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Man Sentenced to Six Months in Prison for Importing Obscene Manga

 
 
Insty
 
Reply Sun 14 Feb, 2010 01:35 am
From an article in Wired Magazine:

Quote:

A U.S. comic book collector is being sentenced to six months in prison after pleading guilty to importing and possessing Japanese manga books depicting illustrations of child sex and bestiality.

Christopher Handley was sentenced in Iowa on Thursday almost a year after pleading guilty to charges of possessing "obscene visual representations of the sexual abuse of children."

The 40-year-old was charged under the 2003 Protect Act, which outlaws cartoons, drawings, sculptures or paintings depicting minors engaging in sexually explicit conduct, and which lack "serious literary, artistic, political, or scientific value." Handley was the nation's first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.

Without a plea deal with federal authorities, he faced a maximum 15-year sentence.

Comic fans were outraged, saying jailing someone over manga does not protect children from sexual abuse. "I'd say the anime community's reaction to this, since day one, has been almost exclusively one of support for Handley and disgust with the U.S. courts and legal system," Christopher MacDonald, editor of Anime News Network, said in an e-mail.
Congress passed the Protect Act after the Supreme Court struck down a broader law prohibiting any visual depictions of minors engaged in sexual activity, including computer-generated imagery and other fakes. The high court ruled that the ban was too broad, and could cover legitimate speech, including Hollywood productions.

In response, the Protect Act narrows the prohibition to cover only depictions that the defendant's community would consider "obscene."
The case began in 2006, when customs officials intercepted and opened a package from Japan addressed to Handley. Seven books of manga inside contained cartoon drawings of minors engaged in sexually explicit acts and bestiality.


Thoughts?
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amist
 
  1  
Reply Sun 14 Feb, 2010 01:44 am
@Insty,
This is totally awesome...what a perv...he totally got what he had coming to him...Neverforget9/11 Go USA!!!
VideCorSpoon
 
  1  
Reply Mon 15 Feb, 2010 03:08 pm
@amist,
The 2003 protect act is a fantastic example of what happens when naturalistic law disrupts the harmony of positivistic law. It is taking a charged moral topic and applying it to codified, predictable law. Which is a difficult thing to grapple with because on the one hand you really do want to afford as much protection as you can for minors against sexual exploitation. But on the other hand, you don't want emotion or anything else like that to interfere with the legal framework you have come to know.

I also find it amusing that there would be a partial amendment to the act which would consider relative issues, such as what "the defendants community would consider obscene." I would think in any case, child exploitation is flat out wrong, so why revise something that is flat out wrong. So when revisions and what-not come into play, that sometimes means that the law has some major fundamental issues. Interestingly enough, this kind of constant revision to naturalistic law looks an awful lot like the evolution of segregation laws post bellum. Like segregation, it is something that was just morally wrong, much like child exploitation. Naturalistic laws come into effect to counter (or perpetuate) those wrongs, but do so in an almost unfair way.

If the protect act considers relative opinions such as what is offensive in terms of the community (noting that I don't know if it is the community at large or just the anime community, but I am assuming the anime community), and the anime community supports the man and the material, then there is really no problem. But then that doesn't really solve anything when you consider the greater community though, who most likely don't like anything questionable on the topic.

But as a huge anime fan (anime is the televised version of manga), I don't like the idea of their being material showing the exploitation of children. It's a slippery slope. But the thing about anime is that it is for the most part highly sexualized, even for kids. The naughty anime series are naughtyzero no tsukaima, which is most likely geared towards younger audiences, the whole series is devoted to a boy and a school full of girls, sexual innuendos, boobs, panties, and explicit "oh-noes." And that's for little kids. So when you take whatever the heck this guy was reading into context, maybe the scale is a bit broader in terms of what is truly truly
Twirlip
 
  1  
Reply Mon 15 Feb, 2010 04:18 pm
@Insty,
I'm inclined to think that the only prosecutions for possessing or downloading obscene images should be of people who either (a) knowingly pay for images of children actually being abused, or (b) are aware of abuse having taken place, and fail to report the crime (for any reason other than the completely understandable one that they might themselves be prosecuted simply for having seen the image!), and this should be on the grounds that they are an accessory to the act of abuse. For all I know, that would already be a crime under some much more general and well-founded laws, in most jurisdictions.

