Is ‘Lolicon’ Manga and Anime Legal In Australia?

Lolicon is likely to breach a number of serious criminal offences at both State and Federal level, which cover the possession and production of  child abuse material.

Section 91H of the Crimes Act 1900 (NSW) outlines the offence of producing, disseminating or possessing child abuse material, which comes with a maximum penalty of 10 years imprisonment.

“Child abuse material” is material which depicts or describes in a way that reasonable persons would regard as being offensive:

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child.

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

• The standards of morality, decency and propriety accepted by reasonable adults
• The literary, artistic or educational merit (if any) of the material
• The journalistic merit (if any) of the material
• The general character of the material

Lolicon media likely fall within the definition of child abuse material does not just encompass depictions of real children, but also fictional characters and drawings depicting someone who appears to be under the age of 18.

In the case of McEwen v. Simmons, the NSW Supreme Court upheld a child abuse material conviction where the material accessed cartoons of children from The Simpsons engaging in sexual interactions.

The issue in dispute was whether the cartoon characters fell within the definition of a ‘person’ under the NSW offence.

The Court ultimately found that offence was made out because ‘person’ includes fictional or imaginary characters, whether or not they are a realistic representation.

“Lolicon” imagery is likely to be “offensive” to standards of reasonable persons, particularly given the national controversies over the sexualisation of children and our national classification guidelines prohibiting this material (see below).

It could be possible that lolicon media would fall within the defence of having “artistic” merit, however without a good test case to compare it seems unlikely that this defence would be available.

The Criminal Code Act 1995 (Cth), which applies throughout Australia, also contains several offences prohibiting the production, distribution and accessing of material that sexualises children.

Under section 474.22 of the Code, it is a criminal offence to use a carriage service, such as the internet, to:

• Access child abuse material;
• Cause child abuse material to be transmitted;
• Transmit, make available, publish, distribute, advertises or promote child abuse material; or
• Solicit child abuse material.

There is a further offence under s474.22A of the Code regarding the possession or control of child abuse material via a carriage service, which applies whether a person intended to access the material or not.

Section 471.19 prohibits the use of a postal or similar service for child abuse material, while section 471.20 prohibits possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service.

Each of these offences carries a maximum penalty of 15 years imprisonment.

Similar to the NSW offence, Federal offences apply to all “depictions” of people under the age of 18, including cartoons, dolls and even written descriptions of sexual activity.