Friday, December 12, 2008

Can comics be pornography?

An Australian Supreme Court justice says yes:

Simpsons cartoon rip-off is child porn: judge
December 8, 2008

A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.

In a landmark finding, Justice Michael Adams today upheld a decision convicting a man of possessing child pornography after the cartoons, depicting characters modelled on Bart, Lisa and Maggie engaging in sex acts, were found on his computer.

The main issue of the case was whether a fictional cartoon character could "depict" a "person" under law.

"If the persons were real, such depictions could never be permitted,"Justice Adams said in his judgement. "Their creation would constitute crimes at the very highest end of the criminal calendar."

Alan John McEwan had been convicted in the Parramatta Local Court of possessing child pornography and of using a carriage service to access child pornography material, the latter of which has a maximum penalty of 10 years' jail.

The male figures in the cartoons had what appeared to be human genitalia, as did the mother and the girl depicted in the cartoons.

The magistrate had said that had the images involved real children, McEwan would have been jailed.

However, he was fined $3000 and required to enter into a two-year good behaviour bond in respect to each of the charges.

McEwan appealed the decision arguing that fictional cartoon characters could not be considered people as they "plainly and deliberately" departed from the human form.

But Justice Adams agreed with the magistrate, finding that while The Simpsons characters had hands with four fingers and their faces were "markedly and deliberately different to those of any possible human being", the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people.

Justice Adams said the purpose of the legislation was to stop sexual exploitation and child abuse where images are depicted of "real" children.
Graphic novelist/comic-book author Neil Gaiman pointedly disagrees:
The idea that you could be arrested in the Western World for having [similar images] in your computer is mind-boggling, let alone for owning Lost Girls, or for doodling members of the Peanuts gang doing things they tended not to do in the Schulz comics, or for reading Harry Potter slash, or owning the Brass Eye Paedophilia special. And, I should warn members of the Australian judiciary, fictional characters don't just have sex. Sometimes they murder each other, and take fictional drugs, and are cruel to fictional animals, and throw fictional babies off roofs. Crimes, crime everywhere.

The ability to distinguish between fiction and reality is, I think, an important indicator of sanity, perhaps the most important. And it looks like the Australian legal system has failed on that score.

I don't know if it's something that they can further legally appeal, or afford to appeal, but I hope they can. If not, I hope that a bunch of Australians will get together to change the law.
Feminist comic book fan Valerie D'Orazio, responds to the ruling on her blog Occasional Superheroine, and it's on:
For example (I've decided to totally edit this description of one of the Simpsons images out at the last minute, as it's just too disturbing). This is different, in my humble opinion, from Daisy Duck and Mickey Mouse having passionate sex against a wall. Daisy and Mickey are consenting adults sowing their wild oats in the usual way -- albeit by committing adultery and unfaithfulness to Minnie and Daffy!

So I shed no tears for the absence of porn based on underage cartoon characters on the Internet. Nor will I miss feeling like a party to an illegal act every time I do an image search for cartoon and comic book characters.

However, there must be a rather sizable number of people actually visiting these XXX cartoon parody sites -- not just those who get off on such images, but just regular people looking for some gross-out humor. Will the latter category find themselves roped in with these crackdowns, even arrested? Would having an illustration of a "Peanuts Orgy" on your hard drive be enough to convict you as a sex offender?
Good question! And several people reply on the subsequent thread, as Valerie clarifies:
As for defending free speech, I hope when somebody comes out with a comic book that Gaiman and the rest find personally hateful and offensive, they will step up to the bat and defend that too. Not an art book with beautiful Melinda Gebbie illustrations. But some sort of over-the-top extremely religious comic book full of hate for a variety of topics -- like Jack Chick on speed. If a book like that gets published, and prosecuted for "hate speech," I want to see all these free-thinkers defend their right to be hateful. Because when I see a cartoon image of a little child being sexualized and engaged in carnal acts, I consider it hateful, and "hate speech."

