In a landmark case, a court in Japan has ruled that computerized images violate the country’s child pornography laws. The Tokyo District Court charged that 55-year-old Akashi Takahashi broke a federal ban on child porn, passed in Japan in 2014, when the artist used 31 photos of an identifiable girl to create naked images. Though the law makes an exception for explicit manga and anime, because the actual girl was recognizable in these images, as newspaper The Asahi Shimbun reports, Takahashi was sentenced to a year in prison.
This marks Japan’s first entry into the gray area of many child pornography laws: Are altered or fictionalized images illegal? The ruling brings the country a step closer in line with the United States, where if virtual images are realistic enough that a minor can be identified, then they’re illegal. If the virtual images don’t contain real minors — or if there’s artistic merit to depictions of sex between minors, as in American Beauty, which the Supreme Court likes to reference — U.S. courts generally rule in favor of First Amendment rights over child porn.
Per the Department of Justice’s website:
Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law. Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor.
What does this mean for virtual reality depictions of children engaging in sexual acts? There’s no reason to suggest that, though the visual medium might change, the law will treat VR differently. Consider what happened with the rise of the internet: To hear the Department of Justice tell it, by the ‘80s child porn was nearly eradicated. But the internet was a shock to the system. Not because the nature of child pornography had been altered — it was still obscene, still devastating — but because the distribution methods became hydra-like in its difficulty to defeat. Though VR could show unspeakable acts in horrific detail, it will fundamentally remain the same — just as illegal — as a vehicle for distribution and consumption.
But what becomes slightly murkier is if the depictions consist of purely fabricated children. Under the 2003 Protect Act, if a sexually explicit depiction of minor “lacks serious literary, artistic, political, or scientific value,” it’s obscene and illegal. This includes drawings, cartoons, sculptures, and paintings. Using fake depictions of children in sexual scenarios to psychiatrically evaluate child abusers, which Canadian researchers have done in VR, would likely be legal if attempted in the United States. But if there’s no artistic merit, expect obscene VR to feel the full brunt of the law.
In the United States, a manga collector was jailed for half a year for his comics that depicted child sex and bestiality, not under child pornography laws, but under the PROTECT Act. If VR heightens the visual experience — and it does — the fabricated obscene still won’t be child pornography as outlined above, but it will be likely to land you in jail.