Posted by: Tyrant 18 April 2017 Nothing in this article is intended as legal advice. If you want or need legal advice, talk to an attorney in your area.
As a matter of law, lolicon is illegal in the United States. In practice, things are more complicated.
“There is no such thing as justice — in or out of court.” — Clarence Darrow
There has been a lot written over the years about the legal status of lolicon in the United States, and most of it is wrong. Not completely wrong, but wrong enough to potentially misinform people who have their freedom at stake. Even a brief search on Avvo.com, a site where attorneys answer questions, yields multiple wrong answers. This article intends to address both the narrow question of whether lolicon material is legal in the United States [spoiler: it’s not], but also the broader question of when and why these cases are prosecuted. We will begin with a brief summary of the federal statute on point and its history followed by a breakdown of its provisions, and then a consideration of the practical factors that lead to people being prosecuted under these laws and the factors that increase and reduce risk to a consumer.
The 2003 PROTECT Act — Why Lolicon is Illegal in the United States
In 1996, Congress passed the Child Pornography Prevention Act (CPPA), which included a ban on so-called “virtual child pornography.” A number of groups, including the Free Speech Coalition, challenged the law in federal court and eventually won in the US Supreme Court case Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In response, a year later Congress passed the 2003 Protect Act, which included a number of provisions that were eventually struck down as unconstitutional, but the following provision survived:
Any person who … 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; shall be subject to the penalties provided in section 2252A(b)(2). 18 U.S. Code § 1466A.
Incidentally, “the penalties provided in section 2252A(b)(2)” are that the person “shall be … imprisoned not less than 5 years and not more than 20 years.” 18 U.S.C. § 2252A.
This is a United States federal law, and so applies equally to all states and irrespective of any state law. There is no way to know for certain how many prosecutions there are under this law for lolicon, but they appear to be relatively rare. The otherwise mediocre Wikipedia article on this topic lists five that have received media attention; however, most of those cases involve individuals charged with real child pornography as well and so are not particularly useful to us in evaluating the legality of lolicon material on its own.
The critical case is State v. Handley, in which an Iowa “comic collector” named Christopher Handley was prosecuted under this law based only on his collection of manga and doujin — he had no actual child porn or 3D renders. Handley’s attorneys filed a motion to dismiss the case for a number of reasons (including the first amendment), and they were rejected by the judge in an 18-page order. On the advice of his attorneys, Christopher Handley took a plea agreement where he would spend six months in federal prison.
According to the comic book legal defense fund, who assisted Handley with his defense, he went to prison for owning the following books:
- 1. Mikansei Seifuku Shōjo (Unfinished School Girl) by Yuki Tamachi (LE Comics)
- 2. I [Heart] Doll by Makafusigi (Seraphim Comics)
- 3. Kemono for ESSENTIAL 3 (THE ANIMAL SEX ANTHOLOGY Vol.3) by Masato Tsukimori et al (Izumi Comics)
- 4. Otonari Kazoku (Neighboring House Family) by Nekogen (MD Comics)
- 5. Eromon by Makafusigi (Seraphim Comics)
- 6. Kono Man_ ga Sugoi! (This Man_ is Awesome!) by Makafusigi (Seraphim Comics)
- 7. Hina Meikyū (Doll Labyrinth) by Makafusigi (Seraphim Comics)
This is the only time I know of where someone was prosecuted for only loli content (Edit: Since this article was published I found others, see below), but this one last provision of the PROTECT act clearly has teeth. The prosecution and imprisonment of an American citizen just for owning loli manga were upheld in this case and it is still good law unless a higher court says otherwise.
A Breakdown of the PROTECT Act
So, what exactly is covered by that last remaining provision of the PROTECT Act? The terms requiring definition for us to figure this out are: “depiction of a minor,” “sexually explicit conduct,” and “obscene.”
Depiction of a Minor
“Depiction of a minor” is easy to define and apply. A “minor” is just “any person under the age of eighteen years.” 18 U.S. Code § 2256, so any material “depicting” a character under the age of 18 years is covered. This is ultimately an issue of fact rather than a matter of law, which means that it will be up to the jury to decide whether any given work “depicts a minor.” We probably always lose this prong – a jury is going to find that almost every piece of lolicon artwork “depicts a minor.” The standard is based on the depiction – the appearance – of the character, so comments like “but she’s a 1000-year-old demon” or “fictional characters don’t have an age” are irrelevant. In the very sober environment of a courtroom facing a judge, prosecutor, and 12 local upstanding citizens, these arguments come across as weak and disingenuous.
Likewise, the disclaimers often put at the beginnings of eroge saying “all characters in this story are over the age of 18” will do nothing whatsoever to protect anyone from prosecution under this law. If anything, they only provide ammunition to the prosecutors who will argue to the jury that the disclaimer proves that the creators and owners knew the material was illegal. The argument goes that if the characters weren’t underage, there would be no need to have a disclaimer. These disclaimers may have legal benefits in some countries, but not in the United States.
