Jurisdictions with a legal gray area regarding fictional pornography depicting minors
Argentina Possession of child pornography is illegal in
Argentina with prison sentences between three and six years. Before a modification on the Penal Code was promulgated on April 23, 2018, the law did not prohibit the mere possession, but other activities such as production, financing, trading, and distribution were punishable by imprisonment ranging from 6 months to 4 years. The law is unclear though when it comes to drawings or artistic representations . ICMEC and UNICEF claimed Argentina only criminalize images involving real children.
Austria Photorealistic (lit. "close to reality") depictions are prohibited, and are treated as regular child pornography. The definition of "reality" as with other countries that cite the same reasoning is not defined.
Chile In Chile, the possession of
lolicon and similar material is not penalized by law. In particular, the 2011 update of Law No. 20.526 of the penal code differentiates the concept of "pseudopornografía infantil" (child pseudopornography) and "pornografía seudoinfantil" (pseudochild pornography), defined as that content that "uses graphics processing programs that allow combining two images into one, making pornographic representations of adults simulate the participation of minors", with respect to virtual, drawn, simulated or artificial child pornography. It indicates that the first type is where the captured image or voice of a minor is used and through virtual manipulations it is incorporated into a pornographic production, so as to make it appear that the minor actually participated in the sexual actions shown. The second type consists of the creation by computer means and without using the image or voice of a person, pornographic images or sounds. In addition, the bill stipulates that it "deals only with the first form referred to since it is in it where the privacy of a minor is violated", thus penalizing pseudo-pornography child pornography along with actual child pornography, but excluding virtual, drawn or simulated child pornography. The article, or any adjacent articles, makes no distinction between a real or fictional 'visual display', and no further mention is made of fictional works, 3D renders, or AI-generated content. However, the use of the word 'person' in the article could be interpreted to say that the article only applies to 'visual displays' of real people, as the definition of a 'person' in Dutch law is generally used to refer to real-world human beings of flesh and blood, not fictional characters. Furthermore, in an instruction document from the public prosecutor's office, it is explicitly stated that the new article is not intended to change the scope of the previous article (240b). As such the precedent set by the 2010 and 2013 cases mentioned below are still relevant to the context of the new article.
Relevant cases In a 2010 case, after viewing the images in question, which were created on a computer, the court opined that the virtual child pornography images did not fall under criminal law. "All images can be termed as pornographic (three dimensional) cartoons, animations, or drawings. The court concludes that it is immediately obvious to the average viewer that the event is not real and that the images are manipulated images and not realistic". In 2013, the
Supreme Court of the Netherlands ruled that "a realistic depiction of a non-existent child in the sense that the depiction is indistinguishable from real" is illegal, but that when "the persons depicted are 'not real children' and that for 'the average viewer (and also children) ... it soon becomes apparent that these are manipulated images, such depictions are not illegal. The court arrived at this verdict due to the wording in the law, stating that the "or appears to be involved" section of the article could not be proven for works that can be immediately identified as fictional. The court further noted that the lawmaker did not intend for this phrase to criminalize all such depictions, rather only depictions that are indistinguishable from reality. As such the court noted that every such image should be judged on its individual merits.
Legality While the 2013 ruling appears to set a precedent for legality of fictional pornography depicting minors, both the official government website and the official Dutch police website state that such depictions are illegal across the board. In practice any ambiguous material will be judged on a case-by-case basis, and the more realistic the material appears to be, the more likely it is to be declared illegal. However, at present no clear assessment can be made about the overall legality.
Spain Spain allows drawn pornography which does not resemble real children, including cartoons, manga or similar representations, as the law does not consider them to be properly 'realistic images'. The Attorney General's Office considers that only extremely realistic images should be pursued. "In order to avoid undue extensions of the concept of child pornography, the concept of 'realistic images' must be interpreted restrictively. According to the Dictionary of the
Royal Spanish Academy 'realist' means that which 'tries to adjust to reality'. Therefore, 'realistic images' will be images close to the reality which they try to imitate". However, images that are too realistic, even paintings, are strictly prohibited due to the law of European Union. This can be understood as images that cannot be distinguished from children in reality by normal people.
