. Drawn images are being policed, what next? Is the government going to be in my bedroom saying stop thinking about that!!! You are under arrest for that impure thought!
    …ah, the year is 1984…

  14. this is troubling on so many levels for me … any child today, can go to a computer and watch men with fists up their asses and woman with baseball bats as dildos .. I think that erotic art is viable, but when children are involved a society has to err on the side of caution … I think that people have to be responsible for their behavior but also believe that the overwhelming violence on TV and in film can be directly linked to the increase in violence in the real world today. Pornography is one of those tough issues .. no matter how well drawn or technically talented the artist maybe, is it acceptable for everything to be shown, can you really shout fire or terrorist in a crowded plane and expect the 1st amendment to protect you … we can never really agree on what exactly is of artistic merit, but I hope we can agree that unlimited expression under the guise of “art” is problematic at the very least. When it comes to what one can own or sell, is there no limit ?? Can I film an adult being murdered and raped by a gang of men, all handsome and beautifully photographed and call it art, can I hide and say I was just filming a socially unacceptable behavior that happens everyday ??, somewhere ?? We seem to have lost our ability to edit .. just because you can think of something, you can’t do everything that comes to your mind; just because you can think it. doesn’t mean you can say it …

    all that said, I cringe at John Asscough being the arbitrator of anything .. and the government .. difficult case to consider … thanks …

  15. @ Rich in PA – I fail to see your point – the scenarios you describe all involve an individual having his/her sovreignty voilated. When one draws a loli manga (of which I am *not* a fan) or paints a portrait of brutallity or uses his talents to replicate any activity that society wouldn’t typically endorse there is no victim: no one’s sovreignty was violated in the creation of the artistic expressions being punished today under so-called “obscenity laws.”

  16. In defense of the Japanese, just about everything there can be found in a vending machine – the machines exist on every corner in Tokyo. An overwhelming majority of them do not sell girls panties, sorry to let you guys down about the perversity vending machine culture there.

    On topic, there is so much hair splitting on what should and shouldn’t be socially acceptable that the concept of the “greater good” behind censorship gets lost. The vehicle of censorship is driven by people who believe they are doing a public service; that words, pictures and ideas can be detrimental to society at large. There is the idea that sexualized images of children sets forth a precedent that society is permissive of pedophilia – that said acts encourage these behaviors. The thought then comes to mind, is the assertion correct? And if so, does persecution of said materials conflict with the freedoms afforded under sovereign law. There are in fact many books out there that provoke violence, revolution, distrust and hatred which can be tied to directly to criminal activities. Yet we don’t arrest people for purchasing these materials.

  17. Sorry for the huge review, but I’m really loving the new Zune, and hope this, as well as the excellent reviews some other people have written, will help you decide if it’s the right choice for you.

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