Japan vs The UN: The Fight For Artistic Freedom

The sexualization of young characters is common in Japanese porn. Michiko Nagaoka, director of the anti-lolicon organization Juvenile Guide, reports that around half of the pornographic animated works produced in Japan feature schoolgirls; (1) many also involve relationships between an adult and a minor. Most of these works are available for viewing online, though come into ‘possession’ of them in some countries and you’ll be breaking the law. The ease with which this material is accessed, and the relentlessness of some parties’ attempts to get it criminalized worldwide, has led to a great divide in the English-speaking sphere of online anime fans.

For some people, this media is at the very least ‘gross’ and unacceptable; many believe it’s a factor in the normalization of pedophilia and a primary cause of child sexual assault, and that the defence of it under the umbrella of ‘free speech’ is a red flag that someone is a pedophile. For others, including most of the media’s academic researchers, no causal link between it and CSA can be established; many see lolicons as a separate group from pedophiles with distinct goals and interests, much like those who engage in paraphilic infantism (age play). The Comic Book Legal Defense Fund has fought against the criminalization of those who possess lolicon manga, and popular figures such as Neil Gaiman have spoken up about the necessity of accepting this ‘unacceptable’ media when it comes to the laws we make.

The United Nations sits on the former side of this divide. They’re adamant, with bountiful evidence to the contrary, that pressuring governments to criminalize lines on paper will help protect the children of tomorrow. The new Optional Protocol to the Convention on the Rights of the Child seeks to pressure governments worldwide into punishing ‘virtual child pornography’, where no real or identifiable minor is harmed, as though it were actual child pornography. The UN published a draft of these guidelines earlier this year, devised by ‘persons of high moral character’, and despite comments from Japan, the US and Austria, and organizations such as the CBLDF and the Prostasia foundation, their final draft still has them set on seeing no difference between fictional ageless lolis and real, vulnerable children.

This isn’t Japan’s first rodeo when it comes to battling pressure from the UN against the freedoms of their artists. Back in 2016, the UN’s ire was directed towards the depiction of sexual violence against women in manga; contrary to popular myths of ‘free speech’ advocates being predominantly male, it was Japan’s Women’s Institute Of Contemporary Media Culture that gave the retort. Speaking on behalf of the Institute, Kumiko Yamada’s statement raised two key points: that violence in fiction does not threaten the rights of real women, and that manga is a field of expression that Japanese women have cultivated for themselves.

Both of these remarks are relevance to the current controversy over lolicon. No causal link between lolicon fiction and the sexual abuse of real children has been established by researchers and experts in the field. Indeed, studies have shown that countries that have legalized ‘virtual child pornography’ have seen a decrease in sex crimes against children. In Milton Diamond and Ayako Uchiyama’s 1999 study on ‘Pornography, Rape and Sex Crimes in Japan’, they observed that the while the lolicon ‘boom’ occurred in a time when sex crime reporting went up overall, reports of child sexual assault went down, which also parallels a lack of positive correlation observed in Denmark. Another of Diamond’s studies, a more recent analysis of the Czech Republic’s history with legalizing child pornography, saw a similar lack of causality: “child sex abuse, despite a brief upswing toward its predemocracy rate, resumed a decline while even child porn was not illegal”. These findings match up to conclusions being drawn in psychiatric practice: in 2009 a study in BMC Psychiatry found that “the consumption of child pornography alone does not seem to represent a risk factor for committing hands-on sex offenses”.

Note that these findings include those who watch actual filmed CP, in which a child has been sexually assaulted. Real child pornography should never be legalized, not because it could convince a viewer to act in a certain way, but because it’s effectively a crime scene. But remove a real child being harmed, and what are we left with? Something ‘gross’ and taboo, but still lacking any causal link to the harm of real children. Even if filmed CP doesn’t represent a risk factor for its viewers offending against minors, the distribution of it creates a market for more media to be produced through the suffering of innocent children. But the distribution of lolicon and shotacon imagery only forms a market for more lolicon and shotacon imagery. When 2D lolis first started appearing in Manga Burriko, readers wrote in to demand the removal of the photos of real models. (2) Otaku who obsess over these images don’t use them as a surrogate for the real. To them, the two-dimensional image isn’t a rough copy of reality. It’s superior to it, and they know how to set up boundaries around it.

Japan might be standing against the UN’s attempts at censorship, but other countries have been more willing to give in to their paranoia over the power of drawings. In 2011, due to UN pressure and with involvement from ECPAT (End Child Prostitution and Trafficking), the South Korean government revised their definition of child pornography to include any ‘creations or persons who can be perceived as minors’. The result was a 22 times increase in the number of investigations for child sex crime. Most of them were prosecuted with the same severity as someone who has harmed a real child. The majority of them were women.

