This is Hotaru Shidare the 17-year-old heroine of the anime series Dagashi Kashi
@CCPcel got me analyzing https://www.law.cornell.edu/uscode/text/18/2256
1a defines "sexually explicit conduct" as "actual or simulated" then a list of five things, the 1st on the list is "sexual intercourse" which includes "oral-genital" (ie fellatio).
So if the law considers fellatio to be 'sexual intercourse' and she is 'simulating' sexual intercourse via miming sucking an invisible penis, it appears this would qualify as "sexually explicit conduct" in the 1st degree.
One thing I omitted about (A) though is there is a "Except as provided in subparagraph (B)" clause at the start. So we need to look at the next part to figure out what those provisions are.
Subparagraph B reads "For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—" and the 1st part of B references 'simulated sexual intercourse' as follows.
I don't think this would not apply as you do not see a penis here, it is an imaginary penis. Nor do you see Hotaru's pubic area.
"Breast" might be the one part someone could nitpick about. What if it showed cleavage? Conveniently here she is buttoned up to the neck so at worst you see the silhouette of her breast bot not her actual breast.
It does beg the question "how much of the breast" though. Would even an inch below the clavicle of a woman whose nipples were at her knees qualify? It really ought to say 'nipple of breast' but doesn't get that specific.
Since it says "any person" if I pasted a picture of an adult man's penis next to Hotaru (even if she was making no physical contact with it) it seems like it would fulfill (b1) removing the override clause for subsection 8. So the image I posted would not be "sexually explicit conduct" (thus legal) but would become SEC if a penis was pasted anywhere in the image, even if the oral-genital intercourse (fellatio) did not involve the literal penis but the imaginary invisible-air penis. Seems a tad absurd.
8's "any visual depiction" broadness for "sexually explicit conduct" covers 3 sections (A/B/C) and it seems like you need to fulfill all three. Clause A would not apply to anything except depiction of real humans, since they use the term "minor" which AFAIK only refers to IRL ones.
definition of minor says "any person under" which I would assume to refer to https://en.wikipedia.org/wiki/Natural_person as opposed to a "legal person" or "fictitious person" or else it'd be illegal to make porn based on the personification of Twitter since Twitter is only 15 years old. Presumably this applies to any fictional character too. The phrase "involves the use of" I think means it actually has to have happened. IE if you recorded Greta Thunberg at 17 giving head, that would be fulfill section A, but if you just imagined her giving head and drew that imagination, it would not fulfill section A.
8c also uses the phrase "identifiable minor", which section 9 elaborates on. 9B emphasizes you don't need "proof of the actual identity" (ie you don't need to prove Hotaru Shidare is a real girl - obviously you cannot) but 9A does require establishing they are a "person" so I think if you can prove they are a fictional character that would prove they are a non-person, at least in the sense of not being a 'natural person' even if they might fill some 'fictitious person' clause like how Twitter is technically a person.
9)a)i)I "was a minor at the time" for example, could clearly be disproven if you had proof of when a fictitious person was created. The Simpsons (1989) created Lisa 33 years ago, for example, so any porn drawn of Lisa after 2002 could not be constructed as CP since she had been a "fictitious person" for 19+ years.
I would obviously not post hentai of Lisa here on the forums due to the new 2022 rules though, as she could be construed as pre-pubescent. I'm exploring the possibility that maybe it's legal under US law but recognize that incels.is has content standards more restrictive than American law (like banning foids and fags)
I'm less sure in the case of Hotaru Shidare though. Although she is probably a decade older than Lisa Simpson in terms of her canonical age, her age as a legal person would be 8 years old since the manga Dagashi Kashi began in June 2014.
So ironically enough, it seems like an image of Hotaru Shidare simulating fellatio might be more CP-adjacent (if I pasted a penis next to her) than one of Lisa Simpson simulating fellatio. Courts might more readily make the argument that Hotaru (a 17 year old introduced 8 years ago) is a "minor legal person" than Lisa (an 8 year old introduced 33 years ago) is.
9Aii's "recognizable as an actual person" however seems like it might legalize both instances. I don't think you could make the argument that Hotaru is recognizable as an actual person since AFAIK she is not based on any real person.
One thing I'm confused about though is what tehy mean by 'recognizable'. Does this merely refer to name, like if it shares the name or facsimile/features unique to a person?
8B's "is indistinguishable from" is explained on 11: "the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor "
I don't think anyone would conclude that Hotaru Shidare is an actual minor... but then there's this weird-ass part at the end of 11 which seems to take the teeth out of it:
This leaves me wondering - what depictions DOES it apply to? I actually don't understand what situation (11) is written to exclude - it only talks about what it doesn't apply to, but not what it does apply to.