I realize I'm just a big square (draws polygon around her head for emphasis)
Predictably, the contentious follow-up thread on Occasional Superheroine drew 80 comments before finally being closed.

Valerie D’Orazio writes:
When you champion this sort of porn, you run the risk of taking all porn down with you. People outside of the quaint aesthetic bubble you are living in look at you making this passionate case for illustrated child porn and...they can't even identify with you, can't even understand what you're saying. And then in turn you make fun of these people, call them all puritanical maniacs, religious nuts. Nothing gets accomplished. There is no middle-ground. There are just extremists on both sides: extreme liberals who fight for the right to publish child porn, and extreme conservatives who put fig leaves on the penises of statues.

But there is a whole lot of people who are on the middle in this debate. In the end, you have to stop preaching to the choir and start addressing them. Understand where they are coming from, stop turning your nose up at them. Try your explanation on them about how harmless images of Lisa Simpson having sex with her dad are, and see how well that goes.

I like the CBLDF a lot, but if they were fighting for the right of a publisher to print images of little children having sex, I'm not interested in supporting that fight. I'm not. I know I would be more popular if I did. But I just can't do it.

I read stuff like what Neil Gaiman wrote, and it's like I'm living in a completely different world from him. I can't relate to it. I'm all for eroticism. I'm not here to take away Playboys, Witchblades, and your assorted avant-garde pornography. But...

It's a bubble. It's a big bubble. And it's a bubble in which I feel I do not have the complete freedom to speak my mind. It's a bubble all about "freedom" -- in theory. But it really isn't. It's only about the freedom to agree with the majority view within Bubbleland. I feel as oppressed by this bubble as I do by people I feel who are sexist, probably more. I mean, I don't really give a damn what the sexist people think of me. But to come up against the Bubble -- I don't have the guts to do it. Honestly, it scares me to death.
And frankly, I feel like I am occupying another universe than the one she is in. My First Amendment absolutism comes into play, and I am once again a feminist at odds with traditional feminism.

I ain't the only one. Collateral Damage blogger rattsu writes:
I'm sorry. I love this blog. I really do. I've never minded the snark or the battles. I've read it for the insights into the industry, and being a woman, for the views that it offered on what sometimes went on behind the scenes.

However, I can't continue reading it anymore. I know that this doesn't really matter, but I wanted to explain why.

You see, I don't want to continue reading the blog of someone that looks down on me. That thinks I might be dangerous on the level of people carrying around loaded guns in their bags. That thinks that the things I like eventually might seep into my mind and make me enact things in real life. Hell, I'm 37 years old. I've been through a lot of censorship debates. I've been a part of the underground video tape trading where we dealt with third and fourth generation copies taken from the countries where the movies I liked managed to sneak through uncut. A lot of the things I loved back then, who was dead illegal and forbidden (especially in sweden where I live) are now shown in every movie theater.

This is not about loaded guns. This is about morals and the public consensus. It is ALWAYS dangerous. It must ALWAYS be stopped. Whether comics or music or porn, the difference is where you draw the line. And if that line is drawn to include art? With things drawn on paper? With figments of your imagination? With fictional tales of word in stories?

Then I'm sorry. Like it or hate it, if that's turned illegal, then I am a criminal, and support criminal activities. Sure, Simpsons porn for me is about as daft as furries and not my thing, but seriously...

Comparing reading what I assume to be hardcore SM porn to carrying a loaded gun? *facepalm*

I'm sorry Val. You have lost all my respect there. Goodbye.
And thread contributor Will speaks for me:
As for defending things I don't like (i.e. religions or groups I agree with), well, that's the whole point. If we only defend those things that we agree with, that's not much of a freedom of speech.

People are arguing that this case is a thought crime are not watering down the meaning of the words, because this case is a thought crime. This guy hasn't done anything. What if it so that erotic novels about vampires were declared obscene and owning one would get you tossed in jail (banned for promoting an unnatural attraction and sexualization of the dead). You didn't actually have sex with a dead person, just owned a story about someone who did.