I'm worried by any law which punishes anybody for any act which does no-one any harm. Laws against merely viewing images considered obscene do not make sense to me, not least because exceptions have to be made for those who have to view the images in order to prosecute people for viewing them! Their intentions make sense, and are rightly taken into account; similarly the intent of anyone viewing an obscene image should be taken into account. Laws which fail to take intention into account are absurd and unjust.

Laws against people looking at cartoons are too stupid and unjust for words (unless someone were to draw a cartoon of an actual child actually being abused - and that's just silly). OK, so I would be inclined to be highly suspicious of the motives of anyone who was interested in even viewing cartoons showing children being sexually abused, and I'd be unlikely to want my daughter to go out with such a person, but since when has behaviour giving grounds for mere suspicion been considered as itself a crime? It's barmy.

I appear to be giving this matter a worrying amount of thought. Perhaps I should be locked up, just in case.:sarcastic:
0 Replies
 
Insty
 
  1  
Reply Mon 15 Feb, 2010 07:01 pm
@VideCorSpoon,
VideCorSpoon;128641 wrote:

I also find it amusing that there would be a partial amendment to the act which would consider relative issues, such as what "the defendants community would consider obscene." I would think in any case, child exploitation is flat out wrong, so why revise something that is flat out wrong. So when revisions and what-not come into play, that sometimes means that the law has some major fundamental issues. Interestingly enough, this kind of constant revision to naturalistic law looks an awful lot like the evolution of segregation laws post bellum. Like segregation, it is something that was just morally wrong, much like child exploitation. Naturalistic laws come into effect to counter (or perpetuate) those wrongs, but do so in an almost unfair way.

I assume that the amendment is necessary strictly as a legal matter to bring the Act's definition of "obscenity" into conformity with current first amendment doctrine. Obscene expression is not protected by the first amendment, so it can be criminalized. However, the Supreme Court's definition of "obscenity" includes the requirement that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest." By omitting that requirement, the statute permits the government to criminalize material that, at least technically speaking, is not obscene. The Supreme Court has declined to articulate a single national standard for all obscenity cases, because the nation is too big and too diverse.

---------- Post added 02-15-2010 at 09:12 PM ----------

BTW, contrary to what's reported in the article I quoted, it doesn't appear to me that the statute has actually been amended. But it might be that I just haven't looked closely enough.
VideCorSpoon
 
  1  
Reply Mon 15 Feb, 2010 09:23 pm
@Insty,
Insty;128735 wrote:
I assume that the amendment is necessary strictly as a legal matter to bring the Act's definition of "obscenity" into conformity with current first amendment doctrine.

Interestingly enough, as far as the specific piece of legislation, obscenity is used as a categorical predicate and further elaborated in subsection 1466. But no mentioning of the actual amendment.
Insty;128735 wrote:
Obscene expression is not protected by the first amendment, so it can be criminalized.

Under the first amendment, obscenity is only punishable if it meets three requirements; i. community standard and rationalization, ii. violates state law and subject to state action, and iii. the work "taken as a whole lacks serious literary, artistic, political, or scientific value." This is a direct application from Miller v. California (1973). Ironically, (at least to me) the work is deemed at least superficially to be an artistic work by nature of the media in which it is conveyed.
Insty;128735 wrote:
However, the Supreme Court's definition of "obscenity" includes the requirement that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest."
appeals to the shameful or morbid interest of sex or excretion."
Insty;128735 wrote:
By omitting that requirement, the statute permits the government to criminalize material that, at least technically speaking, is not obscene. The Supreme Court has declined to articulate a single national standard for all obscenity cases, because the nation is too big and too diverse.

I don't think that anything is being omitted here though. If anything, it's being more narrowly defined to include a categorical caveat. However, there is specific mentioning of child pornography with emphasis on surpassing criteria. It says that photographs, videos, and movies using actual children surpass the obscenity test, requiring at least one of the three to become applicable. However, it does not cover digitized pictures, drawings, texts, which are constitutionally protected under the constitution via Ashecroft v. Free Speech Coalition (2002).


