So, news from Estonia. An author named Kaur Kender was prosecuted for writing a book titled “Untitled 12”. The prosecutor said it was child pornography under the statute’s definition, as it depicted graphic scenes of the sexual abuse of children. The defense argued that it had artistic value, and the purpose of the work was not pornographic. The lower court dismissed the charges, agreeing with the defense. However, this is what the prosecution had to say:
Prosecutor Lea Pähkel appealed the decision, and on Wednesday the matter was taken up by the Tallinn Circuit Court. In the first hearing, Pähkel said that the artistic value of Kender’s work did not matter in the case at hand, and continued on her original line of child pornography accusations.
“The Penal Code doesn’t specify the aim of a piece of pornography, and doesn’t demand an assessment of what it contains, for example in terms of its potential to arouse pedophiles,” Pähkel said, adding that the story still described sexual acts involving children in a vulgar and intrusive way, and that in the light of this fact the Estonian Penal Code didn’t call for an assessment of the text in question to define whether or not it was literature or art.
This case demonstrates the difference between totalitarian countries in Europe, and the USA when it comes to these types of works. In the USA, a lack of serious artistic value and an appeal to the prurient interest when the work is evaluated as whole need to be proven by the prosecution and a work is protected until proven otherwise in court. The argument that the court in Ashcroft v. Free Speech Coalition made when declaring the CPPA unconstitutional was that there was no children involved in the creation of virtual child pornography, that there was, at worst, a too indirect link to child sexual abuse in order for this category of speech to not be protected, and that because of this, it did not merit criminalization unless it was proven to be obscene. Then the law was amended by PROTECT, and a CPPA with an obscenity requirement was created. The situation is different in Estonia. The law does not mention anything about artistic value, or obscenity, and this leaves creators in that country extremely vulnerable to abuses from the state.
I tried looking for the book in Amazon, and it was unavailable. Apparently, Amazon took it down because of this incident. I hope that the prosecution loses the appeal, and that the book comes back.
Here is another link with a very interesting analysis of this case and its implications for art and literature in Estonia: This web page could not be loaded.