Experts to United Nations: hentai ban would be a mistake
A United Nations committee is circulating a draft document that could bring in a global ban on the sexual depiction of minors in drawings and cartoons, including lolicon and shotacon hentai — a Japanese comic book artform — and it has human rights experts worried.
No politician wants to be seen as being weak against child sexual abuse. But unfortunately the extent of what most voters know about child sexual abuse prevention is based on a series of popular myths. For example, the myth of stranger danger (95% of child sexual abuse is committed by those known to the child), the myth that everyone who abuses a child has pedophilia (73% of child abusers don’t), and the myth that the premature “sexualization” of minors can be attributed to their portrayal in art and in the media (it’s more complicated).
Understandably, confronting voters with the falsity of these beliefs is not a winning proposition for any politician seeking to remain in office. So they tend to focus on a child sexual abuse straw man, through popular measures like increased censorship, attacks on sex workers’ rights, and ever-harsher penalties for those who have already offended. It’s no surprise that such initiatives fail to work.
The proposal for United Nations controls on how minors can be depicted in cartoon art falls into the same category; it’s a popular measure that seems like it might protect children, but could actually do the opposite, while infringing the rights of innocent people such as artists, fans, and Internet users. But before explaining why, a bit of background on where this proposal has come from.
Who is behind the proposed ban?
The United Nations body behind the proposal, the Committee on the Rights of the Child, is composed of 18 expert members elected by the world’s governments in rotation. It does not directly make what is called “hard” international law, such as treaties or conventions. Those are made directly by governments; and an example is the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. This Optional Protocol is the international agreement that prohibits child pornography, which it defines as follows:
Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
The Optional Protocol itself is not new; it has been in place since 2000, and has been signed and ratified by 175 countries. What the Committee is now circulating for comment is a set of implementation guidelines for countries to follow to enact and enforce the Optional Protocol as part of their local law. Although these guidelines will be non-binding, they will still be influential — a kind of “soft law” that many countries will still be inclined to follow.
Facilitating the development of the Committee’s guidelines is a large global child protection network called ECPAT, that we have criticized for its support of the anti-sex worker law FOSTA/SESTA, and for sex-negative elements in its Luxembourg Guidelines that seek to modernize the terminology used to describe child sexual abuse. ECPAT — a private, non-governmental organization — has now succeeded in exporting relevant parts of its Luxembourg Guidelines into a form that is one step closer to being international law. And that’s a concern.
What does the ban cover?
The Implementation Guidelines cover a wide range of topics apart from the censorship of drawn images, and they certainly aren’t all bad. For example, they contain positive text about the need to “ensure that all persons, especially those caring for children, have an adequate knowledge of the different forms of sexual exploitation and abuse,” and suggesting that countries “carry out studies to analyse and assess the nature, extent, root causes and consequences on children” of child sexual abuse, with a view to preventing offending. We fully support these parts of the document, and will be making this clear in our submission.
But where it goes off the rails is in attempting to extend the definition of “child pornography” in the Optional Protocol to include drawings. Citing ECPAT’s Luxembourg Guidelines, the Committee asserts in its draft that the definition of child pornography implicitly includes:
visual material such as photographs, movies, drawings and cartoons; audio representations; any digital media representation; live performances; written materials in print or online; and physical objects such as sculptures, toys, or ornaments.
It further asserts that this should be the case because “such depictions contribute to normalising the sexualisation of children and fuels the demand of child sexual abuse material.” But no evidence is presented to support these assertions; on the contrary, they are based on sex-negative false assumptions about the link between art and child sexual abuse. Much art that depicts minors in an apparently sexual context is not produced by or for pedophiles, and there is no evidence of such art being linked to real-life child abuse.
In fact, experts even consider that the availability of fantasy representations such as cartoons and dolls may reduce real-life child abuse, by providing a victimless outlet for those who do find themselves thinking about of sex with minors. It’s a controversial idea, and a disturbing one for many people to think about. But if it has any chance of being correct, we think that it deserves to be the subject of research, rather than supposition. We are raising funds for just this sort of research.
What should we do instead?
In the meantime, let’s focus our attention back on the real children that we know are being harmed, rather than the fantasy children who can’t be. While platforms such as Reddit and Discord are banning cartoons, real images of child sexual abuse can easily be accessed using major search engines such as Yandex, Bing, and DuckDuckGo. Until this much bigger problem is solved, banning cartoons is a distraction.
The United States Supreme Court has defined child pornography to include only representations of real children (or representations that are indistinguishable from real), because the circulation of such images directly contributes to a child’s abuse. It’s the right standard for us to hold to. Allowing governments — and still less the largely unaccountable United Nations — to narrow the boundaries of acceptable art won’t help children, but it will open the door to further censorship of legitimate speech.
So we’re asking you to stand up and support us in telling the United Nations to reject the expansion of international law to include a ban on cartoons. You can make a submission yourself by emailing the Committee at crc@ohchr.org before its deadline, March 31. Or you can let us know what you’d like us to include in our submission, by adding your suggestions into the comments section below.
Disclosure: the author is a member of the Multistakeholder Advisory Group of United Nations Internet Governance Forum
