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The United Nation’s Committee on the Rights of the Child have published comments received from various nations on its “Optional Protocol to the Convention on the Rights of the Child” draft law they announced back in February.
The law came under scrutiny from some nations. While the law would be used to enforce the restriction child prostitution and media depicting sexually exploited children, they feared its terminology around the latter would be too vague.
This could result in the prosecuting of individuals not engaged in creating or viewing such material (i.e. child characters not in sexually explicit activity, or characters in sexually explicit activity that were not children).
The UN posted various responses to their proposal from various nations and organizations. The United States, Japan and Austria all laid out issues they had with the proposed law. The United States (in summary) stated they wished their own local laws to take precedent over the UN’s proposed laws:
“Paragraph 62: “… urges States parties to prohibit, by law, child sexual abuse material in any form …. including when such material represents realistic representations of non-existing children.”In the United States, federal law provides that it is illegal to create, possess, or distribute a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that depicts a minor engaging in sexually explicit conduct and is obscene. However, visual depictions (CGI, anime, etc.) where there is not a “real” child are typically protected by the First Amendment (unless the visual depictions are obscene) and the United States’ obligations under the ICCPR. We suggest editing the paragraph as follows: “… urges States parties to prohibit, by law, consistent with their national legal systems, child sexual abuse material in any form …. including when such material represents realistic representations of non-existing children.”
(Editor’s Note: Readers should be aware the URLs to the statements from all other nations and groups, with the exception of Prostasia, from this point on request to download .docx file to your computer.)
Japan also stated similar concerns, stating removing audio and written material from the law, as well as clarification on whether an allegedly offending piece of media is depicting a child.
“14. Japan believes that restriction on freedom of expression should be kept to a minimum and that highly careful consideration needs to be given to the scope of child pornography. In light of this, considering that ‘pornography’ is traditionally referred to as visually recognizable objects, whether it includes audio representations or written materials needs to be carefully considered. Japan thus proposes deleting “audio representations;” and “written materials in print or online;” from the third sentence of paragraph 61.
In addition, for the reasons explained above, whether penal sanctions should be imposed even if the case involves pornography of a non-existing child needs to be carefully considered. Japan proposes adding “as far as it represents an existing child” at the end of paragraph 61. […]”
Finally, Austria also expressed its concerns, stating that EU law already had a definition that they felt were more accurate.
“According to the Committee’s proposal drawings and cartoons can be regarded as child pornography in the sense of Article 2 letter c of the OPSC. In this context, we would like to point out that the definition of child pornography in the more recent EU Directive 2011/93/EU comprises
1. depictions of a real child (Article 2 letter c (i) and (ii)
1. depictions of any person appearing to be a child (Article 2 letter c (iii)
2. realistic images of a child (Article 2 letter c (iv).
“As far as drawings and cartoons do not contain realistic images, we do not see the necessity to treat them as child pornography.” “
Groups also expressed their concerns about the proposed law. The Japan Society For Studies in Cartoons and Comics (JSSCC) expressed concern that the context of a piece of media would not matter under the law:
First of all, we would like to stress that we sincerely respect and support the UN’s efforts to protect real children from abuse and sexual exploitation.
However, the latest UN Committee on the Rights of the Child’s draft guidelines seem to state that all fictional representation including through drawings and/or written prose should be subject to regulation and prohibited by law.
We argue that there would be many cases where, as stated in paragraph 64 of the draft, “it may be complicated to establish with certainty if a representation is intended or used for “primarily sexual purposes.”” This difficulty in establishing this point could cause confusion. In fact, in Japan, there were cases in which the 1999 Act of Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children brought about confusion in both the market and society. Soon after the law was enacted, manga such as Vagabond and Berserk, works which have received high praise for their artistry within Japan and abroad, were withdrawn from stores for the sole reason, without any regard to the context, that they depict sexual acts involving minors. This withdrawal, however, was later revoked.
These cases demonstrates that the line between whether one sees something as “intended or used for “primarily sexual purposes”” or not is very subjective.
Therefore, JSSCC is deeply concerned that the proposed guidelines lack clarity in terms of the scope of the regulation, and that what should be subject to the regulation may be decided arbitrarily, resulting in the suppression of some works unnecessary.
In the example above, Berserk features a character who was sexually abused as a child. While not intended to be for primarily sexual purposes, the JSSCC argues the proposed law as it stands would be banned under the new law- despite it not being intended to do so.
Similar comments expressing the definitions were too broad were also expressed by Prostasia, Teenagers Group Against the Prohibition of Comics Animation and Games and the Center for Japanese Language and Culture. They also expressed disagreement that such offending material- correctly identified or otherwise- would encourage real life abuses.
Other nations and groups did not express disagreement with the proposed definitions.
How do you feel about the entire debate? Should the UN be trying to implement their own restrictions on fiction? Sound off in the comments below!