What is child pornography in Japan?
At the end of May, the ruling Liberal Democratic Party of Japan and its allies the Komeito and the Japan Restoration Party introduced, yet again, a bill to amend the national Child Pornography Law, citing the need for a further crackdown on the exploitation of children, and for aligning Japan with “global standards” of regulation.
In reality, however, the bill, which is essentially a carbon copy of a previous one submitted in 2009, and which had been scrapped due to the LDP's historic electoral defeat that year, does nothing to further its stated goals. Its main provisions include a ban on “simple possession” of so-called child pornography, and a call for a three-year “inquiry” into the detrimental effects of sexual representations of minors in fiction (anime, manga and games), at the end of which the law would be expanded to include those other materials. Now you be thinking that this isn't so bad, for reasons such as:
- “What's wrong with banning possession of child porn? My country does it too! That stuff shouldn't exist! It gets made because there are criminal perverts who buy it! And by the way, if you defend it, you're a filthy pedophile, go kill yourself!”
- “So the anime ban isn't really a ban, just an inquiry. I see nothing wrong with that. They won't ban the stuff if they don't come up with a serious argument that it harms real children.”
Both of those viewpoints are based on assumptions that are severely at odds with reality. This post is about the first point; in particular, I would like to explain why, even though it is in fact true that many countries have a ban on the simple possession of what they call “child pornography”, adding such a ban to the Japanese child porn law would very much not align it with “global standards”. I might discuss the second point in a later short note.
Where we are now
Before I delve into the specifics of the child porn law, a few words on its current status. This has all been covered in English in real time and much greater details by Dan Kanemitsu: please refer to his blog!
Ahead of the bill's introduction and especially after it, a strong opposition movement started to organize. A number of personalities, lawmakers, academics, professional organizations and other interested parties expressed very strong concerns over the bill; meetings were set up to discuss it (though the bill's proponents consistently refused to participate in any of them); people like Akamatsu Ken, of Negima fame, went to meet Diet members from across the political spectrum to explain the dangers of the bill, and reported that, even within the LDP, opinions were divided, with a number of the younger party members rather opposed to the current wording, especially the targeting of anime, manga and games. Then, on June 26th, the Diet session ended with no time to examine the bill in either of the Houses, and it was hoped that, like many other more important pieces of legislation, it would simply be shelved for the time being. Unfortunately, due to efforts by its proponents, spearheaded by LDP Policy Research Council Chairwoman Takaichi Sanae, it was placed in “continued examination”, meaning that it will be discussed in its current form in the next Diet session, after the next Upper House elections where the LDP is certain to win in a landslide, and will be able to push the legislation through even if all other parties were to vote against it. So the situation is pretty dire.
Why banning possession is a terrible idea
Back to my main point. I'll be blunt and admit that, personally, I'm opposed to bans on the simple possession of any kind of information, be it Justin Bieber song files, top-secret documents, instructions for building improvised explosive devices, or indeed pictures of mass naked child events. In my experience, most arguments in favor of such bans tend to be bogus: for example, the claim that “there would be no producers of child pornography without buyers”, even if it were true, would justify banning buying (or perhaps acquiring) child porn, not owning it; that's a big difference in terms of judicial risks for ordinary people (and is, by the way, one of the key differences between the current LDP/Komeito/JRP reform bill and the counter-proposals put forward by the Democratic Party of Japan and the Japanese Federation of Bar Associations). The real argument justifying banning possession seems to be that it makes prosecution easier; in other words, in good cases, the police obtain evidence that wrongdoing of some kind (copyright infringement, leaking of state secrets, photographing of an underage person's private parts, etc.) has occurred, but finding themselves unable to do something about it, they want to catch the guy who had the evidence so the blame can at least be laid on someone.
If you do think that your own country's ban on the possession of child pornography is somehow justified, however, this post isn't particularly intended to convince you otherwise (although you might want to look at, say, what Rick Falkvinge has to say on the matter). The issue I would like to underscore is the current definition of “child pornography” in Japan, which makes the Child Pornography Law of 1999 a pretty awful law as it stands, and the reform proposal, which broadens its scope to include possession and more while keeping the definition intact, even worse.
The problem in short is that this definition is both overbroad in some respects, and underbroad in others: as a result, the Child Pornography Law criminalizes largely harmless imagery, while most of the gut-wrenching material you might be thinking of when you hear the words “child pornography” is out of scope. And I'm not talking about things like junior idol videos, here, which English-speaking anime fans seem to get excited about here and there, probably imagining them as much more sinister than they really are (I've likely sampled a wider range of that type of material than the average ANN forumer, and while it varies from the pretty cute to the downright tasteless, I haven't seen anything worth grabbing a pitchfork over). The really disturbing stuff, photos of real, sexually abused young children, does for the most part not qualify as child pornography under the current law (and still won't if the reform bill is passed).
To put it more bluntly, and I'm really sorry to make things graphic but it probably has to be done, a photograph of the semen-covered face of a molested six-year old girl is not child pornography in Japan. This might sound hard to believe, but isn't a theoretical loophole: this has been firmly established in numerous rulings of Japan's higher courts.