I know, I know, vampires aren't real (neither are the Simpson's though) and child molesters are, but I hope you at least understand where some of us are coming from. Once you start jailing people for possessing drawings, no matter how distasteful, where do you stop?
Indeed, where DO we stop?

What do you think?

21 comments:

Renegade Evolution said...

GRRR. Do I want to look at cartoons of Bart having sex? No. HOWEVER, Bart is not a real human. NO REAL CRIME is happening. The Neil is right, this is bullshit. And PORN, be it written, drawn, or with real adult consenting humans, is NOT a crime.

The idea of someone being arrested for DRAWING something or having a drawing someone else made? INSANE! Completely insane.

(spoken like someone who draws pornographic cartoons- but yeah).

Rachel said...

What's next? Will Bill O'Reilly be put in jail for writing a novel that included a scene where a Meth dealer uses his "product" to get two 15-year-old girls to blow him? (That would be nice, actually.)

Or will anyone and everyone who has ever watched an animation of a teeny teenage Japanese girl being raped by a tentacled creature be slapped with $3000 in fines and made to register as a sex offender?

NO! Why? Because Bill O'Reilly is an adult who wrote a book about people that aren't real -- even the 15-year-old girls and "Robo". Everyone involved with the anime-porn where teenage girls are raped by tentacles are adults. They have to be, they're making porn -- if there were actual children involved in the animation, you still wouldn't have any grounds to prosecute (unless it violated child labor laws) because what children are exposed to generally has to pass by the parents first.

These laws, as the judge says, were established to protect children from being abused and exploited for the gratification of people who wield dramatic power over them. Since cartoon characters aren't real people, there's no way you can wield power over them (unless you are the animator -- in which case, why aren't the animators of the offending cartoon being prosecuted? Because there's no legal standing to do so!), ergo they cannot be exploited.

There is no crime here. Period. The interpretation of the law is faulty, and the judge who ruled in this manner should have his ass handed to him by an impeachment trial -- if they do that in Oz.

LarryE said...
This comment has been removed by the author.
LarryE said...

The previous deleted comment was mine; I realized after posting it I had garbled a whole sentence and wanted to correct it.

What strikes me most about this is the degree of effort that's going into turning "I find it icky" into "It's destructive and should be banned."

"If the persons were real, such depictions could never be permitted," Justice Adams said....

Right. IF. And as the old saying has it, if your grandmother had wheels, she'd be a wagon. But they're not real, and your grandmother doesn't have wheels (I'm assuming). They're cartoon characters. They exist only in pen-and-ink drawings or digitized computer files and function only in your imagination. (I'm having flashbacks of Dan Quayle blaming Murphy Brown for out-of-wedlock births.) The entire argument is based on an absurdity.

I doubt either Justice Adams or any of those who have spoken in his defense have thought through the potential consequences, the potential threats to free speech, to parody and satire, of having cartoon characters become, in essence, legal persons equivalent to living humans.

And I have to say that if Valerie D'Orazio hadn't already lost me when she hilariously described Daisy Duck and Mickey Mouse as "consenting adults," she would have when she whines - and I chose that word deliberately - that "I feel oppressed" by virtue of having a minority opinion, a standard by which I can fairly claim to have been oppressed most of my adult life.

The oft-misunderstood saying "hard cases make bad law" actually refers to the fact that situations where the decision is hard, it's a close call as to which is the proper course, are bad guides as sweeping principles about a wider range of cases. As far as I'm concerned, this was not a close case. Not even close to close. But if you want a closer case, consider this:

First, I have to say that I believe child pornography can legitimately be banned on the grounds that our cultural understanding of children and childhood is such that below a certain age, children can't be regarded as free and willing participants. (Yes, that age is vague and would vary person to person and for legal purposes it would have to be chosen reasonably but still somewhat arbitrarily - but the principle remains.)

Okay. So what if instead of cartoon characters, it was photo-realistic paintings of children having sex? They still do not exist in real life, they are still figments of the painter's imagination (we're assuming here there were no actual child models involved), but they are intended to look as real as possible. What then?

