Lolicon and You: Assessing the Robustness of New Zealand's Approach to Simulated Child Pornography

Abstract

At first glance, the question of whether a cartoon image of characters from The Simpsons depicts “people” would seem to be mere legal miscellany. However, this question was the central focus of a 2008 New South Wales Supreme Court decision. The decision was also not without consequence: it resulted in a man receiving an A$3000 fine. The source of the legal controversy was the content of that image, for it depicted child characters from the show engaged in explicit sexual acts. In the eyes of the law it was child pornography. This paper will focus on this “simulated” child pornography, material produced without the direct harm of a child. Such material represents a particular challenge for legal regimes seeking a just and proportionate response, given the volatile subject matter. It will be argued that the current laws of New Zealand are fit for this purpose, providing the censorship authorities with the freedom necessary to act when it is necessary, and refrain when it is just. It is particularly important that laws that restrict free expression bear close scrutiny. This is because the freedom to speak; to express ideas, to demonstrate identity, and to engage with others in society, is a paramount right. Enshrined as it is in international human rights declarations, and the New Zealand Bill of Rights Act, limitations on free expression must be reasonable and justifiable. This justification may be based around preventing direct individual harm, or diffuse social harm, but it must be of sufficient weight to vindicate the rights of those sanctioned.In determining the robustness of the New Zealand approach, this paper will move through Four stages of analysis. The first stage will define and categorise simulated child pornography, establishing a factual context and providing further motivation for discussion. The second stage will outline how the law in New Zealand operates in regards to such material, contrasting this approach with other jurisdictions and establishing the core theoretical dichotomy between “depiction” and “promotion and support”. The third stage will provide the yard-stick by which to assess the robustness of the New Zealand criminalisation approach, establishing three distinct circumstances which should define its limits. The final stage stage will then apply this ideal to the New Zealand approach, advocating strongly for recognition of the laudable discretion it provides, and urging that “promotes and supports” remain clearly distinguished from mere depiction. With this overview in mind, the starting point is to flesh out the context in which this discussion takes place.