What qualifies as “child pornography” in Japan
Article 2, paragraph 3 of the Child Pornography Law of 1999 defines “child pornography” (児童ポルノ) as any photograph, computer file or similar media which includes a visual depiction of a minor (person below 18 years old) which satisfies one of the following three conditions:
- the minor is engaged in sexual intercourse or quasi-sexual intercourse [性交又は性交類似行為, i.e. vaginal or anal sex];
- another person is touching the genitals-or-related-parts [性器等, i.e. genitals, anus or nipples] of the minor, or the minor is touching the genitals-or-related-parts of another person, and the visual representation is sexually arousing;
- the minor is fully or partially undressed, and the visual representation is sexually arousing.
In legal literature, those three types are usually referred to as type 1, type 2 and type 3 child pornography. Japan's legal system has a strict interpretation of criminal law, so the scope of the Child Pornography Law is strictly fixed by the definition above.
Now, consider for example the case decided by the High Court of Takamatsu on Sept. 7th, 2010. The facts were as follows: the suspect had taken a young girl (six years old at the time) into a park's public toilet, pulled down her panties, ejaculated on her face and taken a number of pictures of that event with his phone's digital camera. In addition to indecent assault, the court of first instance had convicted him of several counts of producing child pornography, for a number of pictures including the following three (mosaic-ed, from lawyer and Konan University law professor Sonoda Hisashi's excellent nicodouga presentation):
Picture 1 shows the little girl with the perpetrator's hand covering her mouth, as he takes her to the public toilet. Picture 2 is the little girl half-naked in the toilet. Picture 3 shows her face with drips of the perpetrator's semen. The High Court was asked on appeal to decide whether those pictures really were child pornography, and partially overturned the lower court's conviction, ruling that Picture 1 and Picture 3 did not fulfill the definition.
Indeed, Picture 1 doesn't depict vaginal or anal sex, so isn't type 1 child pornography; there is no genitals in the frame, so it isn't type 2 child pornography; and the victim is fully clothed, so it isn't type 3 child pornography.
Similarly, Picture 3 doesn't depict intercourse or genitals, and even though the victim may have been partially undressed at the time, this is not apparent in the picture, so none of the three criteria is satisfied. To reiterate, the High Court ruled that a picture of the semen-covered face of a molested six-year old girl is not child pornography. See also the discussion of that case by lawyer Okumura Toru.
Moreover, while you may think Picture 2 is a clear-cut case of type 3 child pornography, the High Court had to resort to a somewhat convoluted argument to justify holding that it was indeed such, and legal experts asked to comment during the case have expressed the opinion that Picture 2 didn't constitute child pornography either. Clearly, the picture depicts a minor in a partial state of undress. However, for it to qualify as child pornography, it should in addition be “sexually arousing”, and the standard for determining that is the point of view of the average person, not the perpetrator himself (who may indeed find it sexually arousing). Therefore, what the court did argue is that this picture of a six-year old forced into the toilet and with her panties pulled down did actually appeal to the sexual interest of the average person, given the lurid circumstances in which it was taken. The average person would, arguably, disagree.
In fact, since the average person is usually not sexually aroused by pictures of partially naked young children, or of young children touching other people's genitals or having their genitals fondled, very little actual child abuse material qualifies as either type 2 or type 3 child pornography. Instead, material that unarguably qualifies as type 3 child pornography is, typically, seminude shots of 16 or 17-year olds in slightly alluring poses: think of some of the work of David Hamilton. In Japan, typical example would be photobooks like Kawakami Maiko's Atsui kuni, yume no kuni, umareta kuni or Miyazawa Rie's Santa Fe, both of whom were 17 at the time. Santa Fe, in particular, sold 1.5 million copies when it was published in 1991. If the reform bill banning simple possession were to pass, Diet member and bill proponent Hanashi Yasuhiro has warned that all owners of such books would be expected to dispose of their copies, and negatives should be destroyed as well. Auto da Santa Fe!
As for type 2 child pornography, a recent example is the controversial picture of AKB48 member Kasai Tomomi (21) with her chest covered by the hands of a 14-year old boy, which appeared in Shūkan Young Magazine in January. The boy is touching Kasai's nipples, and the shot of Kasai's superlative breasts is presumably enticing for the average person. This led the Tokyo Metropolitan Police Department to investigate publisher Kodansha on suspicion of distributing child pornography. The issue of Young Magazine in question was sent to the subscribers but never made it to the shelves.
I hope to have convinced you that the Child Pornography Law, as it stands, criminalizes entirely the wrong kind of material. And yet, the proponents of the reform bill, who have constantly been made aware of the shortcomings of the current law, did nothing to fix them, pushing to ban possession and fiction instead while keeping the highly inadequate definition unchanged. Whether they sincerely have the best interests of real children at heart is left as an exercise to the reader.
Think, just for a moment, about the type of material that would be covered if the current definition was simply extended to include anime, manga and game characters. My guess is that, while some erololi manga might survive, all BL, most shoujo and a significant fraction of shounen manga would become instantly illegal.
Good night and good luck.