I think - I'm not sure but I think - I'd still have to come down on the side of it being permitted because it does not depict actual children and to ban it is to head down the classic slippery slope. But I'd be unhappy about it.

Footnote: D'Orazio says

I hope when somebody comes out with a comic book that Gaiman and the rest find ... offensive, they will ... defend that too.

Just for the record, I have. Not about comic books, but when the ACLU defended the right of Nazis to march through Skokie, Illinois, which had a significant population of Jewish survivors of the Holocaust. The ACLU lost 30,000 members over its action. I sent a contribution.

polerin said...

I find it very interesting that she seems to be saying that NG likes underage Simpsons porn just because he defends it. Is it not possible he's defending it simply because that is what he believes is right, even if he despises the actual content? You know, that very thing she seems to think he wouldn't do?

BAH. Do I like the drawings? No. Do I think they are harmful? Yes, it's possible. Do I think they should be censored and people banned for having them? Absolutely NOT. The social harm generated from unrealistic cartoon depictions of underage sex is in no way proportional to the club this gives prosecutors to attack someone with.

Ever been to 4chan? SOL.
Ever browsed past a site that popped up an ad? SOL.
Your kid browse past such a site? Still SOL.

The case can and has been made for restricting actually child pornography, and I think it HAS been made, in that it directly supports the people that have abused children. With this? No.

Amber Rhea said...

This just blows me away. Whatever you think of it, whether you think it's distasteful or offensive or downright horrifying, the fact of the matter is there are NO REAL PEOPLE being harmed.

If we're going to go down this road let's go ahead and ban books such as "American Psycho"... that one fucked me up real good.

Aishwarya said...

Heh, I'm currently writing a paper about Lost Girls for school, so I'm not sure if that makes me (and my supervisor, and my English department) a criminal as well.


And I'm pretty sure Gaiman has defended stuff he dislikes in the past - I very much doubt that he's defending Simpsons porn because he happens to enjoy it.

Shorter version: D'Orazio = completely wrong.

Aspasia said...

This is one of those things that make me blink rapidly in disbelief.

""If the persons were real, such depictions could never be permitted,"Justice Adams said in his judgement. "Their creation would constitute crimes at the very highest end of the criminal calendar.""

As LarryE already emphasized, IF. And if THIS is at the "very highest end" of his criminal calendar, then he definitely needs to loose his seat on the bench. I'd think things like, you know, murder or rape are supposed to be the 'very highest end of the criminal calendar'.

And this from D'Orazio: "Daisy and Mickey are consenting adults"

Well, actually, they're consenting animals and from two different SPECIES no less! Wouldn't that be dangerously teetering on the edge of beastiality? Certainly if the case can be made for this caca about the Simpsons cartoon, surely a very creative and slick lawyer can argue that Daisy and Mickey romp is obscene beastiality.

And this: "What if it so that erotic novels about vampires were declared obscene and owning one would get you tossed in jail (banned for promoting an unnatural attraction and sexualization of the dead). You didn't actually have sex with a dead person, just owned a story about someone who did."

....is especially timely considering the release of "Twilight". Joss Whedon and Anne Rice, in addition to Stephanie Meyer would most certainly be thrown into jail. Oh, and the people who make HBO's "True Blood".

Aspasia said...

Okay, the more I think about it the angrier and more baffled I become. So, will drawings students make of doing horrible, violent things to teachers or each other become admissible now? Is that considered conspiracy to commit murder? GODDESS!

Avalon's Willow said...

Aspasia:

Actually a child in the US was already thrown out of class for drawing tears on a Halloween drawing that his teacher thought could somehow be related to gang signs.

The child was under 8 I believe. And had to attend a psychological evaluation before he could be let back into class.

Aspasia said...

@Avalon's Willow: *sigh* Geez. Was that this year or a previous Halloween? I want to retreat from society sometimes after hearing about such stupidity.

Anthony Kennerson said...

Oh, HELL TO THE NO!!!!

