Ask John: Is Lolicon Still Legal In America Now?

Question:
Can you provide an update to your “Is lolicon still legal in America?” article with information pertaining to the law passed today, July 27, 2006, pertaining to sex offenders? There’s been quite a scare at the imageboard 4chan.org that the site might be shut down due to the new law.

Answer:
I’m afraid that this discussion will be far more legal interpretation and speculation than information about anime, but I think it’s still justified since this may impact anime, and it has already created a lot of debate, discussion, and wild hysteria in the anime fan community. I feel compelled to announce that I have no formal experience with law, nor do I know precisely how laws are judiciously interpreted. I simply have good reading comprehension skills, and some training in logical debate, along with some knowledge generated by research for this article.

On Thursday, July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 officially became law. Among the seven sections of the law, sections one through four and six deal with convicted child abusers and social requirements for treating and tracking convicted sex offenders. Title seven outlaws maliciously misleading websites and raises the restitution available to victims of sexual abuse. Title five seems to be the only section of the law that could possibly be applicable to the distribution of imported Japanese art in America. Title five does not attempt to alter the existing American legal definition of child pornography established by US Code 18 Section 2256, which states that graphic child pornography must depict a real person or an image indistinguishable from a real human being. By that token, the 2006 Adam Walsh Law should not, and does not, apply to typical Japanese lolicon art. The only exception could be extremely lifelike CG rendered graphics.

For the sake of argument, title five of the law does not modify Code 18 Section 2256. It modifies Section 2257. Section 502 of the Adam Walsh law requires that anyone who produces any visual depiction of actual sexual conduct must maintain records of every participating performer’s date of birth and proof of identity. Directions explaining where these records may be accessed by the public must be included on every copy of a media and every page of a website containing sexual images. Theoretically this statue cannot possibly apply to lolicon art because fictional drawings don’t have birth certificates and cannot engage in sexual or any physical conduct. Logically section 502 applies only to actual living people. Section 502 does not prohibit people from looking at sexual images, nor does it prohibit websites from hosting sexual images. The law only requires that artists, painters, sculptors, film makers, photographers, and other visual artists who create depictions of sexual activity keep records of their model/actor/participant birth dates.

The section 2257A created by the Adam Walsh law covers “simulated sexual conduct.” 2257A extends the protections and requirements of section 2257 to apply to not only actual sex, but also simulated sex. This broadening of the 2257 law may be designed to prevent child abusers from circumventing the law by “pretending” to have sex with children, which formerly would not have been technically illegal. Section 2257A also requires any visual media containing depictions of sexuality to be labeled with the address of where the birth records of the depicted participants may be found. Theoretically this requirement cannot apply to fictional art because fictional characters don’t have birth certificates or legal status as people. Furthermore, visual depictions of sexuality produced under the regulation of the FCC, and art that contains sexuality which is not “produced, marketed or made available” in such as way that would make “an ordinary person” believe that the art is child pornography is not illegal. In other words, art containing sex, which is obviously still art, is not illegal.

I cannot find any language in the 2006 Adam Walsh law that clearly an unequivocally prohibits viewing, importing, or distributing obviously fictitious art that does not use real human beings as models. Furthermore, the 2006 Adam Walsh law seems to have no provisions to prohibit average, consenting citizens from viewing such material, and no prohibitions against websites hosting sexually explicit images. The law only requires that websites hosting images of real people or images indistinguishable from real people provide information on where to find the model’s age statements. Most, or arguably all, Japanese anime and manga art does not fall within this classification. Imported Japanese lolicon art does not contravene the American legal definition of child pornography established by US Code 18, section 2256, point 8, therefore making it legal (although local municipalities may interpret the law to their individual preference). The 2006 Adam Walsh Law does not seem to change that legal status.