In recent days there has been much discussion on the web about Supreme Court ruling No. 47187/2023, which ruled that manga (and, more generally, all comic books) depicting sexual relations between adults and minors can also be classified as "child pornography." Therefore, anyone found in possession of such items can be prosecuted, since it is a prosecutable offense ex officio.
The Supreme Court's ruling
The ruling stems from a very specific case that the Supreme Court found itself dealing with: that of a man convicted in an abbreviated procedure in 2021 by the Court of Trieste, a sentence later upheld by the Court of Appeals.
The crime involved the individual's possession of child pornography, including 6 photographs depicting nude minors and 2 photographs of minors in explicit poses.
In addition to this, images and manga comics depicting incestuous sexual intercourse between adults and minors and illustrations of an erotic tale were found in the USB flash drive taken from the subject's home.
The defense decided to appeal to the Supreme Court because, according to lawyers, the Court of Appeals had erred in equating the illustrations in the man's possession with child pornography, since they did not depict real situations.
At this point, however, the Supreme Court stressed that "it must agree with the reference of the judgments on the merits to the pronouncements of this Supreme Court, which have conferred criminal relevance not only to the actual reproduction of the minor in a situation of pornographic physicality, but also to drawings, paintings, and everything that is suitable to give the viewer the idea that the object of the pornographic representation is a minor." elaboration that allows the confirmation of the conviction decision for both comic strips and illustrations of the erotic tale depicting minors engaged in incestuous acts or other sexual activities to be deemed immune from censure."
That is: visual representations potentially capable of generating in the viewer the idea of witnessing a pornographic performance with a minor are entirely superimposed on images related to real situations.
Even then, the Supreme Court explained that the criminal relevance of the conduct lay in the depiction of situations in which minors were reduced to the rank of mere sexual objects, regardless of whether real people or purely fictional characters were portrayed in them.
Are those who own erotic manga at risk?
Of course, not all erotic manga-known as hentai-are prohibited by law. The restrictions affect only those who possess material depicting minors.
In that case the penalty is imprisonment for up to 3 years and with a fine of not less than 1,549 euros.
Who decides whether it is child pornography
The question arises: how does one determine whether the cartoon character is a minor or just an adult who shows much less than the age he or she is, since these are nonexistent subjects?
This assessment is referred to the judge of the first instance, who is called upon to evaluate the physical features of the characters portrayed and the possible development of sexual characters: if they are still in the adolescent stage, with breasts not yet formed, then there can be talk of child pornography.
Translated with deepl but proof read.
