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Virginia Court Convicts Man for Violating Supervised Release Terms With 'Anime Child Pornography'

A Virginia court upheld a guilty verdict in August against defendant Elmer Emmanuel Eychaner III on several counts, including violating the terms of his supervised release by searching for "anime child pornography."

Eychaner was forbidden from viewing any pornographic material as part of the terms of his supervised release from prison in 2016. In March 2008, following a guilty plea for possession of child pornography, Eychaner was sentenced to 120 months imprisonment and lifetime supervision. As conditions of his release, he was barred from accessing the internet without approval from his probation officer and from accessing pornographic material or any pictures of children.

However, Eychaner used his supervised computer to search for what the court describes as "anime images depicting children engaged in sexual activity," and he later confessed this to his probation officer. He also said he had thrown his hard drive down a storm drain because he claimed he was "angry at his computer," and described it as "the danger zone."

Eychaner was charged with five counts, including attempted acquisition of child pornography and attempted evidence tampering, in August 2017. The court returned guilty verdicts for four of the five counts in May 2018.

Eychaner challenged the conviction on several fronts. The defense contested the claims that there was enough evidence to say the images submitted to evidence depict "minors as opposed to youthful-looking characters," and that "the minors depicted are engaged in sexually explicit conduct." However, the court determined that there was sufficient evidence to conclude that the images do portray children engaged in sexual acts.

The defendant also contested the claims that the images qualified as obscene. To provide judgment on this matter, the court used the precedent Miller v. California, which outlines a three-part test for determining if a work is obscene:

1. The average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest
2. The average person, applying contemporary community standards, would find that the material depicts or describes sexual conduct in a patently offensive way
3. A reasonable person would find, taking the material as a whole, that it lacks serious literary, artistic, political or scientific value

The sole witness for the defense was Dr. Kirsten Cather Fischer, author of The Art of Censorship in Postwar Japan. Fischer defined terms such as manga, anime, hentai, lolicon, shotacon, and toddlercon for the court, and provided other contextual details about manga and its history. She testified that in her opinion there can be serious value in works of lolicon, shotacon, and toddlercon, but the prosecutors challenged this view.

While the defendant claimed that the court should seek out the broader manga work to determine if the work "as a whole" had value, the prosecutors took the position that only the images searched by Eychaner need be considered. The court determined that if the images are presented online without indication that they come from a larger work, then they can be considered isolated images.

Ultimately the court determined that there was sufficient evidence to find the images obscene and upheld the conviction against Eychaner for attempted acquisition of child pornography. The court also upheld his convictions for evidence tampering and for destroying an object to impede an investigation.

However, the court did dismiss a fourth count against Eychaner. Under this count, Eychaner would have received an additional term of imprisonment for his conviction on any "felony offense involving a minor" because he was already required to register as a sex offender. The prosecutors argued this wording can refer to both actual and non-actual minors, but the court ruled that the "involving a minor" element was not met as no actual minors were involved.

Eychaner was sentenced on August 23 to a prison term of 235 months (about 20 years), with a subsequent supervised release period of five years.

Sources: Leagle, PACER via Mikhail Koulikov