To whom it may concern,
I am writing to with regard to the Draft Guidelines on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC). I would like to preface my submission by praising the Office of the High Commissioner of Human Rights (OHCHR) for working to oppose child exploitation, child pornography, and child abuse in all its forms the world over. The victimization of children should be neither forgiven nor forgotten, and the good intentions of all involved in the OHCHR are worthy of praise.
That being said, I note with great dismay that the content of the Draft Guidelines contain some worrying language that I feel must be addressed. Namely on Page 14, Sections 56 through 59, which I will quote in their entirety below:
“56. Child pornography is defined in article 2 OPSC as “any representation of a child engaged in real or simulated explicit sexual activities, regardless of the means used, or any representation of the sexual parts of a child for primarily sexual purposes”. The qualification “by whatever means” reflects the broad range of material available in a variety of media, online and offline. It includes, inter alia: visual material such as photographs, movies, 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.
57. The Committee urges States parties to prohibit, by law, child sexual abuse material in any form. The Committee notes that such material is increasingly circulating online, and strongly recommends States parties to ensure that relevant provisions of their Criminal Codes cover all forms of material, including when the acts listed in article 3.1(c) are committed online and including when such material represents realistic representations of non-existing children.
58. The Committee is of the view that “simulated explicit sexual activities” should be interpreted as including any material, online or offline, that depicts or otherwise represents any person appearing to be a child engaged in real or simulated sexually explicit conduct and realistic and/or virtual depictions of a child engaged in sexually explicit conduct. Such depictions contribute to normalising the sexualisation of children and fuels the demand of child sexual abuse material.
59. Moreover, for the reasons explained in paragraph 63, any representation of the sexual parts of a child, including realistic images of the sexual organs of a child, for primarily sexual purposes falls under the definition of this offence. Where it may be complicated to establish with certainty if a representation is intended or used for “primarily sexual purposes”, the Committee deems it necessary to consider the context in which it is being used.”
While the intentions of the OHCHR are admirable, I am concerned that the potential ramifications of these Sections have not been thoroughly considered. While it is perfectly understandable, and highly admirable, to encourage member states to enact laws that protect the rights of children, it is not at all clear why the the OHCHR wishes to criminalize “virtual depictions” by the same standard as material that victimizes actual human beings.
My concerns are twofold: firstly, it diminishes the gravity of real human victimization by placing it on the same level are virtual representations of the same, which necessarily entail no actual human suffering. Secondly, it presents a very real danger of threatening hard-won rights in the areas of free speech and creative expression. The zeal of many to protect the vulnerable can often, unfortunately, cloud their judgment with regards to the long term ramifications of their decisions, and laws that restrict creative expression in entirely virtual creative mediums invite abuse by those with power to abuse their position.
Additionally, while Section 58 of the OPSC makes the definitive statement that “[realistic depictions of non-existing children] contribute to normalising the sexualization of children and fuels the demand of child sexual abuse material”, the OHCHR offers neither sources no evidence to support this claim. On the contrary, in 2012 the “Sexologisk Klinik” in Denmark authored a report for the Danish government on the subject of “animated child pornography”, in which they found that “there are no scientific studies to illustrate whether the possession of fictitious child pornography…may lead individuals to commit sexual assault on children”1. In other words, one of the core assumptions of this section of the OPSC would appear to be begging the question. Given that the OHCHR is seeking to criminalize otherwise perfectly legal acts that neither produce real victims as a primary effect, nor definitively inspire further victimization as a secondary effect, this is a worrying lack of due diligence.
It should be noted, in February of 2016 the UN Committee on the Elimination of Discrimination against Women (CEDAW) held a review of the Japanese government’s efforts to implement the Convention on the Elimination of All Forms of Discrimination against Women. During this review, one of the issues for discussion between CEDAW and a delegation from the Japanese Government was “Banning the sale of video games or cartoons involving sexual violence against women ”2.
