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児童売買、児童搾取および児童ポルノに関する子どもの権利条約の選択議定書の履行におけるガイドライン案に対するパブコメ

To Whom It May Concern

I am a lawyer admitted in JAPAN and the State of California.

It came to my knowledge that the COMMITTEE ON THE RIGHTS OF THE CHILD is currently preparing guidelines concerning 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.

I support the international ban on child pornography, as long as the ban is limited to images and videos of real children being actually abused. Regulation against Child Pornography is only justified as an exception for Freedom of Expression, because it violates the human rights and the dignity of a real child. I believe that the COMMITTEE understands this rational from the language in Paragraph 65 & 66.

Paragraph 65 of the draft Guideline:
The Committee draws the attention of States parties to an increasing international reluctance to use the term “child pornography”. The term is considered to undermine the situation of the victim because it suggests a connection with pornography – an activity that is often legal, in which the subject participates voluntarily and to which the subject is capable of consenting, i.e. an adult. This is far from the reality of child victims of sexual exploitation and abuse.

Paragraph 66 of the draft Guideline:
The Committee therefore recommends that States parties, in line with recent developments, avoid the term “child pornography” to the extent possible in legislation and policy, and use other terms such as the “use of children in pornographic performances and materials”, “child sexual abuse material” and/or “child sexual exploitation material”.

However this proposed Guide line has paragraphs that attempt to expand the definition of Child Pornography to include drawings, cartoons, written materials, toys, or other representations of imaginary or fictional children, as proposed in the current draft Guidelines, which is very incongruous with the understanding of the COMMITEE shown in Paragraph 65 & 66.

Paragraphs that raises my concern are Paragraph 61, 62, 63 and 64.

Imaginary or fictional children, are merely fictional characters that are works of imagination that does not actually exist. Fictional children are not humans. Criminalization of sexual depictions of fictional children simply does not make sense, it is like banning mystery novels for murder of its characters.

There is no evidence that sexual depictions of fictional children results in harm to real children.

Banning such representations by including them in the definition of Child Pornography, would infringe the right to freedom of expression guaranteed by Article 19 of the Universal Declaration of Human Rights and by the Constitutions of most developed nations.

This guideline would ban creative works that has nothing to do with child exploitation and place unnecessary restriction on the children’s right to access mediums necessary for children to think about their own sexual maturity during adolescence, to learn about the risks of being sexually exploited or to denounce their victimized experience. In Japan, many Manga works that depict children and sex are considered masterpieces in this context.
It should also not be forgotten that it is sometimes important for victimized children to express their experience to recover from their trauma, but this guideline could lead to a ban on such works necessary for recovery.

I am also concerned that the proposed ban on fiction would divert the police and administrative resources necessary to protect real children from actual harm.
 
For the reasons mentioned above, I respectfully request that all mentions in the Guidelines that expands the definition of Child Pornography to include imaginary or fictional children be eliminated.

March 27, 2019
Takashi Yamaguchi , Esq.
Admitted in JAPAN and California
Link Law Office, Kito and Partners

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