The Legality of Cub Porn

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).

About JM

JM is a horse-of-all-trades who was introduced to furry in his native Australia by the excellent group known collectively as the Perthfurs. JM now helps run [adjective][species] from London, where he is most commonly spotted holding a pint and talking nonsense.

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19 thoughts on “The Legality of Cub Porn

  1. > 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.

    I could have sworn this was not the case, that possession and distribution of bestiality was against Federal law (even though the practice of bestiality was only forbidden on a state-to-state basis), though for all I know it may have been thrown out by one or more of the cases cited. Can you provide your citations for this statement?

    1. Hi bersi2

      The United States federal government defines bestiality porn as “obscene”, along with a whole lot of other things, under the “Miller test” (Miller v. California, 1973). This is the relatively famous decision where something is considered obscene (as opposed to erotic) if it meets three criteria. In brief, it’s obscene if it’s erotic; sexual; and lacks artistic value.

      But this only restricts commerce, not private ownership. So it is perfectly legal to download and own bestiality anywhere in the United States. The legality of production and sales (and the act itself) varies on a state-by-state basis.

      Citations are difficult because there is no case history for the absence of a law (if that makes sense). But there is a good review here:
      – Bestiality and Zoophilia: Sexual Relations with Animals, edited by A.. Beetz & A.. Podberscek

      And, much as I had to provide this as a reference, Wikipedia sums it up more directly: http://en.wikipedia.org/wiki/Zoophilia_and_the_law_in_the_United_States#Zoophilic_pornography_in_the_USA

  2. I think you’re incorrectly equating “cub porn” with “child porn”. The crucial issue is that furries don’t count as people.

    To take an example from the UK law (although the same reasoning can be applied to the other jurisdictions):
    (5) “Child”, subject to subsection (6), means a person under the age of 18.

    I don’t know that “person” is actually defined under UK law, beyond including corporate persons. However, I suspect a UK or European court would prefer to exclude furry characters rather than claim that non-humans are persons. If they do the latter, there will be far larger repercussions, such as false imprisonment in zoos, and murder in abattoirs.

    Per parliamentary discussions at the time of the bill’s passage, the text you quoted from section (6) is aimed at preventing people adding ears or antennae to pictures of human children in order to get around the law. It does not extend to making furry pictures illegal, as long as the predominant impression is that the character depicted is not human.

    This is why Inkbunny’s content policy limits its restrictions to human characters, and those who appear essentially human with additions – because only humans are legally “people”.

    1. The UK law goes with “child-like characteristics” as it’s defining of minor for pornography. Even fictional characters are covered in that. It doesn’t have to be human, it can be a complete work of fiction. The UKs hardline stance on this can be evidenced by their other laws stating simulated non-consenual and other “hardcore” pornography is itself illegal, even if performed by two consenting adults and sold to adults.

      1. I would be very surprised to see a conviction involving furry characters upheld on appeal. Again, if the legal definition of the word “person” were taken to include clearly non-human characters – not just humans with ears, tails or antennae tacked on, as intended by legislators – it would have significant impact in unrelated areas of law.

    2. Hi GR, thanks for the comment. I was hoping you’d stop by, because it struck me that Inkbunny’s policies don’t really match up with the legislation.

      I follow your less conservative interpretation of the law, and your reasoning may be sound (although I think your semantic argument about the definition of ‘person’ is a bit slight). In general your point of view is certainly valid and arguable.

      I suspect it will an unknown until the time when/if the ruling is tested in court. Hopefully Inkbunny won’t be the test case! – presumably, in any event, the site is hosted in the United States?

      1. Legal decisions are based on the meanings of words, and it is a pretty big jump to go from human to non-human, especially when you assume that the law is meant to protect real children somehow.

        As you say, the actual legal impact is likely to be small. A similar 50’s law relating to cartoon violence was only tested once (and it lost). But it has already had a chilling effect within furry fandom.

        I am disappointed by the motivation behind the law – it was essentially created because police found a person who they thought was bad, but couldn’t convict him because none of the material he had was illegal (and they had to give it back).

        Inkbunny is hosted in the Netherlands. I am a UK citizen, currently residing in the U.S.

  3. Here in Italy nobody has ever been convicted for possession of lolicon hentai or cub porn, and there are Italian image boards where it gets posted, so it’s probably legal. But with Italian law you can never be sure. >_>

    Italian law is an odd beast: on paper it’s often very strict and a lot of things would be illegal in theory, but (as crazy as it sounds) many of our laws are stricter than they need to be because they are written assuming that the finer details will be ignored by people and the law will be technically broken most of the time. So the text leaves a lot of room for interpretation when somebody in the government decides it’s time to crack down (or to attack a political enemy). We are also notorious for slapping together terrible laws in response to a sudden emergency without thoroughly thinking whether the new law makes sense under normal circumstances.

    So basically it’s legal in Italy, but if a big scandal regarding drawn CP would happen it could become illegal overnight because of a more literal interpretation of the law.

    1. Scale, thanks for the input. That matches up with what I was able to glean – that the law tends to stay out of it unless there is something that garners wider attention, like Second Life.

      And those terrible, slapped-together laws? I think every country does that.

