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    Issue 4 Excerpt: Sex In Comics? Laws Say Give It Arrest

    criminalizingcomics.jpg

    SEX IN COMICS? LAWS SAY GIVE IT ARREST
    According to several state and federal laws, selling — or even owning – certain comics may now be a crime
    By Laura Hudson

    It was a very good year for First Amendment rights in comics, featuring one of the greatest triumphs ever for the nonprofit Comic Book Legal Defense Fund, when in the midst of April’s New York Comic Con, obscenity charges against Georgia retailer Gordon Lee were finally dropped after three and a half years of protracted legal battling and more than $100,000 in legal fees.

    Lee had been accused of distributing indecent material to a child after a boy visiting his store in 2003 accidentally received a free comic containing an excerpt from The Salon, an Ignatz Award-nominated work that contained a nude image of Pablo Picasso.

    But while the Lee case marked an important victory, the fight for First Amendment rights in comics is hardly over. Even now legal battles are under way in response to federal and state laws that could threaten the rights of both retailers and readers of comics and manga.

    THE OREGON TRIAL

    Two Oregon laws passed in 2007 to restrict the sale of sexually explicit materials to minors have been challenged by a coalition of retailers, librarians, publishers and First Amendment advocates — including the Comic Book Legal Defense Fund and Oregon-based Dark Horse Comics — who say that the law restricts access to constitutionally protected material, including comics.

    Although the laws were intended to target sexual predators giving sexually explicit material to children, the ambiguity of the wording does not specify any intent to harm. As a result, the laws could be used to prosecute booksellers who sell books, comics or graphic novels with sexual content to people under the age of 13, or in other cases, under 18 years of age.

    The first law, OR 167.0574, criminalizes the giving or selling of “sexually explicit material” — which could potentially include everything from Watchmen to Judy Blume novels — to children under the age of 13. Violators can be punished by up to a year in prison, or a $6,250 fine. Selling the same material to a 13-year-old would be permitted, though no mention is made of how booksellers and comic shop are meant to distinguish between 12 and 13-year-olds.

    The second law, OR 167.057, criminalizes giving or selling material with visual or verbal depictions of sexual conduct to anyone under 18, “for the purpose of arousing or satisfying the sexual desires.” Putting aside the fact that it can often be difficult to determine a customer’s exact sexual agenda at the time of purchase, the law could be used to prosecute the sale of any “satisfying” material — including the sale of nearly any yaoi manga title, for example — to a 17-year-old as “luring a minor,” a felony that can mean up to five years in prison and $125,000 in fines.

    The laws would also require bookstore and comic-shop retailers to make a determination about the often subjective sexual content for every single item they stock, which could pose a significant burden for stores that often carry thousands of titles.

    “It doesn’t fit any national standard,” says Charles Brownstein, executive director of the Comic Book Legal Defense Fund. “There’s a lower degree of protection than the constitution provides, and that’s fairly dangerous.”

    Attorney P.K. Runkles-Pearson, who is representing the coalition of various plaintiffs in the case with both laws, says the material is constitutionally protected, and that while the plaintiffs “do not contest the importance of protecting minors from harm … [the statute] cannot sweep over the protections of the First, Fifth and Fourteenth Amendments to do so.”

    Runkles-Pearson cites manga classics such as Kazuo Koike’s Lady Snowblood and Kentaro Miura’s long-running Berserk as titles that could spur criminal charges if sold in violation of the laws.

    She adds, “In the process of reading these materials for the case, I’ve come to really appreciate” graphic novels. A work that particularly impresses her is Charles Burns’ Black Hole, the distribution of which could now result in prosecution.

    An injunction has been sought to halt enforcement of the laws, which are currently in effect, and oral arguments were scheduled to begin Oct. 3.

    F*#K OBSCENITY
    Another case with potential consequences for comics involves Iowa resident Christopher Handley, who is being prosecuted by the federal government not for distributing sexually explicit comics material, but rather for owning it.

    Handley is charged with receiving “obscene visual representations of the sexual abuse of children” for importing what is known as lolicon manga from Japan. Derived from the term “Lolita complex,” lolicon is a genre of manga that features young girls drawn in sexual situations.

    Although the Supreme Court ruled in 2002 that the prohibition of “virtual” child pornography under the Child Pornography Prevention Act of 1996 was unconstitutional, as it prohibited “speech that records no crime and creates no victims by its production,” the PROTECT Act of 2003, which was intended to prevent the abuse of children, says something very different.

    Its prohibitions against child pornography state that “it is not a required element of any offense under this section that the minor depicted actually exist,” extending to drawings, sculptures, computer-generated pictures or any other type of image that portrays sex with a person under 18 and is deemed obscene.

    The law has a mandatory minimum sentence of five years in prison, according to Mike Bladel of the U.S. Attorney’s Office of Southern Iowa, which is prosecuting the case.

    And it could potentially apply to any individual in possession of yaoi or shotacon manga, for example, “if the depictions appeared to be of anyone underage,” says lead defense attorney Eric Chase.

    The definition of who does and does not “appear to be” 18 can also be more complicated in the case of manga, where artistic conventions often dictate that characters appear more childlike than their age might indicate.

    “Technically it’s an obscenity statute, but the punishments are cross-referenced with child pornography. They’re punished the same way as if it were [pictures of] real children,” Chase says. “If this is permitted, it could easily move into other genres. The implications are very far-reaching.”

    The case is slated for trial in October in the U.S. District Court for the Southern District of Iowa.

    Posted by Tim Leong on October 12th, 2008 filed in Blog, In this Issue |

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