Is Lolicon illegal in the US?

There seems to be a lot of confusion around this.

Some say there was a law and that it was struck down as unconstitutional and that it’s fallen back to state obscenity laws, while Discord seems to think the federal law is still in force.

I’m not a lawyer, but the relevant bits:

Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

The concise answer is that lolicon is legal if it is (a) not visually indistinguishable from a real minor (which means things like deep fakes and possibly very realistic 3DCG are questionable) and (b) is not obscene under state obscenity law. But “obscene” has a loose definition and that is where differences of opinion can come in.

1 Like

I have mixed feelings on that law.

Politicians would generally say that it would encourage people who otherwise wouldn’t have wanted to seek out CP to do so after getting a taste for this content.

However, I know of some sites which I won’t mention for obvious reasons (not least because I don’t want to get anyone here arrested), which have some fairly realistic 3DCG and the moderators largely allow it as they believe that it is beneficial as an alternative outlet.

Some claim that they were able to break away from CP addictions, precisely because of the content on those sites and that it would have been impossible otherwise.

It is however good to see that the situation is a bit better than I expected it to be there.

I tend to agree (talking here about the law as it should be, not as it is) that there is no rational reason for distinguishing between 2D and 3D fake images. The only rational basis for the “visually indistinguishable” criterion, in my opinion, is that there might make it too difficult to obtain a conviction over real abuse images, if the defendant could just claim that they were actually computer-generated.

I just wanted to jump in and add a bit to the discussion.
When it comes to §1466A specifically, there are two parts of the law you should be aware are explicitly unconstitutional, even if they have not yet been removed. 1466A(a)(2) and 1466A(b)(2) go beyonds the bounds of obscenity, and as such were the parts of the law deemed unconstitutional in United States v. Handley, as well as in several other cases. I believe the reason that the parts haven’t been removed is because we haven’t had a federal court knock them down yet, but I could be wrong.

And to add to the problem the definition of obscenity, there are at least some depictions which can relatively clearly be determined to be obscene. For example, from U.S. v. Koegel:

I wanted to ask about your statement of it being legal if it’s “not obscene under state obscenity law”
Whould this mean it’s impossible to be arrested (or at least tried) by federal agents for distributing obscenity to adults in Oregon, where their obscenity laws were deemed unconstitutional, even when there are federal restrictions on obscenity, as previously pointed out?

It’s also because unconstitutional laws aren’t automatically stricken from the statute books, they just become dead letters. And any lower court ruling remains subject to being overruled by the Supreme Court.

If it’s distributed across state lines, then there is federal jurisdiction to try the case. There would not be federal jurisdiction to try someone for mere possession. At least this is my understanding.