When Good Ideas Go Bad

Have you heard of the PROTECT Act of 2003? This is a complicated piece of legislation that intends to prevent child abuse.

I think we can all get behind that general concept, right?

But . . . there’s a problem, specifically with the sections about child pornography.

In general, the intention was that child pornography, particularly on the internet, should be prevented and those trafficking in it punished. And here we are talking about images of real children. This kind of material is not covered by the First Amendment.

Sure. All good, so far.

The problem comes in section 504 (a), which expands the definition of “obscene visual representations of the sexual abuse of children” to include “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting . . . [that] lacks serious literary, artistic, political, or scientific value”, whether one “knowingly produces, distributes, receives, or possesses with intent to distribute.” said representations. And then add on section 504 (c): “It is not a required element of any offense under this section that the minor depicted actually exist.” (1)

Now that’s a whole ‘nother kettle of fish. There are several problems here:

  • Who determines whether the representation has value?
  • How is it child abuse if the depicted minor doesn’t exist?
  • With a work of art, how do we tell whether the person depicted is a minor?
  • Since when does the government get to tell artists what they can create and what art individuals can possess in their own homes?

So here’s a potential scenario: If you decide to draw a picture of what appears to be an underage child in a sexual situation, even if you never show it to anyone and even if it is purely a product of your imagination, you could be convicted of a felony.

If you drew the picture, your punishment would be “imprisonment for 5 to 20 years for a first offense, for between 15 and 40 years for persons with certain prior offenses, and a fine of up to $250,000”, and if you give the picture to someone else, their penalty for possession would be “imprisonment for up to 10 years for a first offense, for between 10 and 20 years for persons with certain prior offenses, and a fine of up to $250,000”. (2)

And here’s a real life scenario:

Christopher Handley, a manga collector from Iowa, has been charged under the PROTECT Act because he received a package in the mail that included alleged child pornography. The mail in question was seven Japanese comic books. After the postal inspector received a warrant to open the package, Mr. Handley was arrested and the 1,200 comic books in his collection were seized as evidence. Some of his collection included lolicon and yaoi manga, both of which depict young people (or people that appear very young) in sexual situations.

Evidently the district judge handling the case has determined that the applicable sections of the PROTECT Act are unconstitutional, but that Handley may still be tried for the obscenity charge.

As Neil Gaiman has said about the case, “Nobody was hurt. The only thing that was hurt were ideas.”

Now, this is not art I would be interested in creating or looking at. But I will not say that someone else does not have the right to create it or look at it. And I will not agree that drawings, cartoons, sculptures, or paintings, or even needlepoint for heaven’s sake, are the same thing as a photo or video of a child. Putting a child in a sexual situation and taking pictures or videos of it is wrong. Creating something out of one’s imagination is not wrong, and in my opinion should be considered free speech.

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1. Text of S. 151 PROTECT Act, Library of Congress. http://thomas.loc.gov/cgi-bin/query/F?c108:6:./temp/~c108Mi6YrK:e83707:

2. Federal Child Obscenity Statues, US Department of Justice. http://www.usdoj.gov/criminal/ceos/obscenity_stats.html

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14 Comments

Filed under art, Books, Deep Thoughts, Politics, Rants

14 responses to “When Good Ideas Go Bad

  1. There was a big controversy here recently about a photographer Bill Henson who tried to have an exhibition of photos he had taken of a naked 13-year-old girl. This is obviously different from the situation you mention because these were photos of a real child, and apparently this guy went on the trawl around primary schools looking for models, which I’m surprised he got away with. Anyway, there has been huge discussion about whether or not his photos are “art” or child pornography. Personally I find them to be in bad taste and get irritated by his arty-farty waffle that “no, no, it’s OK, honest, it’s art!” but what bothered me the most was that yes, here is this guy hanging up photos of naked children on an art gallery wall. The really dangerous people are the ones nobody ever knows about, who do things undercover and make sure they are never caught and they are actively harming children day in, day out. Everybody’s energies would have been much better spent seeking out and destroying the real perverts not discussing into infinity one guy’s “art”.

