#also i hope this is coherent

Criminal Law, nsfw fic, and ao3 (pt. 1?)

So first a clarification, this will be regarding US federal law because ao3 is hosted in the US and thus US law would apply to any legal cases. I am not well-versed in other countries’ laws so I am unsure if similar situations would be the same under those laws. I’m also going to be using federal law when I can because I do not have the patience nor time to look at the millions of different state and territory criminal codes that exist.

tw pedophilia, child abuse, sexual exploitation, rape, etc. 

I wanted to do a piece on (you guessed it) what the title is about. Recently we’ve been seeing a lot of rhetoric arguing against the ability for nsfw fic to exist in fandoms originally marketed as kids shows (but also other fandoms). 

First, I’ve seen accusations of pedophilia towards adults that do write such fic and then arguments saying “semantics” don’t help the situation. I think that first and foremost there should be the realization that “semantics” are how the world operates. The law operates in semantics, really petty semantics but semantics nonetheless, and in debate word choice and clarity are what matters most (I personally suck at debate so I hope this is clear). 

[I’m going to get into the whole issue of morality v legality later dw]

Pedophilia, in criminal law, does not actually exist as a piece of law. Instead what is considered pedophilia falls into two main categories: sexual exploitation of minors and statutory rape. Federally, sexual exploitation of minors (18 U.S. Code § 2251 - Sexual exploitation of children), which includes child pornography, refers to visual depiction of minors in sexual situations (this is a vast oversimplification that works for this purpose) - I believe that state/territory criminal code is similar in the main points. To my understanding, it specifies visual depictions because those images/videos are permanent with the state of the internet today and can negatively impact that individual. Visual depictions show an individual’s face in a way that other media forms do not. 

Criminal law is charged with protecting people who exist in the real world and can be negatively affected by something. 

This is not to say that writing underage sex is not a bad thing (I do believe that it is) but to say that accusing someone of pedophilia/child pornography/etc. is not right and can have a negative impact for people’s irl lives. 

If writing pedophilia/statutory rape was illegal (it is not), many forms of media (books, tv, movies) would be impacted (e.g. riverdale, easy a, secret life of the American teenager, gossip girl, euphoria, pretty little liars, 90210, one tree hill, Lolita, skins, prep, the twilight series, perks of being a wallflower, vampire academy, and many, many more). The crux of the matter is really: is it a visual depiction, and is it a real life person. 

And now we get into the legality vsmorality bit. We’ve established that it’s not a  crime, nor is it against ao3′s TOS. 

Morality seems to be the case that most people are making regarding nsfw content of characters that were underage in their canon material. 

The case here is a little more grey rather than black and white and I firmly believe that we can all go around in circles arguing about it because it is grey. You might think it’s immoral to write nsfw content (whether it’s smut, gore, etc.) of characters that were underage in their source material (though I ask you to realize that people age, fictional and not, and perspective change with it), but those are your morals. And while you can attempt to convince people otherwise, it is not right to force people to ascribe to your morality over something as trivial as fanworks. Other topics would definitely have me saying otherwise, but these are fanworks. They’re meant to be a way for people to explore themes and content in different ways  

Here’s the other crux of the matter, characters are fictional. They can age. Their creators have aged and are exploring themes interesting and important to them through their content. You might not want to see nsfw content, and you don’t have to. Many creators don’t want their nsfw content viewed by people who don’t want to engage with it (for whatever reason) or underage people. And there are ways to not see that content, which people should employ.

[The internet is a place where this kind of content exists, has always existed, and should always be able to host because otherwise the implications for free speech, etc, are terrible - which I may tackle next.]

The moral and legal argument kind of sucks and I get it, I don’t want to see nsfw sexual content sometimes (for various reasons, and I did engage with it as a minor) and I take steps to ensure that I won’t (through blocking tags, filtering them, etc.) when I feel that way. 

And one last thing, I am sorry to say that underage people have sex (the objective proof for that would be teenage pregnancy). It happens (because of a lot of different shit that’s a whole different topic) and its not bad. Consent is important and will always be sexy but the view that sex is always a bad thing comes from conservative voices (and other things i’m not particularly well-versed in so i won’t go further into). Sex is not bad. Sex is normal. And people should be free to explore it in whatever way they like (as long as it is legal, safe, and healthy).

[And in my opinion, fanworks can be a healthy(er) way to explore sex. As a minor, the sex ed I got was atrocious and fic actually taught me a lot. But by choosing to engage in that material (even just choosing to be able to view it), I knew what I was getting into. If you don’t wish to see it, block it, don’t look for it, and utilize filters.]