Criminalizing Cartoons: How the Law Is Dealing with Anime Child Pornography in Canada

There is a huge disparity between how Canada and Japan are treating anime child porn.

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Jul 2 2015, 8:59pm

Frankly, lots of anime is already plenty disturbing without involving sexualized children. Photos by the author

Last year, police executed a search warrant at 70-year-old Roy Franklyn Newcombe's house in Halifax, Nova Scotia. A swath of hard drives and electronic devices containing a vast collection of child pornography were seized.

Investigators then discovered something bizarre and disturbing: the majority of children depicted in the videos and images in Newcombe's possession weren't human children at all. They were cartoon characters—Japanese-style anime renderings of children engaged in sexual intercourse.

Newcombe's case highlights what could be a criminal trend across Canada: the emergence of cartoon—specifically anime—child pornography.

In a recent report funded by the Ontario Mental Health Association and Ontario Ministry of Health that examined 301 separate child porn cases throughout the province between 1993 and 2006, it was discovered that 32 percent of these offenders had in their possession, some form of anime or cartoon kiddie porn.

Internet Child Exploitation (ICE) units in police departments from Vancouver to Regina on to the Maritimes, as well as prosecutors and forensic experts across the country, all confirmed that they've encountered cases involving anime child pornography in recent years.

"Numerous [court] decisions across Canada have accepted that child pornography can include cartoon or animated representations," said Halifax Regional Police Sergeant Pierre Bourdages, who admitted that his department has encountered several cases over the years that have dealt with anime child porn.

"Many of these cases acknowledge that the images do not depict 'live victims,' but recognize that they do still visually portray sexual abuse of a child," Bourdages added.

What is happening to this young woman?!

Police in Western Canada are acquainted with cartoon and anime child pornography, too.

"VPD used to get some of this material forwarded from Canada Post when the main Post Office was located in Vancouver," said Constable Brian Montague of the Vancouver Police Department.

"It was obviously intercepted by postal inspectors as it travelled through Vancouver, often headed to other cities."

Newcombe's case in Halifax also highlights an unusual disparity between Canadian and Japanese laws on simulated child porn.

Japan just outlawed child pornography altogether in 2014, but the new law excludes anime child porn, which is a popular sub niche of its own there. Dubbed "lolicon," this brand of anime is known to depict mostly girls, in the adolescent age range. It's widely available in adult entertainment stores around Japan and is likely similar to what Canadian police are discovering here.

"You can buy it on the newsstands over there—it's not considered a cultural taboo," said Craig Botterill, a recently retired crown attorney in Halifax, who has led the prosecution of hundreds of cases in child pornography in the last decade.

In that time, Botterill said he has been aware of about 10 similar cases—about one a year—in Nova Scotia that specifically involved anime child porn.

"I've had quite a few cases here where the border services agency or Canada Post inspectors intercept this stuff coming in the mail to university students who are here from Japan."

Botterill said that in his experience, the Crown has been typically more lenient with Japanese adults caught with cartoon child pornography in Canada because of the discrepancy in laws between our two countries. He said some might not even be aware it's illegal in Canada.

"We usually give them a break," he said, despite the Crown not having any specific or articulated policy on this. "When it's Japanese people, we just take it away from them and tell them not to do it anymore," he said. "But when it's locals that are collecting it, that's kind of creepy and we charge them," he added.

Section 163.1 of the Canadian Criminal Code casts a wide legal net in its definition of child pornography: "A photographic, film, video or other visual representation...that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity."

Botterill explained that just because the children depicted in animated kiddie porn aren't real humans, doesn't make accessing such material a victimless crime. He thinks cartoon child porn poses a "very real social harm."

"[It could] cause pedophiles to act on the same impulses and triggers as actual images of children," said Botterill."

"These types of images are used to satiate the lusts of pedophiles and they encourage them to go out and commit hands-on offences against children. If you want to protect children, you need to take these images out of the hands of people. It really doesn't matter if it's a cartoon rendering or a picture of an actual child—the use of these images harms children."

There, is unfortunately, little or no hard scientific or medical evidence to wholly support—or dispute—this.

"We don't know what the impact of what virtual pornography—not depicting real children—is," said Dr. Michael Seto, a forensic psychologist and director of the Forensic Research Unit at Royal Ottawa's Health Care Group, who has been aware of anime child porn since the early 2000s when he began researching online sexual offending.

Seto co-authored the recent Ontario Mental Health Association-funded report alongside Ontario Provincial Police behavioral scientist Dr. Angele Eke, that found nearly one-third of people in the possession of child porn, had some form of anime or cartoon material, too.

"For some individuals, it might be a gateway to pornography that depicts real children, or to sexual contact offenses," he added.

Yet Seto has mixed feelings about Canada's law regarding cartoon or animated child pornography—he thinks that the law should distinguish between animated and the real thing. Perhaps, he explained, cartoon child porn could be an escape valve for potential pedophiles.

"Having access to virtual content might be a safer outlet for some people with pedophilia. It would be better than accessing pornography depicting real children or committing sexual contact offenses."

The age(s) of children depicted is the basis for sentencing individuals possessing child porn in Canada. ICE investigators assign specific age ranges to children portrayed in material found in an offender's possession; this in turn determines severity of charges. Possessing pornographic material depicting pre-pubescent children, for example, is punished more severely than if children appear to be adolescents or closer to 18.

In Saskatchewan, staff sergeant Ron Weir of Regina Police Service's ICE unit said that cartoon child porn severely complicates this age-range based approach.

"Animated child porn is very difficult to prosecute because how can we say if the animated figures in the cartoons are under 18?" he said.

Newcombe, the Nova Scotian caught with child pornography that was predominantly animated, had several hundred videos in his possession that investigators were forced to categorize as "age difficult." It is unclear whether the cartoon renderings in Newcombe's possession were of girls or boys.

He was recently convicted on one count of possessing child pornography and is currently serving a 90-day jail sentence, limited to weekend terms. If Newcombe had been accessing child pornography depicting predominantly real human children, his punishment might have been harsher.

"Those are the ones where they always give the guy a break because how do you know how old the person in the images were?" added Botterill, who oversaw Newcombe's case in its initial stages before retiring last summer.

Botterill sardonically agreed that ascertaining the age of animated children who appear in pornographic cartoons is impossible.

"How old is Pokémon, right?"

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