  2. Which, I guess, is what you’re saying.

  3. I think it is really hard to not let your emotions get involved here, I don’t know what kind of mentality it would take to draw a child in a sexual situation. I think the fact that people are selling drawings to get out of a loophole of not actually using real children is pretty disgusting. I think we have to look society in general to address issues of sexual violence towards women or children (or anyone), what causes people the need to act out their aggressions in this manner? I find pornography of any nature or gratuitous violence a symptom of societal disease. Making this a criminal act will not stop people from doing this, we need to look at this on a much deeper level not put a band-aid on it.

    I see you are looking at it from the side of free speech (Who can judge what is art and what is pornography?) and philosophically I totally agree with you but my heart really feels there is too much depravity in society and makes me sad that this even exists.

  4. This is pretty interesting. I actually can imagine reasons why people would draw children in sexual situations, particularly in a satirical or absurdist sense, to make a point … R. Crumb used to do it, and while I often find his cartoons highly disturbing, there are some that actually are a pretty hefty slap in the face regarding what sometimes goes on in families. They’re disgusting, and they’re horrifying, and that’s kind of the point … sometimes things like that get people’s attention more effectively than heartfelt protest.

    As someone who sees the potential in shock value and in deconstruction via art, I don’t like to see censorship. I can also see a small gap between this kind of censorship and censoring writing fiction about child abuse or children in sexual situations … which would eliminate a great deal of valuable literature.

    I think that while the motivations behind this type of censorship are always valid, the potential end result is to prevent free exchange of information. It seems to me to be a lesser of two evils … freedom of expression and information may lead to exploitation, but repression and censorship are, in the long run, worse.

  5. Helen: I’m not sure I could say that photographs of children are inappropriate just because they are naked. Sexual pictures would not be OK, but is nakedness automatically sexual? I’m not sure about that. I’d have to see the photos you mention to comment on them in particular. But yes, I think there are other things that happen every day that are much worse for children than an art exhibit.

    Lisa Anne: I agree with you, as this is not art I would want to look at. In Japanese culture, a young schoolgirl in a short skirt is an erotic stereotype, so you see that a lot in manga, along with the whole focus on “cute”. From what I understand, pornography is sold openly there as well. So I don’t think it’s a case of a loophole to get away with something, but rather a strong artistic and cultural tradition in Japan. I’m not necessarily defending it as a good thing in and of itself (I agree that it is likely a bad thing for a society to glorify age-inappropriate sexuality), but it does need to be seen in the context of Japanese art and culture.

    David: Neil Gaiman made that same point, that one of his Sandman comics included a character that sexually abused and killed children. It was not created for titillation at all, yet it possibly could be considered child pornography under the PROTECT Act. And what if someone who had been abused as a child created art expressing their experiences as a healing act, and then was prosecuted for it?

    I think you and Lisa Anne are getting at the same thing: trying to prevent child abuse in this way is merely putting a band-aid on a much deeper problem, and legislating art is not the way to solve that problem. People who involve children in sexual situations to create pornography should be prosecuted, because they are harming actual children; I’m having a hard time coming up with a situation where someone drawing a picture of a child from their imagination should be prosecuted, because no children are being harmed.

  6. Alida

    I haven’t read all the comments yet, so I hope I don’t offend, but I have a real problem with censorship. Of course I don’t child pornography is right. The problem lies where you start legislating so much that all common sense is lost.

    My parents have of picture of one of the grandkids wearing his moms knee high boots and nothing else. It is the funniest picture, yet I’m sure under this law, my parents would be subject to arrest.

    The picture has no sexual connotation what so ever. It’s just one of those funny things kids do in total innocence. I also read about a family that went camping every year. They had a tradition of having the kids pee on the campfire to put it out. (seems dangerous to me.) The parents took pictures and were later arrested when the photo lab called authorities.

    Does this mean I have to get rid of my kids naked baby pictures? It just seems like there is so much that can go wrong with this legislation., not unlike the recent law that allowed parents to drop off unwanted children and parents were dropping off their teenagers left and right…same potential here for that kind of disaster.

  7. Nana

    Okay, let’s get one thing straight right up front: there is absolutely no reason to consider any depiction of children being hurt in any way, shape, or form to be acceptable. What begins in the imagination often escalates to the physical.

