Is Possessing RapeLay a Federal Crime in the United States?

Much has been written about RapeLay since the controversial Hentai game was discovered for sale on Amazon a few months back.

But while the debate thus far has largely centered around whether Japan, where RapeLay and most similar titles originate, should allow games featuring sexual violence to be published, a recent court ruling suggests that U.S. citizens who possess RapeLay and games of its ilk may be guilty of a federal offense.

Wired's Threat Level blog reports that on Monday the 4th U.S. Circuit Court of Appeals refused to consider the appeal of Dwight Whorley, a Virginia man who was convicted in U.S. District Court of possessing actual kiddie porn. But, under what is known as the 2003 Protect Act, prosecutors also charged Whorley with possessing manga which depicted minors having explicit sex. From the relevant section of the Protect Act:

Any person who... knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

 

(1) (A) depicts a minor engaging in sexually explicit conduct; and

(B) is obscene; or

(2) (A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and

(B) lacks serious literary, artistic, political, or scientific value... shall be subject to the penalties provided...

(c) Nonrequired Element of Offense.— It is not a required element of any offense under this section that the minor depicted actually exist.

Threat Level also cites a similar conviction against Christopher Handley, a comic book collector who imported sexually explicit manga containing illustrations of child sex abuse and bestiality. Unlike Whorley, Handley possessed no actual child pornography.

So how does this connect to the RapeLay situation? A [NSFW] review of the game posted on Something Awful describes graphic, forced sex with a mother and her two minor daughters, the youngest of whom appears to be about ten years old. Save for the fact that it's interactive, RapeLay is not much different from the type of hardcore manga which earned federal time for Whorley and Handley.

We should note that a single judge on the 4th Circuit dissented from the opinion upholding Whorley's conviction and urged that the case be sent to the U.S. Supreme Court. But for now, at least, owning a copy of RapeLay seems like a risky legal proposition, indeed.