The proceedings of these South Korean trials, while tragically unjust, can give us much food for thought as the UN turns its anti-lolicon ire towards other nations. Many who hold similar sentiments to the UN often lampoon the “100 year old loli” ‘excuse’ that they see lolicons parade around online. However, in one Korean trial, discussed in the article linked above, this argument yielded a dramatically reduced sentence:

One lawyer in the trial for animation characters argued in court: “So, if the law punishes a material for its imaginary sexual character’s age, how will we measure the age of, say, personified animals, extra-terrestrials, or for that matter vampires whose average age in the stories seem to exceed 100 years?” A judge hearing the argument changed the count from child pornography to obscenity, which by the way carries only 1 year imprisonment at most.

Obscenity charges and a charges for possessing child pornography are wholly different aspects of how lolicon media sometimes lands people behind bars: Handley ended up only facing an obscenity charge after his trial, in which he found himself under the thumb of the Miller test.

There is lot of weight to the lawyer’s question above: how do we criminalize lolicon images effectively if the age of a character is as made up as everything else about them? If we do it by appearance alone, we will easily end up delegitimizing the sexual expression of petite women, and the freedom of artists to experiment with style. Most anime characters look younger than their supposed age. Would drawing porn of chibi-fied adults count as child pornography? Anyone seeking to penalize the possession of lolicon needs to answer these questions, and in the process realize that they can’t be satisfyingly addressed.

It isn’t only the UN that are frequently failing to attend to these issues with regulating ‘virtual child pornography’. A 2015 paper by Cory Lyn Takeuchi calls for Japan to align itself with the UN rather than resist their pressure. Takeuchi begins by working closely with the history of lolicon that scholars such as Patrick W. Galbraith have explored in depth. But the complexity of this history, and what these images really mean to their consumers, is overlooked in favour of an ultimately flat recitation of Japan’s ‘obligations’ to the rest of the world. The fact they co-signed the Council of Europe’s Convention on Cybercrime, and the existence of other UN conventions and protocols, is presented as a non-negotiable clamp around Japan’s freedoms to decide for itself how to best protect its public. Takeuchi then goes on to parrot a familiar argument:

since virtual child pornography may be used by sexual predators to “groom” their victims, it would be of net benefit to the public welfare to criminalize the possession and distribution of such materials. Even assuming the claim that Lolicon and related virtual child pornography do not engender a culture accepting of child sexual abuse, the use of virtual child pornography in grooming processes is an unfortunate and stark reality

Takeuchi cites Alisdair A. Gillespie’s chapter on ‘virtual child pornography’ (in his book Child Pornography: Law and Policy) for this paragraph. We’re told to ‘see’ Gillespie’s work to understand better how banning lolicon media will be of ‘net benefit’ to the public insofar as it would lead to children being groomed less by it. But Gillespie argues against this belief in the cited chapter. He shares a perspective with the US Supreme Court that was presented in the proceedings of Ashcroft vs Free Speech Coalition, and says it ‘must be correct’:

There are many things innocent in themselves, such as cartoons, video games and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused

While some predators will indeed use lolicon images to ‘groom’ children, the idea of banning lolicon and shotacon images on these grounds was thrown out in the proceedings of this historic trial; Gillespie emphasises how grooming is primarily a process involving the behaviour of the predator rather than the media they use, and grooming is already illegal. The more we try to blame objects for the crimes and injustices in our world, the more we distract ourselves from the real problem: the extreme minority of people who would use those objects to do evil. In this way the controversy around lolicon has many parallels with the discourse around violent video games and myths about their negative effects on young people. The manufactured outrage around Joker is also worth a comparison.

Still, Japan isn’t the idyllic censorship-free paradise that some try to paint it as online. In January 2004 the Misshitsu trial saw mangaka Yūji Suwa tried for obscenity, in the first major trial for such an offense in decades, due to the indecent depiction of women in their work. In her chapter in McLelland’s The End of Cool Japan, Kristen Cather considers and criticizes how the court took a ‘feminist’ position, believing that banning an offensive depiction of fictional women would help defend real women; they acted in direct contrast to what actual women in the manga industry have said, as illustrated by the Yamada’s previously discussed response to the UN. The result of the Misshitsu trial was a chilling effect on Japanese bookstores – many removed their adults-only sections, fearing they might become the next target of this action against obscenity. With pornographic manga being a ‘women’s space’ according to Yamada, can we really call this kind of censorship ‘feminist’?

Thankfully the general voice of the Japanese government today is still set on protecting the freedoms of its artists. When the UN first published their proposed action under the the ‘Optional Protocol to the Convention on the Rights of the Child’, Japan’s response expressed their discontent with the idea of regulating ‘non-existent children’:

Japan believes that restriction on freedom of expression should be kept to a minimum and that highly careful consideration needs to be given to the scope of child pornography. In light of this, considering that ‘pornography’ is traditionally referred to as visually recognizable objects, whether it includes audio representations or written materials needs to be carefully considered. Japan thus proposes deleting “audio representations;” and “written materials in print or online;” from the third sentence of paragraph 61.

