Criminalizing art and fiction is a bridge too far for the United Nations

In February 2019 the United Nations Committee on the Rights of the Child released a draft set of Guidelines for the implementation of an existing international treaty on child protection called the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. These Guidelines included a radical reinterpretation of the international legal definition of “child pornography,” that would expand it to include not only photographs and movies, but also “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.” In other words, criminalizing art and fiction.

This move not only violates the freedom of expression that is guaranteed in international law, but also stigmatizes millions of innocent people around the world, painting them as being tantamount to child abusers. Responding to this threat, thousands of free speech advocates and fans from around the world rapidly signed our petition against the proposal, while others sent in their own independent submissions to the Committee.

The Committee’s consultation closed at the end of March, and this week, it finally published the submissions that it had received—or at least, it published some of them. Unfortunately Prostasia Foundation’s own submission was unaccountably omitted from those listed on the Committee website, although the petition that we organized, which is a separate document that was sent later, is included. We have contacted the Committee urgently expressing our concern at the omission of our main submission, and seeking that this be rectified. (Update April 30: our submission has now been published.)

Thankfully, many of the other submissions from national governments, research institutions, and nonprofit organizations express some of the same concerns that our submission raised—and some of them raise additional points of concern.

Art is not child sexual abuse material

The core point for the Committee to comprehend is captured well in a submission from a group of nine fans calling themselves the Teenagers Group Against the Prohibition of Comics, Animation and Games. Since the Guidelines themselves affirm that governments should “include child participation in the drafting process of legislative and policy measures,” the opinions of these young fans must be given due weight. In a well-researched paper that refers to legal cases and research from around the world, the Teenagers conclude:

that depiction of fictional child pornography is not the reason for sexual abuse of children. Prohibiting depictions of fictional children in explicit sexual activities will have no effect on the actual protection of children.

In its submission, the Comic Book Legal Defense Fund (CBLDF) argues that the Committee’s conflation of fiction and art with real child sexual abuse reflects a misunderstanding of the relationship between the two:

Expressive content is not reality. Expressive content has always explored taboos related to sexuality, violence, and criminal behavior. The recent history of expressive content has seen cycles of moral panic related to media effects arguments similar to those used by this committee. Historically, it has been shown that media effects arguments are dubious.

Therefore, the CBLDF continues, banning fictional depictions of children will not help protect real children but may in fact do the opposite:

In practice, this broad prohibition of expressive content will serve to divert law enforcement resources from protecting actual victims, and towards punishing thought crimes.

A similar argument is made by the Association for Freedom of Entertainment Expression (AFEE), whose submission throws the spotlight on faith-based groups who are promoting bans of fictional sexual content, while still embroiled in very real sexual abuse scandals of their own:

We believe that our common goal is not to reflect specific religious beliefs or conservative morality but to prevent child abuse. Moreover, while specific religious beliefs or conservative morality declare themselves to be against sexual materials, we request that special attention be paid to the fact that those who hold such beliefs also commit sexual offenses against children.

Legitimate content would be banned

Several respondents gave examples of clearly legitimate content that would be endangered by the extension of the definition of child pornography to include art and literature. The painting “Puberty” by Edvard Munch, illustrated here, is an example referred to by the AFEE. The Comic Book Legal Defense Fund provides other examples:

Young adult fiction routinely addresses sexuality because it is a topic of immediate concern to young adult audiences. Memoirs by abuse survivors will often depict and describe the graphic details of abuse as an aspect of the healing process. Mainstream works of art and photography exist in a continuum of art history where the nude, including nude images of minors, are examined, depicted, and described. All of these legitimate areas of inquiry are endangered by the calls for government censorship contained in these Draft Guidelines, and the subsequent chilling effects of self-censorship that will result if laws are adopted as suggested.

Several respondents made specific reference to how the depictions of minors and sexuality in Japanese culture differs from its depiction in other cultures, and that we should not jump to the conclusion that these depictions are exploitative and harmful. The Japan Society for Studies in Cartoons and Comics (JSSCC) gives a specific example:

Let us take for example the manga Kaze to Ki no Uta [The Poem of Wind and Trees] on of the most important works of Keiko Takemiya, the current head of JSSCC and a manga artist who has been awarded with the Medal of Honor with Purple Ribbon from the Japanese government in recognition of excellence in her field. Widely recognized as a masterpiece Kaze to Ki no Uta directly depicts sexual violence against boys as well as the sexual urges of the boys themselves. The proposed guidelines, however, may end up making this masterwork illegal.

The Teenagers Group points out:

The art style prevalent in Japanese comics and animation includes short proportioned persons with enlarged eyes. There are many cases in which the depictions of adults have been determined as children. For example, this is especially the case of artwork of cartoonists Osamu Tezuka, Fujio Fujiko and Akira Toriyama, who are famous both in Japan and abroad. Through a prohibition by law, persons utilizing Japanese animation and comics as their means of artistic expression will be limited in their craft, and will be required to implement self-censorship.

Importantly, these concerns aren’t just coming from a fringe group of manga fans. Tomohiro Yamada from the Center for Japanese Language and Culture at Osaka University points out that:

there does not seem to be enough evidence to relate interests [in] drawings of (fictional) children in cartoons and games such as Japanese “Moe” pictures to pedophilic interests [in] living children.

Even the national delegation from Japan also pushed back against the Committee’s proposal:

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.

Japan’s submission also recommended confining the penalties for child pornography offences to representations of existing children, not fictional ones. And Japan wasn’t the only country to express concerns. Austria also wrote in its submission, “As far as drawings and cartoons do not contain realistic images, we do not see the necessity to treat them as child pornography.”

