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Why We Fight
The reasons why people would oppose current Japanese legislative efforts to expand the child pornography law will vary from individual to individual. My rationale is fairly straightforward.
I oppose the criminalization of possession of child pornography in Japan primarily because the current legal definition is extremely vague and ripe for abuse.
Current Japanese law defines child pornography as:
i. Any pose of a child engaged in sexual intercourse or any conduct similar to sexual intercourse;
ii. Any pose of a child having his or her genital organs touched by another person or of a child touching another person's genital organs, which arouses or stimulates the viewer's sexual desire;
iii. Any pose of a child wholly or partially naked, which arouses or stimulates the viewer's sexual desire.[1]
I have few reservations over the first two subsections, but the third subsection is astonishingly subjective. By this definition, any photograph or film of anyone under the age of 18 who is naked or partially naked can be considered criminal regardless of the context of the subject matter. Pages from the National Geographic could be considered child pornography if someone finds the material to be "arousing or stimulating." Family albums containing images of children bathing or undressing could be considered child pornography if it is in the hands of pedophile.
Note that child is defined as "a person under eighteen years of age" under Japanese law. The current law already bans the sale, production, and distribution of such material, and the courts have struggled to define what material should be included under this definition even 9 years after the law was first enacted.
One simple solution is to drop the third subsection. Yet certain legislators have insisted that the third subsection be retained to allow the police maximum leeway in pursuing material they find to be objectionable. They claim the police will only use this power judiciously. I do not share their faith in the Japanese police force.
While current efforts to expand the definition of child pornography to include fictional material-- i.e. manga (comic books,) anime (animation,) and video games--have been placed on hold, the ruling party's current bill contains a provision to "study the effects of fictional material" and to re-open the debate over banning fictional material when the law is reviewed for another revision in three years time after the current revision is passed. It is abundantly clear many legislators and moralists have their aim on banning fictional material as well. A petition campaign by a Japanese charted entity of UNICEF, the Japan Committee for UNICEF, has been pushing hard to make fictional graphic depictions of anyone below the age of 18 engaged in sexual acts to be banned.[2] Numerous legislators have stated that the current bill will be a step toward banning fictional material as well.
I oppose the expansion of the definition of child pornography to include fictional material for the following reasons.
1. It is misguided.
Law enforcement resources would be better allocated going after real cases of child abuse instead of going after fictional cases. The Japanese budget is stretched as it already stands. Money should be directed toward better financing of child welfare offices and school counselors.
The banning of fictional depictions of child abuse would likely be as meaningless as the banning of fictional depictions of car chasing with the aim toward reducing motor vehicle accidents in real life.
There are better ways of combating abuse of children than meddling with a fictional domain.
2. Its rationale for banning an entire subject matter is flawed.
Child pornography involving real minors is likely to be a byproduct of actual child abuse. Content in itself is not the issue--Child pornography has been outlawed because the methods involved in production involve real children in possibly abusive circumstances. How the material was produced is what makes it criminal, not what impression it conveys on the audience. Movies where members of the cast or the crew are kidnapped to produce the film should be banned regardless of the content of the film. Snuff films are illegal because killing an individual for the sake of filming the act is illegal and reprehensible. If content alone was the issue, war footage and horror films should be banned as well.
One aim of banning child pornography is preventing the participation of children in the sex industry. In part, the foundation of child pornography is based on an extension of child labor law, not the purging of a link between sexuality and minors from human thought. If such a purge was to be accepted, it would easily lead to branding anyone that conducted any type of sexual act as a minor as being a deviant and subject to treatment.
Child pornography involving real children being sexually abused is horrid beyond words. For that very reason, I find it reprehensible to mix together such acts of human misery and suffering with illusionary fantasy that exists only in the author's imagination. Widening the definition of child pornography to include fictional material belittles the gravity of real sex abuse.
3. Its logic of encouraging criminal behavior is absurd.
Many who advocate the banning of fictional erotica featuring minors claim that the presence of such material wets the appetites for criminal behavior and makes actual sexual abuse of child acceptable. At heart of this argument is the assumption that people cannot control their urges when it comes to sexual material and that the presence of even fictional child abuse encourages real child abuse. Many cite the confessions by convicted criminals as proof of this logic.
By this logic, the Bible should be banned for inciting the destruction of entire civilizations and encouraging the genocidal efforts conducted in its name over the course of human history. Many convicted criminals also cite the Bible as their inspiration of conducting astonishingly savage acts, and yet few would attribute the Bible as the root cause of such criminal behavior. Why?--Because free societies accept the principle that people are responsible for their own actions.
Some might argue that suggestive sexual material should be banned because, while most people are responsible and can differentiate between fantasy and reality, pedophiles and other mentally unstable people cannot. This school of thought advocates banning certain material based on how contact with provocative material might incite easily susceptible individuals toward criminal behavior. This is the equivalent of banning alcohol entirely from society because some have a drinking problem. Again, this logic is unbelievably reckless as well.
Furthermore, crime statistics published by the Japanese police themselves show no causality between the proliferation of erotic material and sex crimes. The crime rate has dramatically decreased since WW2 while the availability of erotica and violent fictional entertainment has risen by leaps and bounds during the same period.
