Original URL: http://www.theregister.co.uk/2009/01/19/evil_cartoon_badness/

Govt uses Obscenity Law to stuff up cartoon sex loophole

We Need To Talk About Lisa

By Jane Fae Ozimek

Posted in Law, 19th January 2009 13:07 GMT

New Parliament, new legislation – and time for the government’s favourite pastime of "closing loopholes". This time it's about even more dangerous pictures, or maybe less dangerous, given that the subject matter is - allegedly - cartoons.

The government last week proposed, via s49 of the Coroners and Justice Bill, to make illegal the possession of "prohibited images of children". This sub-title – as so much else about government legislation in this area – is seriously misleading, since the images to be prohibited will in future be anything but images of children.

The consultation (pdf) that preceded this Bill looked and felt like a retread of the consultation that preceded the soon to be operative Law on possession of "extreme porn". The result also bears a remarkable similarity. Existing law covers and makes criminal the possession of indecent "pseudo-photographs": anything that derives in whole or part from a photo or image of a real child is already subject to the law.

However, police are concerned that some people are getting cleverer at using cgi or cartoons. When the consultation was first mooted, the then Home Secretary John Reid was shown on TV in the company of various Police Officers, expressing disgust at some of the excesses of "manga". The consultation conceded there is no evidence at all that looking at such cartoon imagery leads directly to increased risk of sexual offending, but "there is concern that these images fuel the abuse of real children by reinforcing potential abusers’ inappropriate feelings towards children".

It is further argued that they could be used for the grooming of children. The consultation document also cites a single case in which police raided an individual and found them in possession ONLY of cartoon images and, to their chagrin, had no alternative but to hand the material back and allow its owner to walk free. It is possible that this exemplifies that category mentioned by Lord Hunt in summing up on extreme porn: people whom the police would like to "do something about", but who haven’t actually broken any laws.

The key question is why one should need to do something about such material. That is not to defend it or advocate its possession: rather, it is to highlight concern that the current climate of hysteria over child protection makes it very difficult for our legislators to explore the underlying issues without the risk of having their motives questioned.

The first and most important issue is whether this proposed law will make matters better – or worse. Existing laws on child porn have at their core the very reasonable contention that the mere existence – let alone circulation – of photos of child abuse contribute to the further abuse of a child. When it comes to wholly fictitious imagery, there is no direct harm. If the law is not simply premised on a desire to punish, then it needs to demonstrate either that it contributes to a reduction in longer term harm, or that it will do no worse than the status quo.

The pictures in question may be odious, but do they "reinforce inappropriate feelings" - or do they act as a substitute for abuse? Moreover, if abusers have begun to collect cartoon images as a safer way to satisfy their fantasies, then could this law actually reinvigorate the market for real porn?

The second area for concern is the way in which this proposal further embeds in English Law the idea that possession of various materials should, in and of itself, be an offence. The law follows the model of that on extreme porn, and possibly throws light on some of the thinking that went into that law. Once again, the government have preferred to reject the Obscene Publications Act definition of obscenity, preferring instead the phrase "grossly offensive, disgusting or otherwise of an obscene character". Pictures will need to be produced "for sexual purposes".

They were also clear, at the consultation stage, that imagery covered by this new offence is intended to sit, in terms of seriousness, above the level already covered by "indecency", but – according to the proposed penalties – below that covered by Obscene Publishing.

It is not clear whether this is because the OPA definition is too subjective or, as government lawyers have argued, because it would not make sense to apply the "deprave and corrupt" test to an individual who is self-evidently already thoroughly depraved.

The proposal omits any minimum standard of realism, almost certainly out of necessity: if we are to pass such legislation, we should seek to avoid interminable courtroom arguments about how real something appears. An image will therefore be treated as an image of a child where "the impression conveyed by the image is that the person shown is a child". We may have laughed when an Australian was convicted and fined for making indecent pictures of the Simpsons, but the same could soon be happening here.

The government have also come up with a definitive answer to the question of "how can one tell?". This Bill will cover images where "the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child".

That could be bad news for inhabitants of some of the seedier reaches of Sadville, in which, despite policy warning against taking child avatars into "mature" play areas, it remains possible to have poseball sex with players who share several characteristics with children (or even cats, puppies or horses).

Ultimately, this is not trivial either as issue or proposal. The government recognised as much at the consultation stage, acknowledging that the criminalisation of wholly fictitious material was a serious step. Whether you are for or against this proposal, it deserves serious debate. ®