United States vs. Christopher S. Handley

For my first official post, I give you a heavy-duty one that should be of concern to advocates of free speech and manga fans.

In May 2006, Christopher S. Handley received a shipment of books from Japan which included some yaoi titles. Unknown to Mr. Handley, the Postal Inspector alerted the authorities that the package included material that was objectionable. He was pulled over and agents followed him to his home and seized the entire contents of his collection. According to the Comic Book Legal Defense Fund, "Handley, 38, faces penalties under the PROTECT Act (18 U.S.C. Section 1466A) for allegedly possessing manga that the government claims to be obscene. The government alleges that the material includes drawings that they claim appear to be depictions of minors engaging in sexual conduct. No photographic content is at issue in Handley's case."

Though the trial was set for December and then February, it has now been postponed until sometime in late March.

In the meantime, judges seems to pressing forward that a person owning pictures of children engaged in sexual acts can be prosecuted. See this article from icv2.com (quoted in full below) from December 2008.

"A three judge panel of the 4th Circuit Court of Appeals upheld the conviction of Dwight Whorley on child pornography charges last week, and ruled that there is no necessity that an actual child be involved for a conviction, according to the Associated Press. Whorley had argued in his appeal that the 20 anime he'd received on his work computer, which reportedly depicted young girls being forced to have sex with men, were protected speech; two of the three judges on the panel rejected that argument.

In the majority opinion, Judge Paul V. Niemeyer stated that under the PROTECT Act of 2003, under which Whorley was convicted, 'it is not a required element of any offense under this section that the minor depicted actually exists.'

Whorley is currently serving 20 years in prison; he was convicted of 74 counts of child pornography and obscenity charges, including receiving photos of real children having sex.

Christopher Handley, who did not possess any photos of real children, is currently facing charges under the PROTECT Act for possession of manga (see “Yaoi Titles in Manga Child Porn Case”). That case goes to trial in early January. The Comic Book Legal Defense Fund is assisting in the defense. "

My comment: though Whorley was rightly convicted for possessing photos of real children who have been traumatized and victimized, including drawn pictures of "children" under this statute is highly problematic. For instance, what determines a character's age? There are numerous anime where a child-like figure is older than his or her looks. In fact, this can be seen as a trope of various genres, especially science fiction and fantasy, where the character might not even be human (such as a robot or a god).

But this is besides the point. These are not children, period. No child has been traumatized by these texts, and unless these are actively shared with children which would be child molestation in context, owners should not be prosecuted.

As comic-book writer, Neil Gaiman, says in this article: "He’s been arrested for having some drawings of rude things in manga. I’m sorry, but if you went through my comic collection, you could arrest me if you’re going to start doing that. It’s just wrong." Indeed, I would guess that any manga reader would have something that would fall under these very wide parameters.

I'll keep you posted to any new developments.