As many of my friends know, I’ve been an anime (used to be called Jap-animation) fan (otaku) for the longest time. Probably longer than most of you who are. At times, I’ve been a causal, poser-type, fan but for most part, really deep into it. There was even a time in my life of self-discovery when I didn’t touch the stuff for a couple years. We all know, as fans, that there are a many facets of anime and being an anime fan. There’s just too many things to know about anime for any one person know, short of breathing, living and sleeping all about it. But if there is such a person, I bow to you...“Ota-King.” Other than the mainstream anime that “posers” are into, real fans know what’s new before they even hits the US shores. This brings up another aspect of being an anime fan that most of us don’t talk about publicly or talk about jokingly–hentai. As defined by Wiki, “Hentai is a Japanese word that, in the West, is used when referring to sexually explicit or pornographic comics and animation, particularly those of Japanese origin such as anime, manga (Japanese comics) and computer games.” For this opinion, let’s use this definition. Whether or not this is an accurate definition will be up to you. This opinion will be focused on hentai as it is by the eyes of the current statues of the law.

For the past two years, I’ve been studying to become a digital forensics technician. As a part of this course, law classes are required, as well as technical classes. While taking these law classes, Criminal Law and Criminal Justice, I gained an interest in reading criminal case briefs (a summary on cases, trials and judgments) in my spare time. During the summer, I was curious if there were any cases in relation to anime. For years, I was aware of the grey area of fan-subbing anime (the subtitling and distribution of unlicensed anime in North America). But I was also curious if there were any cases where US anime companies brought any lawsuits to any of the fan-subbing groups. I’ve read many arguments between both groups and attended panel discussions in conventions. Many of the fan-subbing groups seem honorable and removed fansubs from their websites when requested by anime companies from Japan and North America. But some less honorable groups went underground.

In my search for cases, I came across the 2007 case of “US vs. C. S. Handley.” By coincidence, a topic about sexual predators in my studies. The case involved the defendant, Christopher Handley, was charged “with receipt of obscene visual representations of the sexual abuse of children and possession of obscene visual representations of the sexual abuse of children.” Hadley had violated statues 18 USC § 1466A(a & b) and § 1461, 2. You could look up these statues in your own time if you’re interesting in knowing them in detail. In common terms related to anime, he was in the possession of hentai material, was caught and charged by the law. Are we not protected by the First Amendment, the freedom of speech? We are, but there are some exceptions. In the case, it was stated that the material “are drawings from Japanese anime comic books that were produced either by hand or by computer, and the drawings depict fictional characters.”

Let’s face it, as anime fans, we know that these materials are easily obtainable (either at conventions, through mail order or the internet) and what type of material they depict and/or represent. This brings up the question “is the possession of these materials against the law?” The mere possession of obscene material is not a crime, but in the case of most hentai, I’m afraid my answer is “yes.” Here’s the reason. If you get caught, you have to prove that the material you have is not obscene to mainstream society standards and must have some artistic value to society. It’s called the Miller Test. If you can’t prove it to a jury of your peers, then the material is obscene. In addition to possession, there also the matter of how it’s obtained. In current statute, § 1466A, it’s illegal to receive or distribute obscene material though interstate commerce. Meaning, we, anime fans, cannot buy, sell or download most hentai and not realizing what it is and what it’s about. Doing so is, in fact, the act of committing a crime. So, what about those retailers who sell hentai at conventions or through the internet? That’s a good question. Legally, I really don’t know the real legality of it when it comes to retailers. Personally, it’s a violation of § 1466.

I’m not an expert at the law, trying to scare you or put a damper in your hobbies. It’s just my interpretation of the law as a student. I scare myself sometimes when I learn how law relates to anime. It makes me think twice sometimes. But I do feel that this is an issue of Japanese culture that we, as anime fans, have to address in our own society. Are you familiar with the show, “Taboo,” on the National Geographic Channel? Good show. And just like the show, we cannot say that what’s acceptable in one culture is acceptable in another, mainly ours. Anime is still a niche hobby in mainstream America that’s, for the most part, still largely misunderstood and too alien. You know the look in people’s faces when you tell them you’re an anime fan. The media mostly feeds the negative aspects of anime to the mainstream. When was the last time you heard anything good through mainstream networks about anime? Disney doesn’t count. For those of you who attended Anime Expo 2000, remember the fiasco with the irresponsible retailer? People still talk about that incident today. We have to be responsible fans for the growth of our hobby or the mainstream will just see us, all, as “hentai.”

Related Info:
US vs. Christopher S. Hadley
Stanley vs. Georgia
US vs. Willimas
Flynt vs. Ohio
Miller vs. California
US vs. Whorley
Kaplan vs. California

Statues 18 USC:
§ 1461
§ 1466A (a) & (b)
§ 2256(2)(A) & (B)