Insty;128735 wrote:
BTW, contrary to what's reported in the article I quoted, it doesn't appear to me that the statute has actually been amended. But it might be that I just haven't looked closely enough.


I agree. It may be the case that more emphasis should be taken on 1466-2a.

Also, this is a pdf version of the act; http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:s151enr.txt.pdf
This is the e-rec version; http://thomas.loc.gov/cgi-bin/query/D?c108:6:./temp/~c108St5UZG::
There are also some very good briefs on legaltrac if you have access to it.
Insty
 
  1  
Reply Mon 15 Feb, 2010 10:08 pm
@VideCorSpoon,
VideCorSpoon;128784 wrote:

Under the first amendment, obscenity is only punishable if it meets three requirements; i. community standard and rationalization, ii. violates state law and subject to state action, and iii. the work "taken as a whole lacks serious literary, artistic, political, or scientific value." This is a direct application from Miller v. California (1973). Ironically, (at least to me) the work is deemed at least superficially to be an artistic work by nature of the media in which it is conveyed.

Actually, all obscene expression can be punished under the First Amendment. As a legal matter, expression isn't obscene unless it meets the Miller test.

VideCorSpoon;128784 wrote:

I don't think that anything is being omitted here though. If anything, it's being more narrowly defined to include a categorical caveat. However, there is specific mentioning of child pornography with emphasis on surpassing criteria. It says that photographs, videos, and movies using actual children surpass the obscenity test, requiring at least one of the three to become applicable. However, it does not cover digitized pictures, drawings, texts, which are constitutionally protected under the constitution via Ashecroft v. Free Speech Coalition (2002).
1466A(a)(1) and (b)(1) specifically state that they reach only expression that is obscene. However, 1466A(a)(2) and (b)(2) do not contain this limitation. Rather, these provisions apply to expression that (a) "depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and (b) lacks serious literary, artistic, political, or scientific value." That is to say, neither 1466A(a)(2) nor (b)(2) requires Miller's first prong which requires that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest."

As I'm sure you know, child pornography and obscenity are two separate categories of expression. Neither category is protected by the First Amendment. As you point out, however, child pornography can be punished only if it involves actual children. However, obscene expression can be punished regardless of whether it depicts actual children (at least until the Supreme Court says otherwise).
0 Replies
 
Insty
 
  1  
Reply Tue 16 Feb, 2010 02:47 pm
@Insty,
As an interesting point of comparison, a judge in Australia ruled a couple of years ago that cartoon images -- which depicted underage characters from the Simpsons engaging in sex acts -- constituted child pornography.

Simpsons cartoon rip-off is child porn: judge
0 Replies
 
Pyrrho
 
  1  
Reply Tue 16 Feb, 2010 03:20 pm
@Insty,
Insty;128116 wrote:
From an article in Wired Magazine:
Quote:
A U.S. comic book collector is being sentenced to six months in prison after pleading guilty to importing and possessing Japanese manga books depicting illustrations of child sex and bestiality.

Christopher Handley was sentenced in Iowa on Thursday almost a year after pleading guilty to charges of possessing "obscene visual representations of the sexual abuse of children."

The 40-year-old was charged under the 2003 Protect Act, which outlaws cartoons, drawings, sculptures or paintings depicting minors engaging in sexually explicit conduct, and which lack "serious literary, artistic, political, or scientific value." Handley was the nation's first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.

Without a plea deal with federal authorities, he faced a maximum 15-year sentence.

Comic fans were outraged, saying jailing someone over manga does not protect children from sexual abuse.



That seems quite irrelevant to what the article states is the law. The law prohibits certain depictions (that lack scientific, artistic, etc.), not simply protection of children from sexual abuse. If people feel the law is unjust or is not what it should be, then they should work to change the law.


Insty;128116 wrote:
Quote:

"I'd say the anime community's reaction to this, since day one, has been almost exclusively one of support for Handley and disgust with the U.S. courts and legal system," Christopher MacDonald, editor of Anime News Network, said in an e-mail.
Congress passed the Protect Act after the Supreme Court struck down a broader law prohibiting any visual depictions of minors engaged in sexual activity, including computer-generated imagery and other fakes. The high court ruled that the ban was too broad, and could cover legitimate speech, including Hollywood productions.