Overstepping the mark

In a slap in the face to the Committee, several respondents suggested that it had overstepped its authority in suggesting a new interpretation of the Optional Protocol at all. Japan stressed “that the Guidelines represent the Committee’s view on interpretation of the OPSC, and that they do not change or revise the provisions of the OPSC and that they are not legally binding to the States parties.”

The Council of Europe went further, pointing out in strong but diplomatic language that the Committee had no authority to tell states how the Guidelines should be interpreted:

Clearly, it is not for the Children’s Rights Division of the Council of Europe to say how and by which means the interpretation of the OPSC should be developed. It is however legitimate to wonder whether “guidelines” meant to support State Parties in the implementation of the OPSC are a suitable tool in this regard.

The Holy See was even less circumspect in its criticism:

[I]t is not within the mandate of the Committee to provide a new interpretation of the OPSC. Although there might be, within reason, some margin of appreciation when applying the provisions of the OPSC in light of new circumstances, such as the development of ICTs, from a legal point of view only a Conference of State parties may amend the terms of the Protocol and those amendments are binding only upon those States which expressly accept them (OPSC art. 16). Thus, any attempt at changing the extent or content of the State Parties’ obligations without their consent would deny the value of their ratification, thereby entitling those States to withdraw from the treaty (cfr. VCLT art. 61.1). Such an outcome should be avoided.

Religious influences on the Committee

As mentioned above, the Association for Freedom of Entertainment Expression had expressed concern that the Guidlines had been driven by religious interests. Based on several of the submissions to the Committee from church-linked groups, this concern seems warranted.

For example, ADF International, which identifies as a “faith-based legal advocacy organization,” openly opposes the Committee’s recognition of differently gendered children, arguing for the elimination of references to “girls, boys and children of other gender/sex identities.” It argues:

that neither the Convention on the Rights of the Child (CRC), nor any other provision of legally binding international human rights instruments identifies gender/sex identities as recognized categories of international law, and calls upon the Committee to refrain from introducing concepts that do not enjoy international consensus.

The Holy See makes similar remarks, implying (incorrectly) that sexuality is a choice:

Neither the CRC nor the OPSC require State parties to adopt a “gender perspective” nor allow for the introduction of concepts based on subjective lifestyle choices and attractions.

And far-right anti-LGBT Polish think-tank Ordo Iuris Institute for Legal Culture, which has made homophobic attacks equating LGBTQ+ identity with pedophilia, recommends that the Committee condemn surrogacy—even non-commercial or “altruistic” surrogacy—as a form of “sale of children.” The ADF makes the same point in its own submission. Since surrogacy is one of the paths to parenthood for same-sex couples, this too amounts to a moralistic attack on the LGBTQ+ community.

Other paragraphs of concern

Although the paragraphs of the Guidelines that received the most attention overall were those that seeking to expand the definition of child pornography, we criticized several other paragraphs of the Guidelines in our submission. For example, we suggested that the Committee temper its enthusiasm for registries of those who have committed sexual crimes, as a method to safeguard children against abuse. ECPAT Sweden echoes these comments:

ECPAT Sweden advises against arbitrary infringement of human rights when there is no evidence-based research that measures such as sex offender registers, exchange of information, and travel restrictions, will have a positive outcome for the rights of the child.

Another paragraph of the Guidelines highlighted by Prostasia, that Japan also expressed concern about, was the suggestion that the requirement of “double criminality” to convict someone of an offense covered by the the Optional Protocol should be abolished—in other words, that it should no longer be necessary for an act to be criminal both in the country where it took place, and in the country where they are charged.

By abolishing this requirement, it could mean that a Japanese person who purchases a comic book that is legal in Japan but illegal in the United Kingdom could be arrested if they ever travel to the United Kingdom. As Japan points out in its submission, there is no way of “reinterpreting” the Optional Protocol that could possibly justify such a radical change in international criminal law. Japan makes the same criticism of the Committee’s recommendations to change the law concerning money laundering, and of its proposal to criminalize speech that can be seen as “promoting the sexual abuse of children in any way.” Both of these suggestions, too, are wildly outside the competence of the Committee.

Conclusion

There was a time when a set of Guidelines like this would have sailed through the Committee on the Rights of the Child unnoticed, because no child protection group would have dared speak up against it. We are not entirely against the Guidelines ourselves; as we stated in our first article about them. But although well-intentioned, they are also drenched in sex-negativity.

Switzerland alludes to this problem in response to the Committee’s concern over using the term “self-generated” to refer to photographs that a minor takes of themselves for their own use, which it says may “increase the risk that the child is considered responsible instead of treated as a victim.” Switzerland answers, “we do not understand the reasons why a child responsible for producing ‘self-generated sexual material of her/himself’ should be treated as a victim, especially of what he would be victim of.”

But the plain fact is that sex-negativity sells, and that governments are buying. They know that censorship laws that even claim to be driven by the need to protect children face easy passage through their parliaments back home, and that once in place, such laws can be repurposed to other ends, or can provide a precedent for broader controls over other sorts of speech.

After all, this is exactly how FOSTA was passed, and that’s one of the reasons why Prostasia Foundation was formed the week afterwards—one year ago this week, in fact—to ensure that the same thing could never happen again.

FOSTA was actively supported by the USA chapter of ECPAT, which drew upon false statistics in lobbying for this harmful law. ECPAT International also happens to have been responsible for facilitating and supporting the Committee’s consultation process on the Guidelines, and its special legal advisor Jaap Doek is listed in the document properties as its author. (He is also one of the authors of the Luxembourg Guidelines, which we also criticize in our submission.)

Today, we stand up for a new and different vision of how children can be protected from harm. Our vision of child protection is based around the prevention of abuse rather than simply the incarceration of offenders; it draws on science rather than perpetuating stigma; and it stands up for the human rights of all, rather than assuming that the censorship of fiction and art will ever be in our own interests, or in the interests of our children.