@CCPcel got me analyzing https://www.law.cornell.edu/uscode/text/18/2256
1a defines "sexually explicit conduct" as "actual or simulated" then a list of five things, the 1st on the list is "sexual intercourse" which includes "oral-genital" (ie fellatio).
So if the law considers fellatio to be 'sexual intercourse' and she is 'simulating' sexual intercourse via miming sucking an invisible penis, it appears this would qualify as "sexually explicit conduct" in the 1st degree.
One thing I omitted about (A) though is there is a "Except as provided in subparagraph (B)" clause at the start. So we need to look at the next part to figure out what those provisions are.
Subparagraph B reads "For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—" and the 1st part of B references 'simulated sexual intercourse' as follows.
1) "lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited"
I don't think this would not apply as you do not see a penis here, it is an imaginary penis. Nor do you see Hotaru's pubic area.
"Breast" might be the one part someone could nitpick about. What if it showed cleavage? Conveniently here she is buttoned up to the neck so at worst you see the silhouette of her breast bot not her actual breast.
It does beg the question "how much of the breast" though. Would even an inch below the clavicle of a woman whose nipples were at her knees qualify? It really ought to say 'nipple of breast' but doesn't get that specific.
Since it says "any person" if I pasted a picture of an adult man's penis next to Hotaru (even if she was making no physical contact with it) it seems like it would fulfill (b1) removing the override clause for subsection 8. So the image I posted would not be "sexually explicit conduct" (thus legal) but would become SEC if a penis was pasted anywhere in the image, even if the oral-genital intercourse (fellatio) did not involve the literal penis but the imaginary invisible-air penis. Seems a tad absurd.
8's "any visual depiction" broadness for "sexually explicit conduct" covers 3 sections (A/B/C) and it seems like you need to fulfill all three. Clause A would not apply to anything except depiction of real humans, since they use the term "minor" which AFAIK only refers to IRL ones.
definition of minor says "any person under" which I would assume to refer to https://en.wikipedia.org/wiki/Natural_person as opposed to a "legal person" or "fictitious person" or else it'd be illegal to make porn based on the personification of Twitter since Twitter is only 15 years old. Presumably this applies to any fictional character too. The phrase "involves the use of" I think means it actually has to have happened. IE if you recorded Greta Thunberg at 17 giving head, that would be fulfill section A, but if you just imagined her giving head and drew that imagination, it would not fulfill section A.
8c also uses the phrase "identifiable minor", which section 9 elaborates on. 9B emphasizes you don't need "proof of the actual identity" (ie you don't need to prove Hotaru Shidare is a real girl - obviously you cannot) but 9A does require establishing they are a "person" so I think if you can prove they are a fictional character that would prove they are a non-person, at least in the sense of not being a 'natural person' even if they might fill some 'fictitious person' clause like how Twitter is technically a person.
9)a)i)I "was a minor at the time" for example, could clearly be disproven if you had proof of when a fictitious person was created. The Simpsons (1989) created Lisa 33 years ago, for example, so any porn drawn of Lisa after 2002 could not be constructed as CP since she had been a "fictitious person" for 19+ years.
I would obviously not post hentai of Lisa here on the forums due to the new 2022 rules though, as she could be construed as pre-pubescent. I'm exploring the possibility that maybe it's legal under US law but recognize that incels.is has content standards more restrictive than American law (like banning foids and fags)
I'm less sure in the case of Hotaru Shidare though. Although she is probably a decade older than Lisa Simpson in terms of her canonical age, her age as a legal person would be 8 years old since the manga Dagashi Kashi began in June 2014.
So ironically enough, it seems like an image of Hotaru Shidare simulating fellatio might be more CP-adjacent (if I pasted a penis next to her) than one of Lisa Simpson simulating fellatio. Courts might more readily make the argument that Hotaru (a 17 year old introduced 8 years ago) is a "minor legal person" than Lisa (an 8 year old introduced 33 years ago) is.
9Aii's "recognizable as an actual person" however seems like it might legalize both instances. I don't think you could make the argument that Hotaru is recognizable as an actual person since AFAIK she is not based on any real person.
One thing I'm confused about though is what tehy mean by 'recognizable'. Does this merely refer to name, like if it shares the name or facsimile/features unique to a person?
8B's "is indistinguishable from" is explained on 11: "the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor "
I don't think anyone would conclude that Hotaru Shidare is an actual minor... but then there's this weird-ass part at the end of 11 which seems to take the teeth out of it:
"This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults."
This leaves me wondering - what depictions DOES it apply to? I actually don't understand what situation (11) is written to exclude - it only talks about what it doesn't apply to, but not what it does apply to.
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