When does a drawing or cartoon cross the line from art into porn? And – more importantly – when does porn cross the line from legal adult entertainment to illegal child pornography?

If you’ve ever seen or heard of “hentai” – an originally Japanese-styled art depicting sexual acts – then you’ll understand why we’re asking these questions today.

After all, by its very nature, no actual children are harmed in the creation of hentai, even if minors are seemingly depicted on the page or onscreen.

So, is hentai child porn? Would someone be able to get in legal trouble for just watching it? Maybe.

• Western use of the term “hentai” refers to a specific type of drawn pornography originating in Japan.
• Relatively recent laws such as the PROTECT Act of 2003 and Supreme Court decisions in cases such as United States v. Whorley have put drawn pornography into the spotlight, particularly in the case of fictional characters appearing to be under 18 years of age.
• Hentai is illegal in Maryland specifically if it has legally “obscene” material and depicts characters that appear as minors engaged in sexually explicit acts.

What Is Hentai?

“Hentai” is a Japanese term that originally meant drawn or animated sexual content that depicted activity outside the “normal” standards for pornography. It could be seen as “perverted” or “strange,” but not necessarily illegal – and not automatically depicting minors.

In the West, hentai has come to mean a specific style of Japanese comics and cartoons that show overly sexually characters and explicitly sexual plots – again, nothing that automatically screams child pornography there.

After all, as distasteful as some people find pornography, it’s not illegal to create, distribute, own, or watch porn.

Where hentai may come into trouble in United States courts is when the characters depicted appear to be underage – particularly under age 14.

Hentai and the PROTECT Act of 2003: Obscene, But Not Porn?

Almost twenty years ago now, then-President George W. Bush signed a new bill into law: The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today, or PROTECT, Act.

The law was written in response to an earlier Supreme Court decision several years prior, which struck down parts of previous legislation intended to protect minors from exploitation and the pornography industry because they were too broad.

Therefore, the PROTECT Act tried to clarify and pinpoint more closely exactly what type of pornography could be considered “child pornography” outright, and what material was simply “obscene.”

For the first, the PROTECT Act established that an individual in live action pornography simply had to be “indistinguishable from that of a minor” to qualify as child pornography. This clarification eased the way for prosecutors to justify certain evidence in court.

However, the relevant section explicitly excludes other creative media from this category, including drawings and cartoons.

So, under this portion of the PROTECT Act, hentai would not be considered child pornography at the federal level.

That said, the PROTECT Act did include “visual representations” within expanded obscenity laws. Specifically, 18 U.S.C. § 1466A states:

[It is] illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene.

The PROTECT Act goes on to say later that:

It is not a required element of any offense […] that the minor depicted actually exist.

Therefore, hentai featuring characters which appear to be minor children may be considered obscene and so subject to prosecution, unlike traditional pornography. So, what’s considered legally “obscene”?

The Legal “Miller Obscenity Test” in United States Courtrooms

For the last 50 years, the United States legal system has judged whether a piece of material can be considered legally “obscene” – and thus subject to criminal charges – rather than just sexual in nature and therefore fully protected within someone’s First Amendment right to free speech.

Established from the Supreme Court’s deciding opinion in the 1973 case Miller v. California, the “Miller obscenity test” helps courts rule on whether material is illegally pornographic in three ways:

1. The average person can say that a given work has “prurient interest.” (Basically, is the work designed to make someone sexually excited? This is the “I’ll know it when I see it” porn test.)
2. The work in question either shows or writes out sexual activity in a way that’s “patently offensive” and otherwise against the respective state’s laws. (Is the work describing illegal sex acts, such as minors engaged in sexual activity? Note that it’s whether a sex act is illegal in a given state, not necessarily at the federal level, to which this rule applies.)
3. The work itself “lacks serious literary, artistic, political, or scientific value.” (Does the work have “value” to society in some profound way, outside of sexual excitement?)

All three tests must be passed for a given work to be considered “obscene” and potentially prosecutable child pornography in the right circumstances.