In response to this issue, Ms.Kumiko Yamada of the Japanese Women’s Institute Of Contemporary Media Culture made a powerful and admirable rebuttal3. While this rebuttal was written in Japanese, it has very kindly been translated into English by user “u/RyanoftheStars” in the KotakuInAction subreddit on Reddit4. While her comments were regarding the CEDAW, I feel that portions of her rebuttal are highly relevant to the OPSC, and to illustrate my point I wish to paraphrase some of her comments below:
I am absolutely in agreement that the protection of the rights of children is important. On the other hand, I think it should be carefully and seriously evaluated whether the measures taken to ensure those protections are valid ones or not. If we are asked to consider whether “Protecting Children’s Rights” requires us to “Ban the Media Virtually Depicting Child Exploitation,” then we must reply that that is an absolute “no.”
The so-called child exploitation in manga, video games, and other virtual media is a made-up thing and as such does not threaten the rights of actual people; therefore, it is meaningless in protecting the rights of children.
It goes without saying that the sexual abuse of actual real people is an actual violation of their rights and should obviously be forbidden by law, and that it’s necessary to protect and support victims. However, the figures in manga, video games, and other virtual media are creative fictions that do not actually exist, and thus this is not a violation of any real person’s human rights. We should focus on attacking the problems that affect real children’s human rights as quickly as possible.
It is noted that on the other hand when it comes to “media that depicts child exploitation” a certain segment of people are going to find it unpleasant. Nevertheless, to ban expression and commerce unilaterally based on feelings of whether or not something is unpleasant, or viewpoints on what should be moral, is a practice not to be condoned. The basis for feelings about what is or is not repulsive, and moral viewpoints, will differ based on the individual or their region and that culture’s segmented local society. The basis for the values in Local Society A and the basis for the values in Local Society B are not necessarily going to match. Therefore it stands to reason to suddenly use one local society’s standards as the standards of a society as a whole would only prompt a massacre of discord in conflicting values among the people in the greater society.
If we are to aim for the smooth operation of society as a whole, then there might be workarounds we can implement so that a certain type of person can avoid suddenly running into “unpleasant expressions” they don’t want to see, but these should be limited to regulations in zoning and circulation only. We should not ban any media that depicts “unpleasant expressions” under content guidelines that enforce moral standards unilaterally on society.
As stated above, we cannot say that banning the sale of virtual media that “depict child exploitation” is valid, even if we were to agree that the goal of protecting the rights of children is correct.
There is nothing to be gained from regulating fictional child exploitation. However, while you’re trying to fix the rights of fictional characters, you’re leaving the human rights of real children in the real world left to rot. As well, the entire reason we have a media genre such as manga that developed to take on themes such as the sexual exploitation of children came from an attitude to tolerate “drinking the pure and the dirty without prejudice.” It’s because we had the freedom to express our views and with that to express the view of a world of humans that live and die, that there are pure and wonderful things and dirty and nasty things mixed with each other.
As a final comment, I would like to address a point regarding the content of this letter. It may be the case that multiple submissions will be received by the OHCHR with identical or similar phrasing. While I’m certain this may create the impression that the submissions are insincere duplications, this could not be further from the truth. In fact, Sections 56 though 59 of the OPSC present an existential threat to the livelihood of a number of artists and industries in nations (primarily Japan) that produce fictional and virtual material that may very well fall under the jurisdiction of the OPSC. However, in spite of the global nature of the OPSC’s scope, the OHCHR has refused to accept submissions in any languages aside from English, French, and Spanish. This is highly discriminatory against people in multiple nations around the world who are unable to communicate in these languages, and are thus unable to speak in their own defence in spite of the fact that they are directly threatened by the OPSC’s overly broad definitions.
Towards that end, this letter has been created as a collective effort by concerned residents of Japan to help give a voice to the voiceless. I would hope that, in future, the OHCHR will accept public comment with the same breadth of scope that they use to impose their views on others.