Sweden Any images or videos that depict children in a pornographic context are to be considered child pornography in
Sweden, even if they are drawings. A "child" is defined as a "person" who is either under the age of 18 or who has not passed
puberty. These laws have been recorded in the media being put into play in
Uppsala: the district court punished a man with a monetary fine and probation for possession of manga-style images. This was appealed and taken to the Court of Appeal. In court, Judge
Fredrik Wersäll stated that a "person" (as in the definition of a "child") is a human being. The man possessing the illustrations, as well as
his lawyer, stated that a comic character is not a person (a comic character is a comic character and nothing else) and that a person does not have cat ears, giant eyes, or a tail and that a person has a nose. Some of the pictures featured illustrations of characters with these unusual body parts. The prosecutor and an expert on child pornography argued that these body parts had no effect and that the comic characters indeed were persons. As examples of what is not a person, the child pornography expert mentioned
The Simpsons and
Donald Duck. The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced. It was immediately further appealed to the Supreme Court. While the Prosecutor General agreed with the verdict of the Court of Appeal, he still recommended that the Supreme Court hear the case, to clarify the issue, and the Supreme Court decided to do so. On June 15, 2012, the Supreme Court found him not guilty. They decided that the images were not realistic and could not be mistaken for real children, and that they therefore could not be counted as exceptions to the constitutional law of freedom of speech. One picture was still considered realistic enough to be defined as child pornography according to Swedish law. However, his possession of it was considered defensible through his occupation as a professional expert of Japanese culture, particularly
manga.
Taiwan The Child and Youth Sexual Exploitation Prevention Act () introduced in 1995 forbids any child pornography in Taiwan. Since the law did not discuss whether the law should forbid pornography depicting minors or not, Taiwanese courts in practice did not punish pornography depicting minors mostly, although punishing cases do exist. In January 2023, Taiwan introduced an amendment to Article 2 of the act, which defines sexual exploitation as: From December 2023, several websites received removal requests from the Institute of Watch Internet Network () under the act for publicly displaying fictional child pornography. Due to
anime and manga having a huge influence on Taiwanese content creators' creating styles and the high consumption of anime and manga, the requests sparked controversies among the Internet and local content creators. Several legislators of the
Legislative Yuan questioned the law's legality to fictional creations. Japanese politician
Ken Akamatsu also expressed his concern about the controversies. In May 2024, the
Ministry of Health and Welfare released an interpretation, limiting the definition of "images of a child or a youth" to those who are based on real minors, or realistic
generative AI, excluding completely fictional anime and manga from the definition. Opinions on regulating fictional pornography depicting minors are mixed. Chen Yi-lin (), the secretary general of a child protection group ECPAT Taiwan (), believed that
Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, in which the Child and Youth Sexual Exploitation Prevention Act follows, includes regulating fictional pornography depicting minors and allowing them will promote real child pornography, thus should regulate. Liu Chia-hao (), the general director of ACG Occupational Union (), says there's no research or evidence can prove that fictional pornography depicting minors promotes real child pornography. Legal scholar Hsieh Yu-wei () expressed his concern that the regulation will cause court judgments to be too arbitrary. Hsieh also indicates the mixed opinions on regulation may cause controversies in the near future. The PROTECT Act adjusted its language to meet the parameters of the
Miller,
Ferber, and
Ashcroft decisions. The Act was careful to separate cases of virtual pornography depicting minors into two different categories of law: child pornography law and obscenity law. In regards to child pornography law, the Act modified the previous wording of "appears to be a minor" with "indistinguishable from that of a minor" phrasing. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults. Furthermore, there exists an affirmative defense to a child pornography charge that applies if the depiction was of a real person and the real person was an adult (18 or over) at the time the visual depiction was created, or if the visual depiction did not involve any actual minors. Thus, virtual and drawn pornographic depictions of minors may still be found to violate federal obscenity law. The obscenity law further states in section C "It is not a required element of any offense under this section that the minor depicted actually exist". The constitutionality of statutes governing non-child pornography is determined by the three-prong
Miller test. If material is found obscene under the
Miller test, then it is not protected by the First Amendment. Under the
Miller test, whether material is obscene is determined by: • Whether "the average person, applying contemporary
community standards", would find that the
work, taken as a whole, appeals to the
prurient interest, • Whether the work depicts or describes, in a
patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, • Whether the work, taken as a whole, lacks serious
literary,
artistic,
political, or
scientific value. By the statute's own terms, the law does not make all fictional child pornography illegal, only that found to be "obscene" or "lacking in serious value". The mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the Internet, transported across state lines, or of an amount that showed intent to distribute. There is also an
affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement. The first major case occurred in December 2005, when Dwight Whorley was convicted in
Richmond, Virginia under 18 U.S.C. 1466A for using a
Virginia Employment Commission computer to receive and distribute "
obscene Japanese anime cartoons that graphically depicted
prepubescent female children being forced to engage in genital-genital and
oral-genital intercourse with adult males". On December 18, 2008, the
Fourth Circuit Court of Appeals affirmed the conviction, consisting of 20 years' imprisonment. Whorley appealed to the Supreme Court, but was denied
