Christjan Bee of Monett, Missouri, has been sentenced to three years in federal prison, followed by five years of supervised release, for possession of obscenity, specifically, comics that depicted children having sexual intercourse with one another and with adults.
The news came in a press release from the U.S. District Attorney's Office for Western Missouri, which prosecuted the case. According to the prosecutor, Bee's wife contacted local police in August 2011 and said she had found what she believed to be child pornography on his computer. The police executed a search warrant and seized Bee's computer:
During the forensic examination of Bee’s computer, a collection of electronic comics, entitled “incest comics,” were discovered on the computer. These comics contained multiple images of minors engaging in graphic sexual intercourse with adults and other minors. The depictions clearly lack any literary, artistic, political or scientific value.
This case is reminiscent of that of Christopher Handley, who also pleaded guilty to possession of drawn images of minors having sex. This is not child pornography, points out Charles Brownstein, executive director of the Comic Book Legal Defense Fund, because the images are drawn, not photographic.
Brownstein told Robot 6 today that he believes the Bee case wouldn't hold up in front of a jury, but his comments on the case were limited because the CBLDF was not actually involved; he first heard about it from news reports that Bee had pleaded guilty and, therefore, waived his right to defend himself. Still, Brownstein said, "Even without knowing all the facts, it is an extremely disturbing case."
Every news report on the Bee case so far has relied entirely on the press release linked above, but when Bee entered his guilty plea, Reason Magazine ran an article that included links to some of the court documents as well as background on the legal issues. The original indictment charged Bee with receiving and distributing materials "the production of which involved the use of a minor engaging in sexually explicit conduct and which visual depiction was of such conduct." That would not be the case with drawn comics, but in the absence of other information it's hard to know whether the indictment was simply mistaken or the materials found on Bee's computer included photographic child pornography, possession of which is illegal, and the prosecutors dropped that charge as part of the plea deal.
This distinction is important. "Art is not against the law," Brownstein said. Photographs of children in sexual situations are evidence of a crime, which is why mere possession is explicitly forbidden by the law. However, the Supreme Court struck down a ban on possession of non-photographic images, calling it "overbroad and unconstitutional."
"In response, the Congress created a new category called 'obscene child pornography,' which is visual depiction by cartoons, sculptures, paintings and other non-photographic representations," Brownstein said. "The problem is that it is an extremely overbroad area of material that doesn't combat any harm against a real person." This law, the PROTECT Act, has not been challenged in court, because, he said, "the government successfully intimidates people with the five-year minimum sentence that is attached to the possession of what the government calls 'obscene child pornography.'"
Brownstein believes the time to intervene in a case like this is before it gets to the prosecutor, and he cites a case the CBLDF was involved in last year as an example of what early intervention can accomplish. "In the summer of last year, we received a call from an individual in Idaho who was investigated because a malicious ex-partner went to police and alleged that comics this person owned were child pornography and obscene," he said. "The police went to his home, interrogated this person, took his computers, and said 'You are under investigation for possession of child pornography.' We were able to put our lawyers on the case to assert that the materials in question, which were comics of the manga and furry genre, were protected by the First Amendment and were not pornography, and that the materials were seized improperly without a warrant. Thanks to our actions, the investigation was dropped."
While many people find drawings of minors having sex distasteful, Brownstein points out that that doesn't mean it is, or should be, illegal. "As long as you are not hurting anybody, what you do in the privacy of your own mind is nobody's business but your own," he said.
There's more on the case at the CBLDF website.