Sexually Explicit Conduct
“Sexually explicit conduct” is specifically defined, and is pretty damned broad:
[S]exually explicit conduct” means – (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. 18 U.S.C. § 2256(2)(B).
This definition includes all hardcore loli material and any softcore loli that shows “lascivious exhibition of the genitals.” The strict contours of “lascivious exhibition” aren’t obvious, but will practically include everything except the tamest content. Anything involving obvious sexual elements can pass the test well enough to get to a jury and potentially leave the accused gambling with years in prison.
The following pictures (from Hizashi no Naka no Riaru, before anyone asks) illustrate the point. Image number one on the left is not sexually explicit, though it might raise some eyebrows; however, even a little bit of gameplay will take us to image two, which is already borderline. Maybe sexually explicit, maybe not, While image three on the right is definitely sexually explicit under this definition.
Obviously then, trying to nitpick over the definition of “sexually explicit” will not make any difference in the prosecution of someone sitting on a pile of hardcore loli games, doujin, or anime. Games and interactive lolicon material, in particular, will almost inevitably permit something that will run afoul of this definition; however, this is one of the few parts of this law with clearly defined criteria rather than impenetrably vague standards. It can, therefore, be used as a more reliable tool to determine what content is safe to import (more on this later). This also should put the minds of many loli “dabblers” at ease, because as broad as this definition is, it excludes most cast-off loli figures or official retail materials for softcore or mainstream loli properties like Prisma Illya. While many of these items and images contain undertones of sexuality, they cannot reasonably be called “sexually explicit.”
Obscenity in America
Finally, the reasons this particular statute has so far been found constitutional is because of subsection (B) – the requirement that the material “be obscene.” For reasons too convoluted to get into here, the Supreme Court of the United States has decided that the 1st Amendment to the United States Constitution – what we call “freedom of speech” – does not apply at all to material that is “obscene.” Obscenity is unprotected speech, and the government is free to suppress it (almost) however they please. Thus, so long as the statute includes obscenity as a requirement, the 1st Amendment is off the table.
The United States uses a different definition than that used in the UK that I’ve previously discussed, and the main case on what counts as “obscenity” is Miller v. California, 413 U.S. 15 (1973). In Miller, the Supreme Court laid out a three-part test, though only two of the parts (A and C) are relevant to our analysis here:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, … and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15 (1973).
“Prurient interest” is just lawyer-speak for “sexual,” and is probably effectively the same as the requirement that it be “sexually explicit.” The last prong – that the work lacks serious literary, artistic, political, or scientific value – is where many want to plant their flag. Many people and organizations such as the excellent Comic Book Legal Defense Fund will fiercely argue that loli material is artistic work and not simple pornography, and thus within the first amendment. This is good as a matter of public advocacy, but tragically over-optimistic as a matter of practical reality.
The practical reality is that in one of these trials, the 12 jurors – teachers, doctors, retired factory workers, etc – will have been hearing for days from the prosecution about the defendant’s sexual deviancy and how they are a predator and a threat to children. Then, in his closing argument, the prosecutor (and imaginary prosecutors in these sorts of hypotheticals are always played by Sam Waterson) is going to put a photo up on the screen of a young-looking anime character being gangbanged by four fat, faceless men. The prosecutor is then going to gaze profoundly into each juror’s eyes and say something like “does this look like art to YOU?”
Sam Waterson’s soulful eyes tell the jury to convict
At that point, odds are the case is over. With that image hanging around his neck like a yoke, the defense attorney has to stand up and try to argue that the work has “artistic merit,” probably making an argument about different cultures and how this is common in Japan. If this is a visual novel or such, there will be arguments about the hours of plot and characterization that are a part of it. All probably for naught.
In today’s political climate of “oh-god-think-of-the-children,” I wouldn’t bet on Phoenix Wright being able to pull off that defense. All of the free-speech arguments about art and expression and freedom tend to deflate in the face of a good old-fashioned witch-hunt. None of this is how it should be, but I am not saying that – I am only saying that this is how it is. Arguing to the average American jury about the artistic merits of lolicon is simply not going to fly. That, I would wager, is why Christopher Handley’s defense attorneys told him to plead to six months in prison rather than go before a jury.
The Practical Implications
So most lolicon is technically illegal (for now), but almost never prosecuted. Why — and more importantly, what steps can someone take to reduce their chances of being the next person on the list of people in prison for lolicon?
Why Prosecutions of Lolicon are so Rare
Obviously, prosecutions for lolicon are so rare because most members of law enforcement spend most of their time investigating and prosecuting actual crimes. In all seriousness, that is the reason. If we look briefly at the cases of lolicon prosecution that have got media attention, we immediately see a pattern to how the defendants came to the attention of the authorities.