certiorari, meaning the appeal was not heard. After being tracked down by IP, John Charles Wellman was arrested on May 3, 2007, then convicted and sentenced to 40 years for 3 counts related to fictional child pornography. He appealed, arguing that the search warrant that led to his arrest was invalid, that a jury instruction involving the term "obscene" was erroneous because it lacked a knowledge requirement, and that his sentence was imposed in violation of the Eighth Amendment prohibition against cruel and unusual punishment. His appeal was rejected. Brian Dalton was convicted in Ohio for possessing child pornography based on fictional child sexual abuse content in his private diary, but his conviction was later overturned because his defense attorney failed to raise a First Amendment free speech defense. The court ultimately ruled that the fictional content in his private writings is protected by free speech and does not constitute a crime. This case became a landmark as the first in the U.S. to convict and then overturn a conviction based on privately created written material, highlighting the legal balance between protecting free expression and preventing child exploitation. In 2003, the Illinois Supreme Court ruled in *People v. Alexander* that the state law prohibiting the possession and distribution of computer-generated virtual child pornography was unconstitutional because it failed to distinguish between real children and virtual images, making the law overly broad and infringing on free speech rights. The court severed the offending provisions and remanded the case to the lower court for further proceedings, emphasizing the need for laws to balance protecting children with constitutional rights in the face of technological advancements.
2008–present has faced legal challenges regarding its modifications to obscenity law. In particular, the provisions of the law that establish an alternative obscenity test to the
Miller standard have been challenged. In October 2008, a 38-year-old Iowa comic collector named
Christopher Handley was prosecuted for possession of explicit
lolicon manga. The judge ruled that two parts of the act that were broader than the
Miller standard, 1466A a(2) and b(2), were unconstitutionally overbroad as applied to this case, but Handley still faced an obscenity charge. Handley was convicted in May 2009 after he entered a guilty plea at the recommendation of his attorney, believing that the jury would not acquit him of the obscenity charges. A later ruling in
United States v. Dean (2011) called the overbreadth ruling into question because the
Handley case failed to prove that 1466A a(2) and b(2) were substantially overbroad on their face; Dean was convicted under the sections previously deemed unconstitutional due to the fact that the overbroadth claim in
Handley was an as-applied overbroadth challenge, and was therefore limited to the facts and circumstances of that case, whereas in
Dean the defendant was charged under 1466A a(2) for possession of material constituting actual child pornography, which does not require a finding of obscenity, and was read to fall within the language of the relevant statute. The facts of this case precluded Dean from satisfying the substantive due process requirements to satisfy a proper
facial challenge against the relevant statutes. At the state level, some states have laws that explicitly prohibit cartoon pornography and similar depictions, while others have only vague laws on such content. In California such depictions specifically do not fall under state child pornography laws, while in Utah they are explicitly banned. However, there are legal arguments that state laws criminalizing such works are invalid in the wake of
Ashcroft, and some judges have rejected these laws on constitutional grounds. Accordingly, the Illinois Supreme Court in 2003 ruled that a statute criminalizing virtual child pornography was unconstitutional per the ruling in
Ashcroft. On a federal level, works depicting minors that offend contemporary community standards and are "patently offensive" while lacking "serious literary, artistic, political, or scientific value"—that is, found to be "obscene" in a court of law—continue to stand as illegal, but only if the conditions for obscenity discussed above are met: mere possession of these works continues to be legal. Legal professor
Reza Banakar has since stated that "serious artistic value" is very difficult to evaluate, and that the legal task of evaluating the lack of such value cannot be executed objectively. Because
United States obscenity law determines what is obscene by reference to local standards on a case-by-case basis, the legality of drawn or fictitious pornography depicting minors is ultimately left in a gray area much like other forms of alternative pornography. Some states pay less mind to the contents of such materials and determine obscenity based on time and place an offense may occur, while others may have strict, well-defined standards for what a community may be allowed to find appropriate. Others only may have vague laws or definitions which are only used to allow the government to prosecute recidivist offenders on both a federal and state level. In May 2025,
Texas Senate Bill 20, also known as the "Stopping AI-Generated Child Pornography Act" passed by the
Texas Legislature on May 28, 2025, unanimously in both chambers, and was signed into law by Governor
Greg Abbott on June 20, 2025. The law, which went into effect on September 1, 2025, creates new criminal offenses for those who possess, promote, or view visual material deemed
obscene, which is said to depict an underage person, under age 18, whether it is an actual person, animated or cartoon depiction, or an image of someone created through
computer software or
artificial intelligence. The law gives Texas police more provisions to restrict
artificial intelligence-created
child pornography, and those charged with this felony offense could go to state jail, but this could be elevated if the person charged as a prior conviction, of a $10,000 fine and two years in prison. Critics described the law as
unconstitutional, saying it violated the
Free Speech Clause of the
First Amendment which prohibits abridgement of freedom of speech and the press, including the legal precedent set in
Ashcroft v. Free Speech Coalition. Much of the controversy regarding S.B. 20 involves the broad language pertaining to "obscene" pornographic images as including A.I.-created, animated, and cartoon depictions, with some critics arguing it could have a
chilling effect on
anime,
manga,
graphic novels, and other media produced, distributed, or created within Texas.