    Case in point: snuff films: are they “art” because they are films and the “actress” (yes, I am being gender specific because the films are)may or may not actually end up dead? how do you determine whether or not she is actually dead? when someone finds the body?

    In the U.S. we are only entitled to our rights as long as they do not impinge upon the rights of others. It’s NOT censorship; it’s the Constitution! Freedom of speech does not entitle us to shout Fire! in a crowd. It does not allow us to incite a riot. It does not provide for talk of the violent overthrow of our government.

  8. Alida: I think about that too: most people have cute pictures of their naked kids, and there shouldn’t be anything wrong with that. And I used to let my kids run around naked in the yard in summer, where other people could see them, and there shouldn’t be anything wrong with that either. I think the media bias toward the bad things that happen has skewed all of our thinking into the land of suspicion and prudery in the name of “safety”.

    Nana: Well, yes. From what I can gather (not having the manga to refer to directly), some of the works involved in this case depict people who merely appear young and might not necessarily be considered children. But beyond that, your example of snuff films fits in with what I am saying: photos or videos of real people are different than drawings or paintings from the imagination. Snuff films are justifiably prosecutable because the people involved quite possibly are being harmed; graphic novels are artworks that do not involve harming anyone in their creation. If I am an artist drawing pictures from my imagination, then I am not impinging on anyone else’s rights nor am I harming any adults or children.

    And again: what if an artist had been abused as a child, and decided to draw pictures of that experience as part of self-healing. Why is that wrong? Why should that be a felony? Because under the PROTECT Act, that artist could be convicted of a felony for simply drawing those pictures, even if the pictures stayed in the artist’s personal possessions and were never shown to anyone else! That is not the same thing at all as taking photographs of children in sexual situations, which is wrong and should be prosecuted.

    I also have to say that the distinction between minors and adults in terms of numerical age can be misleading. Is it not possible that a seventeen-year-old could make decisions in an adult manner? Don’t we all know twenty-year-olds who are disastrously immature?

  9. Eve

    Since I’m raising the walking wounded–children heinously abused by pedophiles and perverts, I have to say that this topic is repugnant to me. I am with Nana on this one (thank you Nana).

    I get your point, though. I just err on the right of children to have “life, liberty, and the pursuit of happiness” and through childhoods free from this sort of trash.

  10. Eve: Well, I also think child porn is repugnant, but that’s not the same thing as manga. And I would also like to clarify that I don’t think this kind of manga is appropriate for children to see, and so yes, childhood should be free of it (and free of Britney Spears, Cosmopolitan magazine, and lots of other stuff that most people don’t seem to consider obscene!)

  11. Eve

    Heni, I am not sure I agree with myself enough to disagree with you about manga. How’s that for a concept?

    I have a couple of sons who were into manga and I’ve looked at or read through their books. I have quite a few thoughts about the Japanese preoccupation with sexualizing school children, but without a robust development of them feel I haven’t much I want to say about them yet, if ever. But I do perceive a sinister undercurrent to them.

    I was not molested as a child; but I have raised or worked with children who were. My concern is how this works together on a universal or global basis in a spiritual sense. I hope I’m communicating clearly here (let me know if you want). I think of how dedicated Buddhists do not eat meat, for instance, or drink alcohol because of their wish to relieve suffering, because so much suffering surrounds slaughtering animals, or alcoholism, etc.

    What does that have to do with manga? Well, I just question the innocence or purity of it. Maybe to me on a gut level it feels like polyester as opposed to cotton or silk. Aside from your head thoughts, I am wondering what your gut or heart tell you about this? (That’s an aside, and no, it’s not an attempt to psychoanalyze… I just wonder how something that feels wrong to me feels right to you. Can you help me understand?).

    Finally, I agree about Britney, Cosmo, etc. I even dislike Victoria’s Secret catalog, but not from a rigidly fundamentalist type of perspective. I also hardly ever watch television any more, or listen to the radio. I have become so selective about my environment in my mature age. Somehow this issue fits in with that, as if it is fuzzy static in the airwaves or eye-waves. I had my doubts about manga when I bought it for my sons years ago (they have outgrown it and moved on to real school girls after that, and I don’t mean that in a sexually perverse or hidden way, I just mean that I suspected at the time that maybe guys practice male-female relationships in a variety of ways that girls don’t, and vice-versa).