In response, the Protect Act narrows the prohibition to cover only depictions that the defendant's community would consider "obscene."
The case began in 2006, when customs officials intercepted and opened a package from Japan addressed to Handley. Seven books of manga inside contained cartoon drawings of minors engaged in sexually explicit acts and bestiality.


Thoughts?



So, the "anime community" supports depictions of children engaged in sexually explicit acts and bestiality?

It seems to me that the court ruled in accordance with the law, which is exactly what courts are supposed to do. If people have a problem with what the law is, then they should be angry with legislators who made it, and should work to change the law. Being angry with the judges and judicial system seems to me to be very misdirected anger. After all, do people seriously want judges to simply rule based on their personal whims, or do they want the judges to follow the law? (If you are ever charged with something, do you want the judge to be able to ignore the law and just throw you into prison or not, as it suits the whim of a judge?) As long as the law is as it is, the courts should rule just as they did in this case (unless, of course, the article left out some important detail).

If the law is unjust, the law should be changed or revoked, not simply ignored. Blaming judges for what the law is, is quite frankly stupid.
Insty
 
  1  
Reply Tue 16 Feb, 2010 04:45 pm
@Pyrrho,
Pyrrho;129128 wrote:
That seems quite irrelevant to what the article states is the law. The law prohibits certain depictions (that lack scientific, artistic, etc.), not simply protection of children from sexual abuse. If people feel the law is unjust or is not what it should be, then they should work to change the law.

Yes, I take it that the opponents of the law are trying to change it by expressing their disagreement with it.

The law itself is almost certainly unconstitutional (which is not to say that I disagree with the law). But I'm not sure that critics object to the law so much as they object to the way it was used by the government in this particular case -- i.e., to prosecute someone for possessing animated images. I don't think the text of the law says anything about these kinds of images, and it's not clear that congress intended for these kinds of images to be covered by the act. It was federal prosecutors who made the decision to apply the law to the images at issue in this case. Although I have some sympathy with this kind of legislation, I can understand why some people would be concerned about using it to prosecute someone for possessing comic books.

Pyrrho;129128 wrote:

So, the "anime community" supports depictions of children engaged in sexually explicit acts and bestiality?

It seems to me that the court ruled in accordance with the law, which is exactly what courts are supposed to do. If people have a problem with what the law is, then they should be angry with legislators who made it, and should work to change the law. Being angry with the judges and judicial system seems to me to be very misdirected anger. After all, do people seriously want judges to simply rule based on their personal whims, or do they want the judges to follow the law? (If you are ever charged with something, do you want the judge to be able to ignore the law and just throw you into prison or not, as it suits the whim of a judge?) As long as the law is as it is, the courts should rule just as they did in this case (unless, of course, the article left out some important detail).

If the law is unjust, the law should be changed or revoked, not simply ignored. Blaming judges for what the law is, is quite frankly stupid.

Yes, I don't think the article intended to suggest otherwise. Actually, in this case the judge didn't even issue any ruling. The defendant pleaded guilty, so the judge simply imposed a sentence, and the sentence was probably influenced by the defendant's agreement with the government. As I read the article, the sentencing merely served to highlight what some people believe is the objectionable nature of the law.
VideCorSpoon
 
  1  
Reply Tue 16 Feb, 2010 05:18 pm
@Insty,
Insty;128800 wrote:
Actually, all obscene expression can be punished under the First Amendment. As a legal matter, expression isn't obscene unless it meets the Miller test.

I would imagine so since the first amendment pertains to predicates of expression. On the subject of the miller test, it was already mentioned earlier, but the restatement is none the less valid.
Insty;128800 wrote:
1466A(a)(1) and (b)(1) specifically state that they reach only expression that is obscene. However, 1466A(a)(2) and (b)(2) do not contain this limitation. Rather, these provisions apply to expression that (a) "depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and (b) lacks serious literary, artistic, political, or scientific value." That is to say, neither 1466A(a)(2) nor (b)(2) requires Miller's first prong which requires that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest."

