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[content warning: discussion of stories about abuse, child porn, porn of teenagers]

I’ve gotten into a fair number of conversations recently about AO3’s way of dealing with controversial fanfics (i.e. you can use the standard archive warnings so people don’t have to see stories with rape or abuse or underage sex in it, but the moderators don’t delete fanfics), so I thought I should write up my thoughts on the subject.

Legal Issues

One controversial aspect of Archive of Our Own is the fact that they permit stories about underage people having sex with each other, which many people believe to be illegal in the US. Please note that I am not a lawyer and may have gotten many details wrong; I welcome corrections.

The current law which applies to child porn in the US is the PROTECT Act of 2003. Under the PROTECT Act, computer-generated child porn which is indistinguishable from a child is illegal, as are obscene drawings, sculptures, and photographs that depict underage people. Writing stories about underage people having sex is not illegal in the United States, so the vast majority of Archive of Our Own’s content is legally in the clear.

However, AO3 does occasionally host fanart, some of which may involve minors. Is that illegal? It’s unclear.

The Child Pornography Prevention Act of 1996, the previous law about child porn, was judged unconstitutional in Ashcroft v. Free Speech Coalition because it made illegal non-obscene visual depictions of minors having sex. The Supreme Court pointed out that this included Romeo and Juliet, and that it was generally a bad idea to make Shakespeare plays illegal; you can’t ban a bunch of protected speech because you don’t like it. However, the PROTECT Act only criminalizes obscene visual depictions of minors having sex.

A work is obscene if it fails the Miller test:

  • An average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.
  • The work depicts sexual content in a patently offensive way.
  • The work, taken as a whole, lacks serious artistic, literary, political, or scientific value.

So are the depictions of minors having sex on AO3 obscene? It’s unclear to me. There have been legal cases in which people have been prosecuted for cartoon child porn. However, many of them end in a plea deal, which means we don’t have evidence about how a judge would rule. So I think this is a gray area legally. (I have absolutely no legal grounds to support this, but I suspect the typical underage fanart on AO3– which depicts people who are canonically in high school but physically adult and often in canon played by adult actors– is going to be a lot less controversial than the lolicon that most of the case law is about.)

Should AO3 Delete Controversial Works?

I think that AO3 will not be able to delete controversial fanfics in a way that remotely satisfies the people asking them to do so.

First, AO3 is run by volunteers, which puts a limit on how much manpower they can devote to deleting controversial fanfiction. Fanfiction.net, a similar website, bans porn, but it’s not exactly difficult to find porn on Fanfiction.net. By eliminating tagging and incentivizing fanfiction writers to hide the content that might get deleted, it simply increases the likelihood that people who don’t want to see rape or abuse will see it anyway.

Second, there’s an enormous judgment problem with deleting fanfiction. Both broadness and narrowness have serious failure modes.

If your rules are too narrow, people will rules-lawyer their way around them. For instance, the website Literotica has a rule that all characters must be over the age of eighteen. Naturally, there are an improbable number of eighteen-year-old high-school students, and quite a lot of porn in which the lollipop-licking, pigtailed protagonist who doesn’t know what sex is mentions in the first paragraph that she’s eighteen. Obviously, this is not a satisfactory solution for people who don’t want underage porn to be written.

If your rules are too broad, a lot of things become judgment calls. I’m going to talk about something that’s a lot more clear-cut than abuse: one person I’ve talked to suggested that it’s homophobic to ship heterosexual ships with canonically gay characters, and that Archive of Our Own should remove such fanfic. This seems pretty simple: “is this character gay?” definitely seems a lot easier to figure out than “is this relationship abusive?”

So: what do we do about Willow? There is a loud and angry contingent of Buffy fans who believe that Willow is a lesbian who dated a man in high school because she hadn’t come out to herself yet, as many lesbians do. There is an equally loud and angry contingent of Buffy fans who believe that Willow is bisexual because of her obviously loving relationship with Oz, and that Joss Whedon has never heard of the concept of ‘bisexuality’. If you say Oz/Willow is homophobic, you going to get a bunch of people calling you a biphobe, and if you say it isn’t homophobic, you’re going to get a different bunch of people calling you a lesbophobe.

What do we do about Margot Verger? Margot is canonically a lesbian, but she also canonically has sex with Will Graham in order to conceive a Verger heir so that she can murder her abusive brother and get his inheritance. Will we delete fanfiction that explores the implications of something that happened in the show?

Or what about Messala from the movie Ben-Hur? According to the documentary the Celluloid Closet, the director intended Ben-Hur and Messala to have been in a gay relationship; he told the actor playing Messala, but did not tell Charlton Heston, because Charlton Heston was a homophobe. In that case, it’s difficult to tell if Ben-Hur and Messala were even in a canonical gay relationship, much less whether Messala is canonically gay himself. Wait, is it ahistorical to characterize someone as “canonically gay” in a time period with such a different understanding of sexuality? Okay, everyone, get out your Foucault and Halperin, we’re going to have to resolve one of the most fundamental arguments in queer theory before we can figure out which slash fic we’re going to delete…

And frankly “is this character gay?” is much easier to answer than “is this character in an abusive relationship?” A lot of abuse is subtle and contextual. Sometimes abusers call their partners names. Sometimes people’s preferred way of conflict resolution is shouting mean things at each other, and while that certainly isn’t what I’d prefer, these relationships can be perfectly happy and functional and the people involved can resolve their conflicts to their mutual satisfaction. Whether a scene in a story is an instance of the former or the latter is often very unclear, and different people can interpret it differently.

And you can’t trust that these judgment calls will be made in the way you prefer. The whole reason we’re having this discussion is that fandom, in general, has its head up its ass about what ‘abuse’ is. On Archive of Our Own, stalking, sexual coercion, and wildly unethical power dynamics are regularly depicted as romantic without so much as a warning. Even coffeeshop AUs, which are notoriously fluffy, light-hearted, and angst-free, regularly depict workplace sexual harassment– often to the point that it would be an EEOC violation in real life. If Archive of Our Own set about trying to delete all the abusive fic, the deletions would be made by the exact people who keep putting sexual harassment and stalking in all their light and fluffy fanfiction. I do not really trust this to have a positive outcome.

And then there are the people who think that all BDSM is abuse, and I don’t even want to know what trans-exclusive radical feminists would do with the ability to delete all femmeslash with a trans character on the grounds of being homophobic…

I think a much better strategy for people who want to reduce the rate of abusive relationships in fiction is attempting to convince others of their beliefs. This has been successful in the past: for instance, the We’re Not Gay We Just Love Each Other story genre has almost been eliminated. That happened because a lot of people wrote essays along the lines of “it is really fucked up and homophobic to think that men can’t be attractive and masculine if they’re gay, and also the word you’re looking for if someone is attracted to women and men is ‘bisexual’.” If you want people to not write fic in which workplace sexual harassment is depicted as romantic, I think it’s going to be a lot more effective to try to convince people than workplace sexual harassment is not romantic than it is to get those fics deleted.

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