I don't know what is more offensive and triggering in me: the judge who made this absolutely horrific decision to convict a man based on spoofing cartoon characters (and since when did The Simpsons become merely child cartoons, anywhow??) or the attempt by Ms. D'Orazio to resort to the typical "Free speech should only be for speech I support" response of liberal censors.

Sorry, Ms. D..but I have no need for sexed up Simpson cartoons...but I sure as all hell don't want to be tried and found guilty for accessing them and thusly being labeled a pedophile based solely on my having those images on my computer. There is a fundamental difference between going after real children and going after imagery....otherwise, any mainstream movie and every actor and actress in a TV series like CSI could be liable for multiple counts of sexual abuse for every taping of every episode or scene. Anything else is simply though policing....which is fundamentally wrong.

And D'Oranzio's attempt to dismiss defenses of such speech as "championing abuse" is especially galling, since it follows the typical "if you don't agree with me, you must be one of THEM" logic which censors throughout time have used to disable their critics. Would she like it if some fundamentalist who also happens to be a Star Trek fan decided to go after Kirk/Spock "ska" fiction on the grounds that such work depicts "immoral sex acts"??? And never mind the openings for "copyright infringement" suits from Paramount Pictures based on the supposed "damage" to their alleged "image". Should the makers of "The Simpsons" or the Fox TV Network also be allowed under such a provision to sue the makers of the infamous Simpsons art for damage to their "image", too??

See what censorship based on personal pique can lead to, people??

Call me a First Amendment absolutist if you will, but when we begin to parse away basic protections just because we don't like someone's personal tastes, then we inevitably give someone else the same right to do likewise to us. Freedom of speech wasn't designed to protect speech we personally like; it was designed to protect especially unpopular speech. And to distinguish real criminal acts against real people from depictions.

Leave the damn porn alone, and get back to going after real harms.


Anthony

John Powers said...

One of the things about getting older is the realization that some of the ideas I've held dear aren't necessarily the best. Or to put it another way one of the advantages of death is that not particularly useful ones tend to die out with the people who hold them.

But what ideas are really good? Freedom of expression is one idea I'd hate to see die out. But I know my ideas about free expression are very influenced by the times I've lived in.

Reading a recent Newsweek article about Barney Rosset old owner of Grove Press sent me down memory lane.

Early editions of "Our Bodies Ourselves" were smuggled out of Massachusetts because of obscenity concerns. Imagine that books about our bodies and keeping them healthy were considered pornography! All sorts of fights, like the Mattachine Review, Avant Garde Magazine, Rosset's decades long struggle to publish "Tropic of Capricorn."

People always want to know what caused something. The trouble it's usually causes. There's no simple reason behind child abuse. That said keeping children safe is a general good.

I think there must be extraordinarily good reasons for the government to suspend freedom of expression. Protecting children is very important, but I fail to see how the prosecution of a person for processing a fictional cartoon depicting child sexual abuse, actually protects children.

queen emily said...

This ruling is stupid, it changes the whole foundation of the law. Policing thought rather than action, virtual rather than actual (or at least, as well as). Repulsive though they may be, no living person's been harmed.

It's not about protecting real children--it's about protecting the IDEA of children. And that's a bloody bizarre thing to police, cos how the hell can you get a birthdate? What about a depiction of the Simpsons that makes Bart and Lisa look older, is that ok? What if the character's borderline, could be 17, could be 18? Or hentai that features a character that looks like a child but is 10000 years old in the show?

It's just incoherently stupid to try to police virtual representations, the law's founded on protecting real children from real abuse.

YogaforCynics said...

The whole justification (which, I think is a good one) for the illegality of child porn in the face of the First Amendment (which, obviously, doesn't apply to Australia) is that it's not simply a free speech issue, since child porn can't be produced without victimizing a child. As such, no actual child=no victim.