Cases At least nine cases have been publicized by the
mainstream media or documented since the 2008 Iowa ruling or made publicly available, in six of these cases the perpetrator either had a prior criminal record, or was also involved with real-life child pornography which contributed to the charges. Karen Fletcher is a writer from
Pennsylvania, USA, who was federally prosecuted in 2006 and pleaded guilty in 2008 for publishing fictional stories involving child sexual abuse and violence on her subscription-based website. The court ruled that her works met the legal standard for obscenity and sentenced her to five years of probation and a fine, sparking widespread debate about the boundaries between free speech and child protection. In October 2010, when a 33-year-old man from Idaho named Steven Kutzner entered into a plea agreement concerning images of child characters from the American animated television show
The Simpsons engaged in sexual acts. The incident was identified, and reported to U.S. authorities by German federal police who were able to obtain Kutzner's
IP address. This particular address contained a known file from which actual child pornography was being shared. A subsequent forensic investigation uncovered "six hundred and thirty two (632) image files, seventy (70) of which were animated images graphically depicting minors engaging in sex acts", "five hundred and twenty-four (524) pornographic image files, most of which depict what appears to be teenaged females", and "more than eight thousand files containing images of child erotica involving younger children, many of them prepubescent". A judge eventually lifted all bond restrictions placed on him as Audette was never formally charged after his arrest. In People v. Gerber (2011, 196 Cal.App.4th 368), the
California Court of Appeal overturned a conviction against a father who digitally pasted his 13-year-old daughter's face onto adult pornographic images. The court ruled that this did not violate
California Penal Code §311.11, which criminalizes possession of child pornography involving a real minor "personally engaging" in sexual conduct. Since the images were digitally manipulated and did not depict the actual child involved in any sexual activity, the court held that they did not meet the legal definition of child pornography. The decision aligned with the U.S. Supreme Court's ruling in Ashcroft v. Free Speech Coalition (2002), reaffirming that purely virtual or fictional content—without the involvement of real minors—is protected by the First Amendment. In late January 2013, after being reported by his wife, a 36-year-old man named Christian Bee in
Monett,
Missouri entered a plea bargain for possession of cartoons depicting child pornography, with the U.S. attorney's office for the Western District of Missouri recommending a 3-year prison sentence without parole. The office in conjunction with the Southwest Missouri Cyber Crimes Task Force argued that the "Incest Comics" on Bee's computer "clearly lack any literary, artistic, political, or scientific value". Bee was originally indicted for possession of actual child pornography, but, as part of a plea deal, that charge was modified to the offense of possession of "incest comics". Danny Borgos, an inmate at
FCI Seagoville already serving a sentence for possession of child pornography, was found "with a paginated series of drawings, consisting of 37 pages in a comic or coloring book-style format, three girls between the ages of 6 and 11 'engaging in sexually explicit conduct during a 2014 search. Borgos, who pled guilty on the advice of counsel and was sentenced to a consecutive 10-year term of imprisonment, attempted to challenge the judgment in 2017 with a post-conviction petition. Borgos argued that the drawn pictures should be "considered art, not obscene". However, referencing the factual basis for his guilty plea, the reviewing judge observed that Borgos had "confessed that these visual depictions ... [comprised] a 'bunch of drawings of children having sexual intercourse and an adult male sexually assaulting three little girls, implicating the definition of child pornography established by the United States Congress in . Because Borgos had admitted to the obscene nature of the fictional images, his conviction under and for "Possession of Obscene Visual Representations of the Sexual Abuse of Children" was not vulnerable to collateral attack. In May 2015, John R. Farrar, a federal inmate serving his sentence for a prior conviction for actual child pornography possession in 2007, was found with "seven hand-drawn images depicting the [sexual] exploitation of minor females" as well as "two hand-written books, describing sexual abuse of minors" on his workbench, and was indicted for six of the images, given the 10 year minimum sentence, extending his overall prison time by about 4 years, despite his
