One of the core principles of our justice system is to protect children from sexual abuse. For this reason, laws severely punish those who produce, distribute, and possess child pornography.
Most people are aware of these laws, but many people do not realize that cartoons, drawings, and animated depictions – including anime movies and manga comics or novels – of children engaged in sexual activity are also considered child pornography, and you could be charged with a crime for viewing such images.
The PROTECT Act
In 2003, Congress found that law enforcement agencies had difficulty in prosecuting cases where computer-generated depictions of children were indistinguishable from depictions of real children. Other cases involved using parts of images of real children to create a composite image that was unidentifiable as a particular child and in a way that prevented even an expert from concluding that parts of images of real children were used. Some cases even involved the disguising of pictures of real children being abused by making the image look computer generated.
As a result, Congress passed the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today” (PROTECT) Act. This law prohibits the production, distribution, or possession of a visual depiction of any kind – including an animated motion picture, drawing, cartoon, sculpture or painting – that depicts a minor engaging in sexually explicit conduct that lacks serious literary, artistic, political, or scientific value.
Why is the First Amendment Not a Defense?
The Supreme Court previously ruled that a law banning any depiction of simulated sexual activity by a minor was too broad (Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)). The PROTECT Act was passed as a response to this ruling.
For this reason, a key word in the PROTECT Act is the word, “obscene.” The Supreme Court ruled in 1973 that the First Amendment protection for freedom of speech does not apply to “obscene” material (Miller v. California, 413 U.S. 15 (1973)). Using the word “obscene” in the PROTECT Act eliminated any concern that the law would be considered a violation of First Amendment rights.
What If I Didn’t Know the Animated Characters Were Minors?
The PROTECT Act modified several existing laws regarding child pornography. 18 U.S.C. Section 2256(8)(C) prohibits any visual depiction that “has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”1 The word “identifiable” implies that a person viewing the depiction would notice that the character in question represents a person under the age of 18.
Your knowledge is difficult for the prosecution to prove. Therefore, it is possible that your attorney could use a lack of knowledge that the character in question was intended to be a child as a valid defense to charges of child pornography.
What About California Law?
So watching anime could lead to federal child pornography charges, but what about California law?
It is difficult to tell what exactly constitutes “child pornography” under PC 311.1, but there is reason to believe that animated or computer-generated images do not qualify under this law.
The California Court of Appeal held that PC 311.1 requires that “a real child must have been used in production and actually engaged in or simulated the sexual conduct depicted” (People vs. Gerber, 196 Cal.App.4th 368 (Cal. Ct. App. 2011)).
Speak to Our Child Pornography Attorneys Today
If you or someone you love is facing child pornography charges, it is critical that you speak to an experienced sex crimes attorney as soon as possible. At Wallin & Klarich, our skilled attorneys have over 35 years of experience successfully defending our clients against child pornography charges. We may be able to help you achieve a favorable outcome in your case.
With offices in Orange County, Riverside, San Bernardino, Los Angeles, Torrance, West Covina, Victorville and San Diego, there is an experienced Wallin & Klarich child pornography attorney available nearby no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
1. 18 U.S.C. 2256, available to view at https://www.law.cornell.edu/uscode/text/18/2256. href=”#ref1″>↩