The first “CG child pornography” arrest: more opportunistic enforcement
Last Thursday, the Tokyo Metropolitan Police Department's Youth Development Section announced that it arrested a 52-year old man from Gifu on suspicion of violating the Child Pornography Law, in what it trumpeted as the first “exposure of computer graphics child pornography” nationwide. Initial news reports provided scant details beyond the “CG child porn” headline, fueling speculation that the police were somehow anticipating the current reform bill by cracking down on purely fictional material, namely pornographic 3D models of imaginary character. As later reports revealed, however, the object of the investigation turns out to be of a quite different nature.
The man had been distributing, directly as well as through not particularly shady channels such as Melonbooks, a doujin picture collection called 『聖少女伝説2』 Seishoujo densetsu 2, whose official website, as helpfully pointed out by Yaraon, is preserved on the Internet Archive. You can get a sense of the nature of the material there. As reported by Sankei News, it consists of scanned pictures of young girls from nude photobooks of the 1980s and early 1990s, with slight edits to hair styles, skin colors and poses using some photo editing software, presumably so that the author could pretend that they were “computer-generated” and hence, he believed, legal.
Nude photobooks of teenage girls under 18 (featuring more or less artsy shots of the models, with no racy undertones in general) were relatively widely available in Japan prior to the Child Pornography Law of 1999. In fact, part of their success in the 1980s had been driven by the censorship regime in place at the time, which specifically targeted pubic hair: it was only possible to publish an unmosaic-ed photograph of a naked person if they hadn't grown pubic hair yet. Those photobooks, although certainly not pornographic in the usual sense of the word since they don't depict sexual activity or anything close to it, are generally understood to qualify as “type 3 child pornography” under the definition I discussed in the previous post (even though it is debatable that the average person would find them sexually arousing!), and have thus been illegal to produce and distribute since 1999—they would become illegal to own as well if the current reform bill passes. Note, as an aside, that this makes people like Jock Sturges and Lewis Carroll “child pornographers” under Japanese law.
The suspect in this case, apparently a fan of those vintage photobooks (the site linked above contains analyses, chronological discussions and criticism on the subject) and certainly aware of their legal status, tried to circumvent the interdiction by altering pictures from them in software to a sufficiently large extent as to pass them off as CG images. But this doesn't seem to work as a legal defense. Like I mentioned in the previous post, the law as it exists today bans visual depictions of real, existing minors. The scope of what qualifies as a visual depiction, though, has long been understood by legal experts to be potentially quite broad, based on the discussions in the Diet at the time the 1999 law was passed. Even drawings that use a real minor as a model could qualify, and what is often referred to in the West as “virtual child porn”, such as editing the face of a real minor into a porn picture with adult models, certainly does. So it is easy to imagine that a few Photoshop filters won't cut it. Lawyer Okumura Tōru has a detailed discussion of that question on his blog, citing several reference books on the 1999 law, internal enforcement guidelines from the National Police Agency and other sources that pointed out, well before the current case, the potentially broad nature of the visual depictions covered under the existing ban. (The blog post also mentions a legal defense that might actually work, aside from the “sexually arousing to the average person” criterion; namely, at the time those alleged “child porn CGs” were produced, in 2009, all the real people depicted were presumably well above 18, since the photographs the “CG images” are based on date back from perhaps 20 years earlier. Whether the images qualify as child pornography nonetheless seems to be untrod legal territory!)
You could hardly be blamed for not realizing that the ban applies that broadly, though, since the wording of the law is rather vague to begin with, and there hadn't been any prosecution of such material in the 14 years since the provisions were introduced. This arrest also takes place four full years after the picture collection openly hit the shelves, with most copies presumably sold in the first few months. So the argument, floated here and there, that the police action at hand somehow responds to a serious and urgent threat against the human rights of children is a wee bit difficult to take seriously.
The timing of the arrest, right when the child pornography reform bill enters “continued examination” despite vocal opposition by numerous organizations, leaves little doubt as to the motivations behind it. Like many similar law enforcement operations over the years, most recently the crackdown, back in April, that led to the demise of Core Magazine's decade-old eromanga monthly Comic Megastore over obscenity allegations (the censoring of genitals was allegedly not strong enough), its main purpose seems to have been political expediency. In this case, putting the phrase “CG child porn” into headlines, so as to support the reform bill backers in their effort to demonize fictional material. Opportunism, rather than any regard for public interest, often seems to be the guiding principle behind enforcement of the vague provisions of both the Child Pornography Law and Article 175 (the obscenity statute of the penal code).
It might backfire this time, as opponents of censorship, contacted by lawmakers, point out that, since this action establishes “virtual child porn” as off limits under the current law, there really is no need for the additional provision in the reform bill regarding anime, manga and games. But don't get your hopes up: bill backers like Katayama Satsuki are going all out these days with Minority Report arguments on the need to catch criminals before they commit crimes, and how banning loli manga would do just that. That's a story for another post, though.
Speaking of vocal opposition to the manga-anime-game provision in the reform bill, let me leave you with this video message on the subject by Svetlana Mintcheva, Director of Programs at New York-based National Coalition Against Censorship.