no contest plea in the initial trial, he attempted to appeal the sentence under the pretense the images were not obscene and that his sentence violated the
Eight Amendment, his appeal was shot down. On July 11, 2017, David R. Buie, who was under supervised release for a prior conviction relating to crimes involving the sexual victimization of actual minors, was reported by staff at his local library, and subsequently indicted under 1466A(b)(1), for printing a full-color drawing that depicted a boy engaging in sex with adults that appear to be his parents, Buie appealed the decision under the pretense that (b)(1) is vague, overbroad, and encroached on protected speech, the appeal was rejected and he given the sentence of 121 months (or 10 years) and a lifetime of supervised release, which he also appealed. On May 18, 2018, a registered sex offender from
Newport News, Virginia was sentenced to over 19 years in prison for the attempted receipt of obscene images, obstruction of justice, destruction of evidence, and sex offender penalties. Elmer E. Eychaner, III (aged 46) was described as having a significant history of sexual offenses involving minors. He had most recently been convicted in 2008 for child pornography crimes in federal court. During this instance Eychaner requested a laptop to search for a better job while on federal supervision. He instead violated the terms of his supervision by using the computer to look up obscene anime cartoon images depicting the sexual abuse of minors. Thomas Alan Arthur, who lived in
Terlingua, Texas and operated a website by the name of "Mr. Double", in which several thousand authors had submitted over 25,000 stories depicting the rape, murder, and sexual abuse of children through a manually-reviewed form, had his residence raided in November 2019 and himself indicted and later charged in October 2020 with: two counts of producing, distributing, receiving, and possessing an obscene visual depiction of a minor engaged in sexually explicit conduct, five counts of using an interactive computer service to transport obscene matters, and one count of engaging in the business of selling or transferring obscene matters. During the trial, Circuit Judge, James L. Dennis, dissented from the ruling and asked for a new trial, arguing that the exclusion of Arthur's expert of choice; Dr. David Ley, had affected the ruling, and proposed the possibility that an expert like Dr. Ley could've testified of the "therapeutic benefits for some individuals suffering pedophilic disorder" of the Erotica that Arthur had on his website. Jesse Fernando Perez was found guilty on August 7, 2023, for producing and possessing obscene visual representations of the sexual abuse of children in
FCI Petersburg, a low-medium security federal prison, violating 1466A(a)(1) and (b)(1). Perez was sentenced to 10 years. Perez appealed to acquit, arguing FCI Petersburg was not part of the territories the United States had jurisdiction over and arguing that his convictions are unconstitutional; his appeal was denied. The Arkansas Supreme Court overturned 11 convictions against Jeremy Lewis related to “distributing, possessing, or viewing” child pornography under Ark. Code § 5-27-602. The Court found that the images in question were computer-generated (CGI) and did not depict or incorporate the image of an actual child. Even though the law prohibits possession of “computer-generated images” under § 5-27-602(a)(2), the statute is limited to images that depict or incorporate a *natural person under 17 years old* engaging in sexually explicit conduct. Because there was no evidence that the CGI images actually showed a minor (or incorporated an image of one), Lewis's convictions on those 11 counts were reversed for failure of proof. In the Indiana case Grecco v. State (2024), the defendant was charged under state child pornography laws for possessing Japanese anime-style images depicting fictional minors in sexual situations. However, the Court of Appeals ultimately ruled the defendant not guilty, finding that the images did not involve real children and, though disturbing, were protected as fictional artistic expression under the First Amendment. Citing the U.S. Supreme Court's decision in Ashcroft v. Free Speech Coalition, the court affirmed that purely fictional or computer-generated child pornography does not constitute a crime. This case established a significant legal precedent in Indiana that fictional content alone does not violate child pornography laws. == See also ==