“In addition, for the reasons explained above, whether penal sanctions should be imposed even if the case involves pornography of a non-existing child needs to be carefully considered. Japan proposes adding “as far as it represents an existing child” at the end of paragraph 61

Despite this protest, and similar complaints from the US and Austria, the final draft of the new protocol is still set on pushing for the global criminalization of lolicon media:

The Committee is deeply concerned about the large amount of online and offline material, including drawings and virtual representations, depicting non-existing children or persons appearing to be children involved in sexually explicit conduct, and about the serious effect that such material can have on children’s right to dignity and protection [..] The Committee encourages States parties to include in their legal provisions regarding child sexual abuse material (child pornography) representations of non-existing children or of persons appearing to be children, in particular when such representations are used as part of a process to sexually exploit children.

Here we see again the belief that regulating lolicon images will have an impact of the rate at which children are groomed. The UN is not interested in having any discussions with experts and researchers on this issue: nor are they interested in the US Supreme Court’s ruling that media should not be banned simply because a fringe minority of criminals might use it as a marginal part of their criminal activity. They have ignored comments from organizations such the CBLDF and the Prostasia foundation, and flatly equated drawings of CSA to actual filmed CSA. The UN believes it is ‘protecting’ children by asserting that its member nations should see no difference between lines on a piece of paper arranged to depict a crime and the occurrence of the crime itself.

As a result of this final draft being published, Japan’s Ministry of Foreign Affairs released a brief public response (translation here). Paragraph 2 and 3 of the response outline Japan’s mindset towards the UN’s anti-lolicon guidelines going forward:

2. This government is aware that careful consideration must be taken when referring to matters covered by existing treaties. At the end of March of this year, opinions on these guidelines were submitted to the committee. However, it is regrettable that these guidelines were published without significant discussion with any signing parties, including Japan.

3. This guideline was submitted by the committee as a guide for implementation of the treaty [of the Rights of the Child that Japan signed]. These guidelines do not change the treaty itself. They are in no way legally binding. This government’s position on these optional guidelines has been to send multiple applications to the committee, which has confirmed that these guidelines are not legally binding on any signing party.

Emphasis is given above for two key points: by stressing that the terms of the protocol are not legally binding, the Ministry implies that Japan is not in any rush to agree and co-operate with them. More important however is the fact that a lack of discussion between the UN and Japan occurred. It is fair to say that this is a microcosm of all the problems surrounding discourse about lolicon – a lack of communication, a lack of possible communication, between those who attack it and those who defend it. Online it’s hard to say a single word in defence of artists being free to draw lolicon without simply being labelled a potential child sex offender, as my own experiences on Twitter have shown. (3) The UN’s ‘persons of high moral character’ are acting similarly: they have never published anything that unpacks their views on ‘virtual child pornography’, and the relevant literature and research on it, in any detail. Those who do their research on the subject can only be left seeing them as frauds, political bullies who want to claim they’re protecting children more than they want to do anything that actually demonstrably protects them.

The UN has had Saudi Arabia sit on their Human Rights Council, a country that still hosts many of the world’s millions of child marriages every year. Why does the UN speak so boldly of how banning drawings will protect children, without any evidence, while this injustice goes on? You would think that an organization devoted to keeping children safe would first solve the irrefutable problems of its own member states before resorting to nebulous myths about media affects.

This is about much more than freedom of speech and artistic expression: when it comes to protecting children from abuse, our priority needs to be on making measurable change and moving beyond discourses that don’t make any demonstrable difference.  As long as we lack a causal link between lolicon and real CSA, online discourses around offending pedophiles should be centred on well-evidenced avenues for shutting down their behaviour – spotting predatory behaviour and teaching children better about spotting it themselves, denouncing practices like child marriage, and so on. Sadly, many online will spend all their time attacking art and artists because that’s the closest thing to them, and the easiest thing for them to harass people over, so they can get their dopamine fixes while appearing virtuous to their friends, all while doing nothing to help real children around the world.

If we can unite more against this kind of behaviour, perhaps the United Nations can eventually move beyond it too.

Footnotes:

1. Every citation of Nagaoka’s report leads to a Japan Times article that has been deleted. Wayback Machine can’t find an older version of it, but this linked forum post provides a quotation of the article in full.
2. There is a good discussion of this in Patrick W. Galbraith’s ‘Lolicon: The Reality of ‘Virtual Child Pornography’
3. Part of the reason I talk a lot with anti-lolicons on social media is to get a lot of experiences with their argument patterns – with UN pressure on lolicon media mounting there seems to have been an increasing trend towards total dismissal. You’re simply called a pedophile and myths are recited around your discussion without anyone actually engaging in it. The recent popularization of ‘clowning’, where people simply spam clown-related images, gifs and emojis as a form of ad hominem, has probably exacerbated this.

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Apologies for the long delay between articles again! I’ve been busy with a lot of things since I got my new PC, thanks to the support of my amazing Patrons.

The trouble with working on a lot of things at once is it takes longer to get something completed. But when I read the news about the UN still trying to make lolis illegal, I knew what I had to finish first.

Thanks for reading, and a special thank you to anyone supporting my work either through sharing it or via the Patreon. Every bit of help gets me one step closer to working to support artistic freedom full-time.