For example, take the average parent’s pictures of their toddler being silly in a bathtub. Even if the toddler’s genitalia were visible, these images typically would not qualify as child pornography under the Miller obscenity test, since:

1. The average person can tell that the photo wasn’t shot to be pornographic or arouse a viewer in any way; and
2. The photo does not depict the toddler engaged in any sort of sexual activity.

Someone could argue that the toddler photo fails the third tests, since such family pictures lack any sort of societal value beyond warming a parent’s heart. However, since the photo previously failed the first two tests, it fails the Miller obscenity test altogether: All three components must be true for an image to be legally obscene.

2006’s United States v. Whorley: First PROTECT Act Hentai Conviction

In a case that demonstrates why you should never use company-issued equipment for personal reasons – especially to sexually gratify yourself when you’re supposed to be working – the first individual to be convicted under the new PROTECT Act provisions for visual child pornography got caught on a government computer.

The individual had gone to the Virginia Employment Commission office in Richmond to look for work online. Instead, he used the computer to find, send, and print hentai images depicting characters appearing to be minors.

The VEC employees told their boss, who then told the police, who then contacted the FBI. They went so far as to translate the Japanese captions of the cartoons to explicitly prove the intent of the cartoon as legally obscene.

Prosecutors charged the individual, who was later convicted on a total of 74 counts of obscenity and child pornography at the federal level. He was sentenced to 20 years in federal prison and a fine of $7,400. Appeals have been denied.

United States v. Whorley remains a landmark case in the prosecution of hentai and other drawn or animated images depicting possibly illegal sex acts. From this case and others – as well as our experience in Maryland courts defending those accused of child pornography –we can help others determine whether their collection of Japanese comics and cartoons might be illegal.

When Is Hentai Illegal In Maryland? When Underage Characters Appear Just For Sex.

Remember: The obscenity test established in Miller v. California uses local state law – not necessarily federal statute – to determine which activities could be considered obscene and therefore not under First Amendment free speech protections.

So, when it comes to hentai, Maryland criminal law explicitly prohibits anyone to:

… use a computer to depict or describe a minor engaging in an obscene act […] or sexual conduct; [or] knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance that [either] depicts a minor engaged as a subject in […] sexual conduct; or […] reflects the belief, or that is intended to cause another to believe that the […] visual representation […] depicts a minor engaged as a subject of […] sexual conduct.

Basically? It’s illegal in Maryland to possess obscene material that even seems to show characters who may be interpreted as underage.

Again: The PROTECT Act at the federal level does not require a real minor to be at risk, just a minor-appearing character to be shown. State laws on child pornography often follow federal statute.

Therefore, any legally obscene Japanese hentai that shows underage minors engaged in explicit sexual activity would be considered child pornography under Maryland criminal law.

It doesn’t matter if the characters are “actually” 700 years old but appear to be a middle-school student, or if no actual minors were harmed in the creation of the medium.

Any time you have a cartoon or drawing explicitly drawn to elicit sexual excitement, showing an illegal activity – such as statutory rape or child abuse – and has no other redeeming qualities to society, then Maryland law typically considers it to be child pornography.

If Maryland prosecutors believe that a citizen has made, downloaded, or intends to forward any sort of obscene hentai, then they might press child pornography charges – the same as if it were a “real” child depicted in the drawings and cartoons.

If you find yourself at the wrong end of a child pornography charge because you downloaded the latest hentai from a torrent file… then you’ll want to contact a lawyer experienced in child pornography defense immediately. It will be very difficult to demonstrate that your material is not, in fact, legally obscene without one.

Convictions for child porn can result in decades in jail — just for a first offense. This is not the time to try to DIY your own defense.

If you or a loved one find yourself facing down a child pornography investigation, then remember that you have a constitutional right to not answer police questions when they will be used against you in a court of law, no matter how pleasant a law enforcement officer may be.

And, you have a right to competent legal defense who fights for your rights and your reputation. JC Law will always be here to support those accused of these crimes. You can schedule a free consultation at your leisure or simply contact us now.

We’re here to help whenever you need us.