Motonori Kishi was bemused when he was arrested in October on suspicion of distributing obscene material — despite the fact that his firm’s comic books feature uncensored scenes depicting sexual intercourse.

“I did not understand why only our publication was questioned when other publishers have issued unexpurgated sexual comics,” the 54-year-old publishing executive said.

Kishi, president of Tokyo-based Shobunkan Co., has been indicted on charges of selling obscene literature.

A cartoonist and the chief editor at Shobunkan were also arrested over their involvement in the writing and distribution of “Misshitsu” (“Honey Room”). They were released after they both paid a 500,000 yen fine based on a summary order.

The sale and distribution of obscene literature is prohibited under Article 175 of the Criminal Code.

Kishi’s trial is the first major case in 20 years in Japan to focus on printed pornographic material.

It is, moreover, the first time a comic book has been targeted under the penal code for containing obscene material.

During the trial at the Tokyo District Court, Kishi’s lawyers have summoned prominent scholars and critics to argue that Article 175 is unconstitutional.

They said it violates Article 21 of the Constitution, which guarantees freedom of assembly and association as well as speech, press and all other forms of expression.

It also states that, “No censorship shall be maintained, nor shall the secrecy of any means or communication be violated.”

Yasuhiro Okudaira, a professor emeritus at the University of Tokyo, told the court it is not up to government authorities to judge whether certain material is obscene, and any restrictions on expression are unconstitutional.

“The state power should not prohibit people from accessing certain forms of expressions if they want to,” he said.

Shinji Miyadai, an assistant professor at Tokyo Metropolitan University, meanwhile tried to alleviate concerns that pornographic material would have a direct causal impact on children.

He cited the absence of any scientific research showing that pornography alone has a “harmful impact” on youth. He stated that while sales of comic magazines and books, many of which contain sexual material, increased dramatically between 1980 and 1990, the number of juvenile rapists declined during the same period.

Defense lawyer Takashi Yamaguchi said: “If a publication is judged obscene, it becomes impossible for ordinary people to look through it. This means public debate over whether it is obscene is contained and people cannot examine the judgment of the authorities.

“This should not happen in a democratic society.”

Yamaguchi added that, even if Article 175 is indeed constitutional, “Honey Room” does not meet the three prerequisites for obscenity as stipulated under a 1957 Supreme Court ruling.

While Article 175 does not clearly define obscenity in legal terms, the top court illustrated these prerequisites in its ruling against the translator and publisher of “Lady Chatterley’s Lover” by D.H. Lawrence.

The ruling stated that a certain form of expression should be labeled obscene when it is “unnecessarily sexually stimulating, damages the normal sexual sense of shame of ordinary people, or is against good sexual moral principles.”

Yamaguchi said: “At present, we can view foreign hard-core pornographic material online. Who dares to say now that a comic is obscene?”

Over the past decade, the availability of sexual material in Japan has expanded dramatically.

“Hair nude” photos are ubiquitous features of weekly magazines, while major publishers have printed explicit wood block prints from the Edo Period without being targeted. Minors can purchase X-rated videos without having to show identification.

In comic book circles, sexually explicit material has been published for three or four years, Kishi said, adding, “My company is not the front-runner for such extreme publications.”

Moreover, Shobunkan publications are enclosed in plastic covers, with booksellers given stickers warning customers about the pornographic content.

These measures, undertaken at the company’s expense, are aimed at protecting unsuspecting consumers from being confronted with pornographic material by accident.

Kishi’s arrest has impacted the retail book business, with several major book stores having closed their pornography sections, Yamaguchi said.

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