4. The ban will more than likely be unenforceable and be effective only marginally.
Unlike in real life, characters in fictional material do not have birth certificates. It is easily imaginable that an endless cycle of accusations and denials will unfold regarding establishing the "true age" of fictional characters. Authors and publishers will more than likely attempt to proclaim that the characters look young, but they are actually above the age of 18. Physical attributes vary between widely depending on race and ethnicity, not to mention fictional non-human characters. Should all humanoid entities, such as elves and vampires, be subject to the same set of standards? What of graphical depictions of angels and gods? Shall Greek mythology, filled with narratives of sexual encounters between old and young, gods and humans involved in circumstances that would clearly be deemed illegal in real life be treated as illegal as well?
Publishers and authors are extremely proficient in adapting toward new regulations. If graphical depictions are banned, then abstract or comedic depictions will increase. If visual imagery is banned, then novels and audio CD dramas will proliferate. If certain key concepts--such as articles of clothing or immature speech patterns--are marked as symbols susceptible of prohibition, these will be replaced by a new set of symbols.
Either an ever increasing set of symbols will be deemed to be inappropriate to be linked to a core human attribute--human sexuality--or the futility of the ban will lead the law to become impotent over all. It will join a set of legal tools rarely invoked by the police, yet commonly sited as justification for self censorship, not to mention creating an environment ripe for corruptive collusion between the police and industry groups to come into being.
5. Such a ban will stifle creativity and impoverish the cultural landscape.
As I have already mentioned, the ban on fictional depictions involving minors threaten the existence of numerous works of folklore, mythology, art, and literature. Huge swaths of shelves of libraries would be made bare if the ban was rigidly enforced. And then there is the question of untold millions and millions of books that are in private ownership. Should individuals be penalized for possessing books that they legally bought only a few years ago?
The inclusion of a grandfather clause could provide consolation toward collectors, but the impact toward the contemporary society would no doubt be pronounced. Banning the fictional depictions of minors involved in sexual situations will make a fundamental core human attribute taboo. It will deprive authors and artists in their effort to address deep social issues if they wish to take up the subject earnestly since the ban will penalize those that take up the issue of age and abuse more severely than those that flirt around with the subject matter.
Even if the ban is not rigidly enforced, publishers with reputable standing will likely enforce more stringent self censorship policies since they have more to lose compared small time publishers. Even today, numerous adult manga publications have self censorship standards that are mind-boggling. Authors have complained about how some editors have insisted on having all female characters appearing in their works be endowed with large breasts because drawing women as they appear more like in real life was deemed "too childish looking." While these guidelines vary greatly between publishers and video game production houses of anime and video games, but passing any law that forbids imagined underage representations will contribute to an ever more warped representation of the humanity in fiction. An author's subjectivity should never be driven by fear of persecution.
Many have argued that this ban is aimed only toward "offensive, vile, and exploitive material." Wholesome publications and works of art shall be exempt, they argue. Such a faith is foolish at best and self-delusionary at worst. Who shall judge for the entire population what is offensive or not? Few works of art come into being with the intent of disrupting human society. The value attributed to works of literature and art change over time. The works of modern art and literature from the last two centuries are filled with examples where they were deemed to be vile, corruptive trash by contemporary authorities, but now these same works enjoy high status as priceless cultural treasures.
If some find the material to be offensive, they have a simple choice of avoiding such material. If they think too many people are paying attention to such material, they are free to criticize such trends. Ideally, such frustrations should be directed toward creating new material that competes and possibly outshines what they deem to be offensive. A culture grows richer through addition, not by subtraction.
6. It will create a dangerous legal precedence and it is far too extreme.
A prohibition on certain fictional material dependent on subjective standards rationalized by unproven criminal responsibility that will negatively impact the cultural landscape pursued for securing imagined gains of safety should make people sit up and take notice, and yet all these concerns pale in light of how the proposed ban would penalize individuals essentially for having a rich imagination.
A ban on fictional depictions of minor engaged in sexual situations has the very real potential to brand individuals as sex offenders even though they have had no sexual contact with real people. I believe there could be no legal justification for destroying people's lives simple because they drew doodles on paper, but the proposed ban would create such a legal precedence.
If allowing individuals to engage in fictional depictions of underage sex is deemed to be too dangerous for society because of its supposed anti-social nature, what other depictions of anti-social acts should we ban next? Shoplifting? Bullying in school? Rape? Discrimination based on class? War crimes?
In a nutshell, such a ban would be Orwellian.
A ban on manga, anime, and video games simply because it features underage characters is a misguided Orwellian policy that will likely produce only marginal results in exchange for a huge toll on a free society. I am absolutely certain that history will not look back kindly upon such a ban, and it will join a long list of colossal failures of regulatory policy, such as the prohibition of alcohol in the US between 1920 to 1933, various sodomy laws, the comic book code, and bans on socialist literature in Japan during the prewar era.
It is important to note that all these failed moral crusades were led by virtuous and diligent individuals intent on making the world a better place. At first, many members of society were receptive to these well intended efforts, brushing aside those that raised objections as being alarmists or extremists. Over time, the regulatory mechanism will form a life of its own. Regulatory policies encourages the custodians of that policy to expand the limits of the regulation because their authority is dependent on the extent of regulation. Sometimes the regulatory regime will morph into a beast it was never intended to become, and at that stage it will become extremely hard to reverse such failed policies. Failed regulatory schemes have a tendency to create burdensome legacies that will tax upon society for decades to come.
We need not tread upon that path once more.
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