    Sheesh. Now see what you’ve done? I said elsewhere that I wasn’t prepared to discuss this and now we can see why. I have lots of loose ends and my knitting is horrible.

    It would be convenient if I could blame you for this. Do you mind, much? ;o)

  12. Eve: Sure, blame me. I stirred you right up and never helped smooth you back down!

    It’s funny, I really do agree with much of what you are saying. I think that lots of art reflects (or creates) “badness” on a spiritual level. And I could easily see how the Japanese trope of the sexy schoolgirl might reveal something ill in their culture. My heart/gut tells me that while I can understand why someone might be attracted to it, it’s probably a bad sign on some level. (And the stories I have read of the very real dangers schoolgirls face on public transportation in Japan speaks to that as well.)

    But…I’m still going to go back to the free speech aspect. You and I can wish all we want that art be always pleasing or un-sinister, and that children only be depicted in uplifting or respectful ways, but I really don’t want to go down the slippery slope of censorship. (Though it’s apparently quite amiable to amble down the alley of annoying alliteration 🙂 ) I’m a social liberal, I guess, or maybe even a social libertarian. If it feels wrong to me, I don’t consume it, and I can hope that others won’t as well, but I won’t compel them so.

    My thought is that we should always go back to home plate: what is our family culture? You allowed your boys to read manga (though I assume not the kind we’re discussing here) and then they grew out of it, perhaps because of the greater values and customs you instilled in them. I’m not prepared at all to tell other adults what they can or cannot read, but I am completely able to do that for my children, and to encourage them to seek “higher” culture. And seek out the “family friendly” checkout line at the grocery store, that is blessedly free of Cosmo et al.

    I also don’t want to neglect the beam in my own eye. Have I ever read erotica or looked at pornography? Yes. Did I enjoy it? Sometimes. Did it harm anyone else? No. Do I want to spend a lot of time with it? No, because I do think that what we put before our eyes affects our souls and spirits.

  13. Nana

    okay, Nana is ready to spit! what is the point of manga or any other form of “imaginative” depiction of sexualizing children?

    what good is there in this? does it lift the spirit – no! does it elevate the mind – no! does it create wonder and awe – no! and there are tons of dirty profits made by the distributers.

    all expression is not art simply because the artist claims it is. I could take a pile of my dog’s poop, put it in a plastic bag, freeze it and you know what would make it art? a $50,000 price tag! and there would be more than one stupid bozo willing to pay it!

    a urinal is not art simply because it is hanging on a wall as part of an exhibit rather than functioning in a men’s rest room!

    let’s get real about this…

  14. Nana: In some respects, I totally agree with you, that these depictions do nothing good for our souls and spirits. But . . . I think art is in the eye of the beholder. People said much the same about cubism as you are saying here! Sometimes art can be taking something out of its usual context and displaying it as an object to be examined and perceived in a new way — Andy Warhol’s Campbell’s Soup Cans, or Duchamp’s urinal Fountain. Regarding the latter:

    “Whether [Duchamp] made the fountain with his own hands or not has no importance. He CHOSE it. He took an article of life, placed it so that its useful significance disappeared under the new title and point of view – created a new thought for that object.”

    Now, I don’t think most manga has a higher artistic purpose like that. But some art that is otherwise very disturbing has a social purpose in highlighting or revealing that which society would rather not see in itself. Manet’s Olympia did that: it was considered “vulgar” and “immoral” when it was first displayed because of the implied subject of a self-assured courtesan/prostitute, and now it is considered a masterpiece in the Musee D’Orsay.

    So, I consider these “real” aspects of art. Sometimes the subject matter seems indefensible and totally without merit, or in fact reprehensible and corrupting. But . . . I don’t think art and absolutism go together. It’s relativistic. And in the US, we (at least nominally) support relativism within the freedoms guaranteed us, one of which is freedom of speech.

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