In the case of Dwight Whorley, from 2005, the defendant was a felon previously convicted for child porn. According to the judges who heard his appeal, he was caught printing hardcore loli pornography on a government printer hooked up to a computer set up for public use in the Virginia Employment Commission. He was ultimately caught with real child porn and prosecuted for both. Christopher Handley, discussed above, came to the attention of federal agents when they opened a package he was importing that contained hardcore loli doujin. Steven Kutzner, prosecuted in 2010 for animated porn of The Simpsons, was discovered because his IP was associated with actual child porn. Finally, Christian Bee, prosecuted in 2012, was reported to the police by his wife.
None of these people were the targets of police investigations for lolicon content. They were almost all investigated for real child porn, and Mr. Bee was reported by someone who knew him (i.e. he got fucking narced). Therefore, it seems that lolicon is rarely, if ever, the proactively investigated. Rather, various law enforcement agencies just occasionally stumble on one of these cases as part of another investigation and decide to pursue it.
Only Christopher Handley stands out as the exception. Handley was targeted after importing material through customs and is the only case I know of where a customs seizure led to criminal prosecution. Though, we can’t know for certain because no one really keeps track and the government classifies these things somewhat arbitrarily, there is a good reason to think the government seizes lolicon material on a regular basis. If you go to Forfeiture.gov — the website where federal agencies post property they have seized — you can see that an item called “ANIME CHILD SEXUAL ABUSE VIDEOS” was posted less than a week ago, as of this writing, and there are a couple posted seized “childlike sex dolls.”
Careful readers might notice that whoever seized this incorrectly cited 18 U.S.C. 2252, the general provision for child porn
Once seized, these items can take years to be posted on the website but postings are only up for one month. Therefore, if my random search on a random day found an item posted just a week before, we can infer that there have probably been at least a few lolicon items seized over the years since Hadley’s successful prosecution. As far as we know, there have been no further charges.
As previously mentioned, this is likely because many police and prosecutors simply would not bother to file charges even when a case comes to them. Unlike in many countries, discretion exists at all levels in American law enforcement: the customs agent (or other law enforcement officer) who sees an “anime child sex abuse video” item gets to decide for themselves whether to seize it, and then whether to pass it onto someone to review for criminal charges. The prosecutor (state or federal) who reviews the report then gets to decide whether to actually bring charges. In both cases, the people involved can (and clearly often do) decline the case and either let the material go or just seize it (and probably send a vaguely threatening letter).
This means that possessing or importing lolicon content is a game of proverbial Russian Roulette with incredibly low odds. A person in possession of “obscene” lolicon probably won’t get caught, and even if they do they probably won’t face charges — but if they have the incredibly bad luck to be caught and charged, they face incredibly harsh consequences.
Sources of Risk with Lolicon
So what are the factors that increase and decrease the risk of prosecution? First is content explicitness. Some lolicon content will be clearly safe to import and own – the softcore “Prisma Illya” sort of material discussed earlier. Some content will be borderline material that is at the edge of the “obscenity” definition, such as art featuring spread legs or lascivious gestures that does NOT include any intercourse. Finally, there is truly explicit content, which more or less includes anything with a penis in the same shot. Borderline content is probably still obscene under the law, but is probably much less likely to lead to charges. The more explicit something is, the more likely it is to attract the attention of investigators and prosecutors and the more likely it is that such attention will result in criminal charges. Many games with lolicon content complicate matters further because they can be tame on the box art while having much more explicit content as part of the game itself. Because first impressions matter so much in things like random customs searches – the customs agent probably isn’t going to install and play the game to see what it is – box art is probably the main source of risk.
The second risk factor is medium and means of acquisition, this to say how a person is receiving and storing their lolicon. The most obvious high-risk factor is importing physical lolicon material through US Customs. A random percentage of packages coming into the United States are opened for examination, so if you import enough lolicon by mail then sooner or later a federal agent will be looking at it. This is, of course, what started the investigation into Handley and eventually led to his prison sentence.
Most lolicon content is probably imported over the internet. So far, this has been statistically safer (though not actually more secure) than importing through the mail. There have been no known prosecutions for lolicon started through web traffic monitoring of lolicon sites (though many have started because of web traffic monitoring of child porn sites), but nothing prevents this from happening in the future. Purchasing lolicon material in person at a convention or store is likewise statistically safe, but not particularly secure. Though, it would be unlikely, nothing would actually stop the FBI from sending agents to watch the dealer’s hall at Anime Expo.
The last source of serious risk is being reported by third parties. This is entirely relative to the each person. It depends on their family circumstances, their social group and how open they are about their interest in lolicon.
