The Legality of Cub Porn

20 Jan 2014 |

Furry cub porn, love it or loathe it, is a fact of life. There is demand for cub porn within our community, and so there will always be supply.

I have written before about the ethical aspects of cub porn here on [a][s]: I am, with some qualifications, a defender. There are certainly valid arguments for censorship or restriction of cub porn, not least the impression it can give to non-furry friends and family. Those interested in the ethics should start with my article—In Defence of Cub Porn.

Those interested in the legal status of cub porn should read on.

Cub porn is banned on Fur Affinity; it's allowed on Inkbunny as long as human characters aren't involved; it's largely unrestricted on SoFurry. The administrators of these sites each have their own philosophy, but all are united in that they don't wish to engage in illegal activity.

As it turns out, the legality of cub porn varies widely across the world.

Important disclaimer: I am not a lawyer, and this article is not legal advice.

In the United States, cub porn is legal.

The First Amendment of the United Status constitution effectively prevents laws that may abridge freedom of the speech or the press. This is unusual because it affords special protection to speech: politicians are unable to prohibit, say, hate speech.

There are some exceptions in United States law. A judgement in 1942 (Chaplinksy, ref) concluded that 'fighting words'—those that by their very utterance inflict injury or tend to incite an immediate breach of the peace—are not protected by the First Amendment. But 'fighting words' exceptions are very rare. So, for example, the Westboro Baptist Church are allowed to picket funerals.

The protection afforded by the First Amendment extends to pornography, which is accepted as a valid form of speech. A landmark ruling in 1985 (Hudnut, ref) concluded that even pornography depicting rape, bestiality, torture, and a whole bunch of other things mostly related to explicit subordination of women, is protected by the First Amendment.

And, yup, a ruling in 2002 (Ashcroft vs Free Speech Coalition, ref) confirmed that simulated child pornography is protected by the First Amendment. This struck down a law passed in 1996 (The Child Pornography Prevention Act), which was intended to ban such pornography, among other things.

So, in the United States, furry cub porn has been tested in the courts directly, and it is perfectly legal.

Porn involving animals, or depictions of animals (or animal-people) is also okay. However some American states have animal cruelty laws that prohibit bestiality, so while it's legal to own real-world bestiality pornography, it may not be to legal to produce depending on where you live.

The United States is a big cultural force, and so it's easy to catch a few episodes of Law & Order, and assume that such a libertarian perspective is common across the western world. It's not, as we shall see later in this article.

In the United Kingdom, cub porn is illegal.

In the UK, it is criminal to possess pornographic images that include a participant is under the age of 18. The image doesn't even have to depict a sex act: it's illegal if the image simply 'focusses principally on a child's genitals or anal region'.

The law applies whether the image is real or simulated. And it covers any image where 'the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child'.

This has been the law in the UK since 2009, when parliament enacted the Coroners and Justice Act (ref).

In Canada, cub porn is illegal.

Canada has a Charter of Rights and Freedoms, which includes the right to 'freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication'. This is a similar wording to the United States First Amendment, but Canada makes an exception for simulated child pornography.

The question was settled in the Canadian courts in 2001 (Sharpe, ref). The courts stated that it is criminal to possess 'material that poses a reasoned risk of harm to children [and] it should include visual works of the imagination as well as depictions of actual people'.

The court's definition of such illegal material almost definitely extends to furry cub porn. The court concluded that simulated child pornography (such as imported-from-Japan pornography that depicts underage animal-people) 'poses a reasoned risk of harm' because paedophiles may use such images to groom potential victims. It's not quite as clear-cut as the UK law, but it's safe to conclude that some, if not most, furry cub porn is illegal if you're north of the border.

In Australia, cub porn is probably legal.

Australia, like most countries, bans child pornography however the law specifically applies to only real children. Pornography of simulated underage characters has been shown to be legal via the court system.

There are a couple of minor exceptions to this. Firstly, Australia has strong laws against depictions of sexual violence. For example, a US-produced gay porn film with the (predictable, awesome) title Tight Ends & Wide Receivers, is banned in Australia because one of the 'players' is shown being struck in the crotch by an errant football, which counts as 'sexual violence'. (You'll be pleased to hear that he recovers, thanks to some imaginative physical therapy.) Possession of some underage pornography, usually in the form of imported manga, is sometimes prosecuted under these sexual violence laws (which apply whether the pornography is real or not). The punishment is usually a small to moderate fine.

There is also one example from Australia where an unlucky man was prosecuted for being in possession of crude Simpsons pornography, presumably depicting Bart and/or Lisa (ref). This judgement drew worldwide widespread derision (and giggling) and almost certainly would have been struck down should the accused have bothered to appeal. (He chose to accept the court's punishment, which was a A$3,000 fine.)

In New Zealand, cub porn is illegal.

A New Zealand man was jailed in 2013 for having a few pornographic clips depicting nominally underage animal-people, for 'possessing objectionable material' (ref). It all seems pretty clear-cut, however this case was complicated because the man had, several years previously, indecently assaulted a teenage boy. It's probably fair to guess that the prosecution was driven by fear that he would continue to abuse children, rather than a desire to stamp out a dangerous tide of so-called 'pixie sex'.

In South Africa, cub porn is illegal.

South Africa's laws are very similar to those in the UK. It is illegal to own child pornography, which 'includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted or described as being, under the age of 18 years'. This law has been in place since 2003, as part of the Films and Publications Act (ref).

In Scandinavia, cub porn is (probably) mostly legal.

You'll have to forgive me for being a little vague here, however I'm outside of my English-speaking comfort zone.

In 2010, in Sweden, a man was prosecuted for possession of what sounds like furry cub porn: underage comic characters with cat ears and tails. His prosecution was overturned on appeal, and presumably this sets the precedent that such pornography is not illegal.

Similar laws exist in Norway, Finland, and Denmark, however these have not been tested to my knowledge. I am relatively comfortable concluding the furry cub porn is probably not illegal in those countries, although of course there are differences from country to country: for example, bestiality pornography is unambiguously legal in Denmark (as long as the animal isn't harmed) but unambiguously illegal in Norway.

In Western Europe, cub porn is (probably) mostly legal.

Laws vary from country to country, and I'm stymied by language. A general theme seems to be that simulated child pornography is illegal only if the characters might reasonably be mistaken for real children. The presence of age-play in Second Life seems to be a common concern.

Based on my (limited) research, I guess that pornography involving underage furry characters is unlikely to be specifically illegal in most parts Western Europe. I was unable to find any convictions involving pornography that might be comparable to furry cub porn.

Can you help?

If anyone able to shed light on other countries, or provide more detail, please leave a comment or drop me a note (jm@furrynet.com).