The Supreme Court has qualified comic strips and illustrations of erotic tales depicting minors as child pornography, holding that it must include in this notion anything that is likely to give the viewer the idea that the object of the pornographic representation is a minor [1].
The case in point
The appellant had been convicted by the Trieste Court of Appeals for possession of child pornography [2], which included comic strips and illustrations of erotic tales reproducing minors engaged in incestuous acts or other sexual activities.
With respect to these images, the defendant’s defense had complained of adherence to a notion of virtual pornography that would fall outside the perimeter of Art. 600-quater.1 of the Criminal Code, moreover not disputed in the present case, in which the images would not have been suitable to deem the situations depicted in them as real.
In fact, that standard defines virtual images as those “made by graphic processing techniques not associated in whole or in part with real situations, whose quality of representation makes non-real situations appear as real.”
Hence, in the view of the defense, the subjective element would have been absent in any case, as it could not require the defendant to make a complex interpretative exegesis on the scope of application of the aforementioned criminal precept.
The protected legal asset
The Supreme Court has already ruled in a similar vein in the past, adhering to a broad interpretation in identifying the legal asset protected by the child pornography regulations, also in light of the international and conventional legal framework [3].
In fact, the court of legitimacy had held that the protected good could not be limited to the sexual freedom of a person under the age concretely represented (and qualifying as a person aggrieved), but rather that boys and/or girls should be considered as a person aggrieved “To be understood as a category of persons who are the recipients of enhanced protection of sexual intimacy, including respect for the different stages of their physical and psychological development, to be understood as including the development of their sexuality” [4].
According to this reading, the legislator would have provided enhanced protection for the intangibility and development of the personality of minors, punishing all conduct that, by representing it, expresses the possibility of the minor’s involvement in sexual activities for which minors are unable to give valid consent, taking into account their degree of psychological development and relational maturity.
On this point, of great importance is the observation of the Budapest Convention’s Explanatory Report on Cybercrime [5], which pointed out that “realistic” images of minors engaged in sexual activities also present the risk of being used to seduce minor subjects or invite them to participate in sexual activities.
The court’s decision
In the present case, the Supreme Court concurred with the guideline set forth, which was also adhered to by the lower court judjes in convicting the defendant; in particular, the Court of Appeals of Trieste held that the notion of child pornography included “drawings, paintings, and anything else that is likely to give the viewer the idea that the object of the pornographic depiction is a minor“, ruling out limiting it to just “pornographic physicality.”
Therefore, the Supreme Court held that both comic books and illustrations of an erotic tale depicting minors engaged in incestuous acts or other sexual activities were correct in qualifying pornographic material.
The consolidation of the aforementioned orientation has significant repercussions not only for the pornographic comic book industry (the so-called Japanese hentai and others), but also and especially with respect to the proliferation of generative artificial intelligence systems that are invading all pornographic markets, including that of images depicting minors. The latter, in particular, represent a higher level of risk than comic books (both print and digital), due to the greater ease of access to the material’s production tools and the high difficulty of controlling them.
References
[1] Cass. Sez. III, n. 47187, 24.11.2023.
[2] Article 600c of the Criminal Code.
[3] Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography, done at New York on September 6, 2000, and ratified by Italy by L. March 11, 2002, no. 46; Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, opened for signature in Lanzarote on October 25, 2007, ratified by Italy with L. 01.10.2012 no. 172; Council of the European Union Framework Decision no. 2004/68/JHA, on combating the sexual exploitation of children and child pornography; Council of Europe Convention on Cybercrime, done at Budapest, Nov. 23, 2001, ratified by Italy through L. March 18, 2008, no. 48.
[4] Cass. Sez. III, n. 22265, 09.05.2017.
[5] Explanatory Report to the Convention on Cybercrime, p. 16.