Obviously, the absolute safest thing to do would be to not buy, import, or download any lolicon material. Absent that, softcore material imported through customs or material acquired over the internet seem to bear minimal risk. We don’t have anything resembling actual statistics, but even a cursory review of the evidence suggest there are thousands of lolicon fans in the United States. Given that there have been only a handful of criminal cases, most of which also involved real child porn, the odds of facing criminal prosecution for lolicon have so far been incredibly small.
Importing explicit material through customs bears the greatest risk that an official might see something they find offensive and seize/report it – we know this actually happens. It is probably unlikely that investigations lead to charges and maybe even unlikely that charges lead to a conviction, but even being accused of possessing “anime child porn” could have significant personal consequences.
It has been about 1,500 words since I included a picture that isn’t a screenshot of a federal seizure notice, so here’s Hachiroku from Maitetsu
Companies and Businesses Selling Lolicon Material
Some might ask why, if all of this is true, many companies sell lolicon content that is illegal under this law. People might think that because someone is selling it, it must be legal. There is some merit to this, and I’m sure some companies have done their own risk assessments, but there is no reason to think that people stop selling something profitable just because the government technically forbids it if the law is not enforced.
On the contrary, this whole situation is similar to the legal status of marijuana in the many states where it is legal under state law. Colorado, California, and other states have legalized marijuana, but it is still illegal under federal law. In those states, the federal government has said that it generally does not intend to prosecute people acting legally under state law. However, the feds still can (and occasionally do) raid the homes and businesses of people who think they are operating legitimate businesses selling marijuana. Despite this, there are still marijuana shops popping up all over in those states. There are plenty of companies that operate in legal gray areas, and it all comes down to one’s exposure to and appetite for risk. Companies selling lolicon from outside the US are at much less risk (from US authorities), and that is more or less the end of the analysis for them. Companies within the US are basically gambling the same as consumers, with the odds depending on the explicitness of the material they are selling.
The Comparative Irrelevance of State Law
There are a lot of different state laws that ban loli explicitly or else define it is a form of child pornography. However, there are no cases I’ve heard of where such laws have ever been used to actually prosecute someone. This is not to say that state law might not be problematic in the future, but while federal prosecutions are rare, state prosecutions have been non-existent. The exact reason is impossible to know, but it likely has a lot to do with the fact that state agencies and prosecutors have far fewer resources that the federal government. State law enforcement tends to operate on thin budgets and work long hours, and prosecuting someone for a loli flash game their wife found on their computer has obviously not been a priority. Anyway, being in a state where lolicon is also illegal under state law only has the effect of making the long odds of prosecution marginally greater. Unless and until some state starts a major push to enforce anti-lolicon laws, the main source of risk will be the federal PROTECT Act.
Everything above is based upon an assessment of the law today. It is entirely possible that the next judge to review the PROTECT Act will find it unconstitutional and start a new renaissance of lolicon in the United States. Until then, we are left with the terrible situation of lolicon being technically illegal under a law that is almost never enforced, such that once every few years one person out of the thousands of lolicon fans in the US is struck by proverbial lightning.
Nothing here is meant to be alarmist – as far as I know, there are no black vans of FBI agents on the prowl for purveyors of lolicon. However, there are a lot of people who buy or download lolicon content without understanding the risk. That risk – though small – is real. Each consumer bears the burden of deciding how much risk they will bear for products they want, and this hopefully provided information with which to better make those decisions.
TLDR; Loli is illegal in the United States, but most law enforcement doesn’t care about it. Though, you probably shouldn’t import hardcore loli material through customs.
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This article has received a number of comments claiming this law is no longer used or cannot be used, and so I have done additional research on other more recent criminal prosecutions that received less media attention:
In United States v. Bowersox, 72 M.J. 71, 73 (C.A.A.F. 2013), the U.S. Court of Appeals for the Armed Forces upheld the conviction and sentence of confinement for Ryan Bowersox under 18 U.S.C. § 1466A(b)(1) for possession of “anime images that depicted minors engaging in sexual activities.” Id. Bowersox had no actual child porn or simulated child porn. He was convicted for 318 anime-style images depicting minors engaged in sexual activities.
In United States v. Taylor, No. ACM 38700, (A.F. Ct. Crim. App. 2016), from just last year, the same Court of Appeals upheld the conviction of Blake Taylor under 18 U.S.C. § 1466A(b)(1) for “downloading Japanese ‘anime’ from the Internet that depicted adults engaging in sexual activity with persons who appear to be minors.” Id. Taylor possessed no actual child porn or simulated child porn.
In their opinion affirming Taylor’s conviction, the Court said: “[Taylor] informed the agent he did not seek out images of actual children as he understood child pornography was illegal. [Taylor] did not believe his possession of anime or cartoon images depicting sexual acts between virtual adults and children was illegal. This belief was based on [Taylor]’s limited personal research.”
Taylor’s “limited personal research” was wrong. The court upheld his conviction and sentence to 60 days confinement just 14 months ago.