  4. In france, the picture or the representation of a minor in pornography is illegal: http://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=D865B9E2E6C15A1121DA404286219C75.tpdjo03v_2?cidTexte=LEGITEXT000006070719&idArticle=LEGIARTI000027811131&dateTexte=20130826&categorieLien=id#LEGIARTI000027811131

    Some people have fallen under the law for detaining lolicon, although the article of the law is ambiguous about totally fictive chars, and been condemned, and in on judgement, one angle of the defense had been that it’s similar to porno stuff with other imaginary char like smurfs. But the judges said that the smurfs don’t presents the physical characteristics of small children. Another angle had been that they’re not kids but super-deformed char, a japan drawing style, but they ruled that since the manga had been distributed in france, the average person can’t be expected to know this cultural context and that for the average person they look like kids due to their immature physical characteristics, their child-like faces and small size compared to the char they have sex with.
    http://www.legifrance.com/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000007640077&fastReqId=1684154803&fastPos=1

    So I think that when it comes to cubporn, the animalistic look might be enough to escape condemnation, but I wouldn’t like to be in the place of the one who would try to test it.

    1. Marz, thanks for the input, it is much appreciated. I think we can all agree that nobody would want to be the test case, in any country.

  5. Regarding Italian law, the main difference there is that cases have no actual legal value. No judge in Italy is required to look at or consider any other case in his decision. The lowest judge can make a ruling that goes against the highest Supreme court judge. In fact, if a Judge says he has looked at another previous case in his decision his ruling can be appealed.
    It is really important to remember that in places like Australia, USA, UK the law is applied from the meaning of the words at the time of the case. It is very rare for a court to look at the intention or purpose of a law. The law is what it says and it is not the place of judges to say what the law “should” be. It does happen, but that’s why you always hear about it; because it is so rare.
    The key definition is not ‘person’ or ‘child’, because you are not talking about a photo or something real. It is a cartoon (or drawing etc). The definition that decides the case of cub porn is whether the ‘child pornography’ law refers to children or child-like characteristics (anything that represents, or may be seen as a child).

  6. I guess that’s good info to let people know there own safety.

    Canada law is the most ridiculous one of all though to me (Didn’t read all), I think they need to re-look at the law and realize the difference between the fictional interest and actually illegally doing it, and to focus on the actions instead of focusing on fear of what could happen.
    I don’t want a person to go to jail for some fictional picture of something that would be illegal, Canada…

  7. In regards to American law, you would be right in saying it’s legal due to Ashcroft vs Free Speech, however, the story doesn’t end there…one aspect that complicates that manner is the PROTECT act of 2003, which was passed as a response to Ashcroft vs Free Speech, it states that computer generated or drawn porn is illegal if, quote, ” “(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).” End quote,
    Granted the law doesn’t address the question about whether is only applies to humans or not, but it throws the issue back into a legal gray area, it also makes the work illegal if it fails the Miller Test for obscenity, it’s considered obscene if it fulfills these three guidelines.
    1. Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
    2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
    3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

    One and two are fairly easy to decide, but three is left up to debate, overall I wonder if you took the PROTECT act into consideration whilst writing this article, it was written after the Supreme Court decision so it remains untested in courts for now.

    1. Hi J.P., thanks for the informed comment. I’m especially pleased because you’ve quoted two pieces of law that I researched but ended up cutting from the article to keep things succinct and readable.

      The key phrase in PROTECT is “virtually indistinguishable”. The act only applies to computer-generated images that look identical to non computer-generated images. So it covers a hypothetical case where real-looking child pornography has been computer-generated, or (more likely) post-processing has been used to obfuscate the legality of the pornography. So it doesn’t apply, and can’t apply, to cub porn as we would normally apply the term.

      As an aside, I love the word ‘prurient’, and I have been trying to use it as often as possible since I researched and wrote this article.

  8. I think that cartoon porn deplicting minors should be legal, as no minors were involved, though pics (including Photoshop shit as it can be used to cover up actual cp) and anything that documents child sex should be illegal.

    With zoophilic porn, my oppinions are the same and I am SUPRISED it is legal. (I thought they were able to get away with it on ED as it was for non erotic proposes)

    The toonphiles that got caught with shit such as simpsons rule 34 can go to hell.

  9. Sorry if I am late, but wasn’t there a law called the Protect ACT of 2003 (18 USC 1466A) that prohibited this kind of stuff? Wasn’t that the reason also why FA banned cub (and not to mention Sonic) porn?

    1. Hi FoG. Please note that I am not a legal expert, but this is my understanding.

      You can make all the laws you want in the United States, but they don’t mean anything if they are unconstitutional. Ashcroft vs Free Speech showed that simulated child pornography is unambiguously legal in the USA in absence of a new amendment to the constitution (that waters down the First Amendment).

      Protect is designed to cover three cases, which the US government doesn’t believe are adequately covered by law. (I’m quoting from Congress’s findings on the bill here). The three cases are:

      “(A) computer generate depictions of children that are indistinguishable from depictions of real children;
      (B) use parts of images of real children to create a composite image that is unidentifiable as a particular child and in a way that prevents even an expert from concluding that parts of images of real children were used; or
      (C) disguise pictures of real children being abused by making the image look computer-generated.”

      The concern is that images of children being abused are being shared, and that the outcome of Ashcroft means that the burden of proof is on the government to “prove beyond a reasonable doubt that the images are not computer-generated”.

      The language of Protect is more general than this, but it doesn’t matter: Protect doesn’t and can’t overrule Ashcroft.

      So my understanding is that cub porn is perfectly legal in the US. Again, I’m not a lawyer, but it looks like a simple enough conclusion to me.

      On FA and cub/Sonic porn: their ban was due to their payment processor (AlertPay), who cancelled their donations account citing concern with cub porn.

  10. You say cub porn is illegal in the UK?
    I do know cub porn is legal in the US…Although areas may exist where local law enforcement have their own interpretation…say in place like Okahpanokee in Harper Valley who knows where, or Hazard County, Tennessee.
    But what is ironic, Sofurry is in the UK, and cub porn is allowed on that site.
    And Furaffinity is in the US, and cub porn is strictly prohibited on FA.

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