Canadian customs officials have charged a U.S. citizen with possession of child pornography based on his possession of manga comics on a digital device. If found guilty, he faces a minimum of one year in prison… for owning drawn comic books.
This is only the newest case in a long string of concerns and incidents. Canadian customs is known for its aggressive searches, which include not only physical content but digital searches of iPods, iPads, laptops, and other devices. ComicsAlliance has even published advice about how to protect yourself when crossing the border. Recently, comics creators en route to the Toronto Comics Art Festival had comics seized at the border.
This most recent case combines Canada’s aggressive border searches with its draconian definition of “child pornography.” Which is, in fact, anything but.
As explained by Comic Book Legal Defense Fund Executive Director Charles Brownstein:
Customs agents frequently use overly broad and inaccurate definition of “child pornography” in order to justify intrusive searches of materials that are fully protected by the United States Constitution. Under U.S. law “child pornography” is the record and product of child sexual abuse… The depiction of such child abuse in the form of “child pornography” can only involve real children – cartoons of fictionalized characters cannot be subjected to “child abuse.” In such cases, the [Supreme] Court noted [in a 2002 case], “there is no underlying crime at all.”
It’s important to note that, in the case of writing or illustration, no children can possibly be harmed. Ink on pages does not have an age. While this is also true in the case of photographs themselves, those photographs are records of actual people and events. They may be evidence of an actual crime, such as the abuse of an actual person. The same may not be said of words and drawings.
True, those words or drawings may be distasteful, to some people and in some cases. But they are not illegal to produce or to possess in the U.S. They are, in many cases, illegal in Canada.
To treat drawings as if they were photographs of real people being abused criminalizes art. The right to depict, in writing or illustration, whatever one wishes is a basic human right. Similarly, I think we can agree that it is horrific to penalize possession of such artwork, the creation of which has hurt no individual.
As with all “obscenity” laws, Canada’s can quickly be shown to do violence against works universally accepted as classics. Shakespeare’s Romeo and Juliet are young lovers, and any comic-book equivalent would fall under Canada’s draconian legislation. Scholars regard Nabokov’s Lolita as an artistic masterpiece that interrogates the human condition, yet a comic book equivalent would be impossible to produce under Canadian law. Those of us who regard comics as an artistic medium capable of producing classic works should be especially appalled at the double standard here.
All such “obscenity” laws also involve a great deal of subjectivity. How exactly do you determine that an illustration looks like a girl who is 16, instead of 18? Dialogue or captions should be considered irrelevant, if one really does treat drawings as the equivalent of photography; cinema often casts adults in the role of sexually-active minors, so as not to involve actual living minors in even simulated sex, making the criterion the actress’s age, not what the narrative says it is. One is therefore left, absurdly, to guess at the age of an illustration. One can imagine a panel of judges doing so, to great comedic effect.
But illustration is intrinsically subjective, and the same character may even be depicted differently in the same narrative. One can imagine certain images in a comic story that were deemed “obscene,” while others were not, based on such arbitrary factors as a character’s dress or the wearing of sunglasses.
This same subjectivity would apply to a narrative about an old man that depicted him, when he looks at himself in a mirror or feels connected to his earlier self, as younger for artistic effect. If that narrative had him looking at himself naked in the mirror, seeing a younger body, it might be artistically successful yet deemed child pornography under Canada’s “obscenity” law. The same would apply if that narrative went further and (perhaps echoing Philip Roth’s The Dying Animal) depicting the character as young during the act of coitus, as a way of visually expressing what this experience meant to him. Surely, these artistic devices represent the height of what comics as a narrative medium might achieve, yet they are exactly the sort of sophisticated experimentation that such obscenity laws would criminalize.
This subjectivity is especially an issue with manga, which often depicts characters as younger-looking than they are said to be within the narrative. This convention, while certainly not universal within Japanese comics, would lead many Westerners to identify a character as underage, whereas no reader familiar with the convention would do so. And indeed, the man in the current case was charged based on digital manga in his possession.
One must also point out the double standard against human sexual expression that’s in operation here. No one would look at an illustration of a child being killed and treat it as equivalent to a photograph that records an actual child’s murder. But that’s exactly what Canada is doing, when it comes to sex.
That’s insulting, of course, to those minors who have suffered real sexual abuse. Age of consent laws, which vary widely around the world and within the 50 U.S. states, involve their own subjectivities, to be sure. But we can certainly agree that minors who are real victims of sexual exploitation, including child pornography or child prostitution, only have their experiences degraded by a law that equivocates between those experiences and drawn comic-book images.
And for this reason, the charge of “child pornography,” whether over its creation or possession, is one that can ruin a reputation, a career, a life. It is one that must be made responsibly, carefully, and certainly not through the cavalier application of an ideology that equivocates between a drawing and the actual sexual abuse of a human minor. Fortunately and for this reason, the name of the man in question, in this current incident, has not been released to the press. But the thought that he might be considered a child pornographer — by his neighbors, employers, loved ones, or the courts — is a real crime exceeding that to which he is charged.
The Comic Book Legal Defense Fund, a U.S. non-profit devoted to protecting free speech in comics, is to be commended (as with so many other cases it has handled) for assisting the man charged in this incident. His legal defense is, horrifically, currently estimated to run $150,000. If you would like to make a tax-deductible contribution to the CBLDF, you can find more information here.