The old "I believe in free speech, but that's offensive" argument is simply idiotic. Speech that doesn't offend anybody really doesn't need protection. Then, the term "free speech" is constantly mangled in countless ways in public discourse, particularly on the internet--my favorite being "I can't criticize him for saying that because I believe in free speech," as if criticizing what someone says isn't as much free speech as what that person said. And, of course, Sarah Palin not long ago took things to a new low by arguing that the media's criticism of her was an assault on the First Amendment (which, of course, was written for the precise reason of allowing criticism of politicians)....

queen emily said...

Yeah, Australia doesn't have a bill of rights, the right to free speech isn't guaranteed.

I think this ruling fits broadly within recent moral panics in Australia - the one about Bill Henson's portrait photos of half-nude adolescents being child porn, and the recent move to legislate giving Australia a "clean feed" of the internet.

The clean feed--which will give households a compulsory porn-censored connection from their ISP unless users opt out--has been justified, again using the figure of The Child, this time needing to protected from the ever-present spectre of internet porn...

Avalon's Willow said...

Aspasia:

The Halloween Stupidity was this year. It was ALSO this year that a teacher let her class vote an autistic child out of the classroom even while knowing he was being evaluated for assisted learning - where SHE was supposed to be one of the evaluators.

It's not about protecting the children, but as Queen Emily said, protecting the idea of children and I'll add, the idea of some perfect society where everyone who isn't like them is hidden, dead or has been 'sent back where they came from'.

As for Valerie D she's a lightweight who's right of center and likes to call herself a feminist while telling others, including anti-racists that they just need to talk more persuasively and be less angry. She halts discussion on her blog while claiming it's a free and open space; deletes, censors and edits so it looks like no one is disagreeing with her and absolutely refuses to apologise for even the simplest of mistakes.

She keeps claiming she's gotten over wanting to just be one of the boys in order to further her career, but her actions continually show otherwise. I'm not surprised at all that she's championed the 'Not if it disgusts me. Not in my backyard' point of view. She's proven she has a hard time seeing any other perspective than her own.

bint alshamsa said...

Wow! Just. Wow!

edc said...

I'm sure that this will be overturned and the judge will lose his job.
or arnold Schwarzenegger will be arrest for the multiple murders of people including micheal biehn and the t1000.

Daisy said...

Child-porn cartoon conviction upheld
Federal appeals panel rules porn is porn even if it's drawn


updated 12:27 a.m. ET, Sat., Dec. 20, 2008

RICHMOND, Va. - Child pornography is illegal even if the pictures are drawn, a federal appeals panel said in affirming the nation's first conviction under a 2003 federal law against such cartoons.

Dwight Whorley of Richmond is serving 20 years in prison, convicted in 2005 of using a public computer for job-seekers at the Virginia Employment Commission to receive 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men. Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received e-mails graphically describing parents sexually molesting their children.

A three-judge panel of the 4th U.S. Circuit Court of Appeals on Thursday upheld his conviction.

Among the arguments in his appeal was that cartoons are protected under the First Amendment because they do not depict real children. He also claimed the statute is unconstitutional because text-only e-mails cannot be obscene.

Two judges rejected those arguments. A third agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.

Judge Paul V. Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that "it is not a required element of any offense under this section that the minor depicted actually exists."

Appeals to continue
Rob Wagner, the federal public defender who represented Whorley, said he was "very disappointed" with the ruling and that he would ask the full appeals court to reconsider. If that fails, Wagner said he will petition the U.S. Supreme Court to review the case.

A Virginia jury convicted Whorley of 74 counts including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene e-mails describing the sexual abuse of children.

Whorley, 55, is serving his sentence at the Gilmer Federal Correction Institution in Glenville, W.Va.

He previously was sentenced to 46 months in prison for a 1999 child pornography conviction.

More from msnbc.com

Anonymous said...

Valerie D'Orazio seems to think that you can somehow just remove unwanted content from the interweb, such as child pornography bla bla.

"So I shed no tears for the absence of porn based on underage cartoon characters on the Internet. Nor will I miss feeling like a party to an illegal act every time I do an image search for cartoon and comic book characters"

Hahahaha what an idiot loser