Your interpretation is very interesting. A few questions though. When you say that the second parts of A and B do not contain the limitations of the first parts, are you implying that they are usable interdependent? I clearly see a conjunctive inference separated by a disjunction at the end of a2. There is a necessary condition for A1 and A2 (and vice versa). The same goes for B. And thinking about it, would the Millers test necessarily apply in this case, especially considering that there exists some circumstance which would permit less than all three criteria met to meet terms?
Insty;128800 wrote:
As I'm sure you know, child pornography and obscenity are two separate categories of expression. Neither category is protected by the First Amendment. As you point out, however, child pornography can be punished only if it involves actual children. However, obscene expression can be punished regardless of whether it depicts actual children (at least until the Supreme Court says otherwise).

I would say within the context of the first amendment, child pornography is a predicate of obscenity, not separate categories. But to clarify, that's my own opinion. That neither is protected by the first amendment, I read differently as there exist at least some extenuating circumstances in any case. I wonder if you are going on Roth v. US (1957) as the basis for your supposition without taking into account other progressions. But still, very interesting discussion.
Insty
 
  1  
Reply Tue 16 Feb, 2010 06:27 pm
@VideCorSpoon,
VideCorSpoon;129165 wrote:

Your interpretation is very interesting. A few questions though. When you say that the second parts of A and B do not contain the limitations of the first parts, are you implying that they are usable interdependent? I clearly see a conjunctive inference separated by a disjunction at the end of a2. There is a necessary condition for A1 and A2 (and vice versa). The same goes for B. And thinking about it, would the Millers test necessarily apply in this case, especially considering that there exists some circumstance which would permit less than all three criteria met to meet terms?

The text of 1466A reads as follows:
Quote:

(a) In general.--Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, 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; or

(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
Thus, this part of the statute makes it possible to convict someone in two different ways -- i.e., under either subsection (1) or subsection (2). The requirements of the subsections are disjunctive.

Under subsection (1), the defendant must (A) possess "depict a minor engaging in sexually explicit conduct" and (B) be obscene. Under subsection (2), the image must "be or appear to be of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;" and (B) an the material must lack serious literary, artistic, political, or scientific value.

The requirement that the material be obscene is mentioned only in subsection (1). Thus, subsection (2) criminalizes the possession (distribution, etc.) of non-obscene images.

The uncodified version of the statute, which you might be using, is much more difficult to read than the codified version. I should also note that this interpretation isn't really mine. From what I can tell, this is the standard interpretation of the provision that the courts have come up with. It seems to me that it must be correct.

VideCorSpoon;129165 wrote:
I would say within the context of the first amendment, child pornography is a predicate of obscenity, not separate categories. But to clarify, that's my own opinion. That neither is protected by the first amendment, I read differently as there exist at least some extenuating circumstances in any case. I wonder if you are going on Roth v. US (1957) as the basis for your supposition without taking into account other progressions. But still, very interesting discussion.

I think first amendment doctrine is clear that child pornography and obscenity are separate categories of unprotected expression. The Supreme Court stated this explicitly when it first upheld the constitutionality of laws criminalizing child pornography. See New York v. Ferber, 458 U.S. 747, 764 (1982) ("The test for child pornography is separate from the obscenity standard enunciated in Miller.").

I'm also unaware of any extenuating circumstances that apply to either kind of expression, although I may not be clear on what you have in mind by extenuating circumstances.

---------- Post added 02-16-2010 at 08:31 PM ----------

Insty;129158 wrote:
Yes, I take it that the opponents of the law are trying to change it by expressing their disagreement with it.

The law itself is almost certainly unconstitutional (which is not to say that I disagree with the law). But I'm not sure that critics object to the law so much as they object to the way it was used by the government in this particular case -- i.e., to prosecute someone for possessing animated images. I don't think the text of the law says anything about these kinds of images, and it's not clear that congress intended for these kinds of images to be covered by the act. It was federal prosecutors who made the decision to apply the law to the images at issue in this case. Although I have some sympathy with this kind of legislation, I can understand why some people would be concerned about using it to prosecute someone for possessing comic books.


I was mistaken on this point. The statute does specifically mention "cartoons" as well as sculptures, paintings, and suchlike. So to the extent that the case is a problematic one, the law itself, and not just federal prosecutors' application of it, is problematic.
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