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6. What Does Loli Mean?
Loli refers to Japanese anime or manga that is sexually explicit and involves young looking cute girls characters. Loli Anime is an illustration; usually a cartoon, of under age girls engaged in sexual activity. Some kinds of Loli Anime just show minors displayed in a sexualized pose. While the images may not necessarily explicitly state that the people depicted are children, their proportions will be that of a minor and they are often shown dressed in a way that shows they are a minor, like in a school uniform.
The term Loli is thought to come from one of the following origins:
- Lolita – meaning an intentionally seductive girl from the 1955 Vladimir Nabokov novel of the same name.
- Lolicon – a Japanese word used to refer to the attraction to minor girls or associated paraphernalia.
5. Is Lolicon Anime Illegal Under Federal Child Pornography Laws?
The law does not have specific provisions for Loli Anime, so each piece of anime is examined on a case by case basis. Courts will examine each individual piece of Loli Anime to figure out if it violates federal or state child pornography laws. In determining if a piece of Loli Anime is illegal, the law must determine whether the image is a piece of art or obscenity. Much of what we call art today, both old masters and literary classics, depict children taking part in sexual conduct or displayed in a sexual manner. While they are considered obscene by many, their literary and artistic significance protect them. If the Loli Anime is considered obscene, then it is not protected by freedom of speech or other laws that might defend the piece of anime.
Let us examine some of the federal laws that deal with child pornography and how they might be applied to Loli Anime.
The Protect Act 2003
This Act prohibits:
- Making digital or computer-generated visual depictions of a minor engaged in sexual activity that is indistinguishable from reality.
- Promoting, advertising, distributing, presenting, or soliciting obscene visual depictions of a minor engaged in sexual activity in order to persuade the minor to participate in illegal activity.
- The law applies to depictions of any medium, including painting, sculpture, cartoons, or drawings. Regardless of the manner of visual depiction, the Protect Act can be applied.
- The depiction must lack any artistic, scientific, political, or literary value that might make it more valuable than it is harmful.
Title 18 of the US Code
Section 1466A(a)(1) has similar laws against images that depict a minor in a sexual manner. The visual depiction must be both obscene and show the subject to be a minor engaging in sexual conduct. It specifically names the following mediums that the law applies to:
- Paintings
- Sculptures
- Cartoons
- Drawings
So in answer to the question of whether Lolicon is illegal in the US, yes, cartoon depictions of minors in sexual activity are illegal if the law considers it to be obscene. The visual depiction must be reasonably considered obscene by the ordinary person. There must be no serious literary, political, scientific or artistic value to the visual depiction that could provide any value to society and thus redeem it in the eyes of the law.
For loli legal status globally, please visit wikipedia loli article.
4. Are There Defenses For Lolicon Anime in Federal Law?
Yes. The two most common federal laws used to defend against charges for Lolicon Anime are as follows:
Title V Section 502
This law provides the following affirmative defenses:
- The pornography was produced using adults
- No minors were used to produce the pornography
A Title V Section 502 defense proves that a minor was not exploited in creating, distributing, or promoting the Loli Anime, and therefore, no crime was committed. Because Lolicon is an illustration and not a factual depiction, like a video or a photograph, this defense is often successful. If the Loli Anime is created based upon real life sexual contact of a minor, then this defense will not be successful.
Title 18 of the US Code
Under Section 1466A(a)(1), the person producing, distributing or advertising the visual depiction of a child engaging in sexual activity must know that it is a minor depicted. If the defendant was able to prove that they were unaware that it is a minor depicted, this might be a successful defense.
3. Is Lolicon Anime Illegal In California?
California law requires a real person under the age of 18 to be engaging in the sexual conduct depicted, so there is no law that addresses drawings, cartoons, or manga. If there is no real life minor being exploited to create the visual depiction, then California child pornography laws cannot be applied.
A noticeable case is the 2011 People v. Gerber, 196 Cal. App. 4th 368, where the face of a child was superimposed upon the images of an adult woman engaging in sexual activity. The court ruled that Penal Code Section 311.11 requires the minor to be engaged in sexual activity in the images, and therefore it was not applicable to this case. They based this on the wording of Penal Code Section 311.11: “the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.”
Penal Code Section 311.11 also requires:
- The offender knows that the image is of a minor engaging in sexual conduct or simulating sexual conduct. If they are unaware that the subject of the image is a minor, then they cannot be charged under the Penal Code Section 311.11
- That a minor was involved in producing the image.
Therefore, given the above requirements, altered images are considered virtual child pornography, not “real” child pornography in the eyes of California state law. It does not allow people to be convicted for Loli Anime if they are prosecuted under Penal Code Section 311.11.
The possession of digitally altered images where no child was involved in sexual activity, such as in this case, is protected by the 1st Amendment of the Constitution, the right to free speech. The court reversed the charges for child pornography and providing a minor with controlled substances. While the creation and distribution of the image were immoral and damaging to the minor depicted, it is not considered child pornography.
2. Is Lolicon Anime Protected Under the First Amendment Right to Free Speech?
No. The Constitution’s 1st Amendment right to free speech does not protect obscenity. Therefore, if the Lolicon images are determined to be obscene, they are not protected by the First Amendment. The US Department of Justice states, ” Obscenity is not protected under First Amendment rights to free speech, and violations of federal obscenity laws are criminal offenses. The U.S. courts use a three-pronged test, commonly referred to as the Miller test, to determine if given material is obscene. Obscenity is defined as anything that fits the criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written text.”
How to Determine if the Loli Anime Would Be Considered Obscene
The US Supreme Court gave the jury a 3 part test in Miller v. California to determine whether something is considered obscene. All three of the following conditions must be met for the law to consider the material as obscene:
- If the average person, considering the work as a whole, would find it voyeuristic or overtly sexual, taking into account the current views of society.
- If the work depicts sexual activity in a way that the average person would find blatantly offensive.
- If the work has no scientific, political, literary, or artistic value that might make it valuable to society or offset its obscene or offensive nature.
This 3 part test is called the Miller Test, after the Supreme Court case. It remains in use to determine if something is obscene for the purpose of legal cases. It is used in all claims which use the First Amendment right to free speech as a defense to see if the material can be protected by this defense.
1. How to Determine if Lolicon Anime Is Obscene
For a Lolicon image to be considered obscene, it must meet all 3 criteria of the Miller test. If it does, then it is considered obscene and not protected under the First Amendment. The Supreme Court has applied the First Amendment to words in books, films and videos, and images. The law does not discriminate in regards to the medium of the depiction when making a decision.