BASTIEN VIVES. A preliminary investigation has been opened against Bastien Vivès and two publishing houses for the dissemination of child pornography images, we learned on January 6. What risks the author of comics?
This is a new step that has been taken in the Bastien Vivès case. The comic book author is the subject of a preliminary investigation for the dissemination of child pornography images, the Nanterre prosecution said. The judicial information was opened this week, three weeks after the heated controversy around three works by the 38-year-old designer. Three complaints were filed against the artist and two publishing houses, Glénat and Les Requins hammers, which published the offending books, during the month of December for the dissemination of child pornography images “but also “incitement to the commission of “sexual assault on minors” and “dissemination to a minor of violent messages”. The last counts have not yet been retained by justice.
What does Bastien Vivès risk if his comics are deemed illegal?
if the three decried comics by Bastien Vivès are characterized as child pornography at the end of the investigation opened for “dissemination of child pornography images” then the author could incur a fine of up to 75,000 euros and 5 years of prison according to the article article 227-23 of the Penal Code. But if the investigation extends to the other counts taken up by the various complaints, the author will incur heavier penalties. In addition to being considered child pornography, the boards of Bastien Vivès trivialize the sexual abuse of minors according to the complaint of the association Innocence in danger which denounces “a provocation to the commission of sexual abuse of minors for fragile people who might think that such relationships are the norm”. This is a fact punishable by 5 years in prison and a fine of 45,000 euros.
Which comics by Bastien Vivès are suspected of being child pornography?
The three works signed Bastien Vivès which are the subject of the investigation by the Nanterre prosecutor’s office, are the same as those which were talked about, most often on bad terms, in December 2022. Melons of anger (2011) and The Mental Dump (2018) from the “BD CUL” collection of Hammerhead Sharks as well as Little Paul (2018) are the comics that do not pass to the public, in particular child protection associations – one of which, the IED, had filed a complaint – studied by the courts. And the magistrates are interested in boards in particular, those which represent sex scenes involving children. Bastien Vivès’ book La Décharge mentale puts to paper the fictional story of a couple who have incestuous relationships with their daughters aged 18, 15 and 10. In the other two graphic novels, it is the character of Paul, a young child endowed with a disproportionately large penis who is drawn in scenes of fellatio and/or “rape” performed by his teacher, his sister and his judo teacher. In its complaint filed with the public prosecutor of Paris, the association concludes that “these boards show many minors abused or exhibiting their intimacy” and that as such they correspond to child pornography representations. Will the courts come to the same conclusions?
The Bastien Vives case
Are the pornographic comics of Bastien Vivès illegal?
The phonographic nature of the three comics called into question by the IED’s complaint is beyond doubt. Bastien Vivès himself recognizes that his drawings are not suitable for minors and recalled in a press release published on December 15 that all were sold “in blister packs, with a warning and a ban for those under 18”. But talking about pornography comes down to circumventing the problem because the incriminated comic strips represent minors during sexual acts, for some incestuous, and therefore illegal, and for others possibly carried out under duress. The child protection association sees scenes of rape in the pages of the Little Paulfor example.
Without dwelling on the illegality of the scenes represented, the simple fact of drawing children in situations of a sexual nature is child pornography and falls under thearticle 227-23 of the Penal Code. Which punishes “the fact, with a view to its dissemination, of fixing, recording or transmitting the image or representation of a minor when this image or this representation is of a pornographic nature”. And the law does not provide for any exception to these representations, as pointed out by IED’s lawyer and author of the complaint, Delphine Girard, in The Parisian. According to her, the article of the Penal Code intends “a fairly broad representation, which also concerns works of the mind, representations of the child whether they are imaginary or not, photographed or drawn, in a situation of sexualized behavior or when dealing with adults”. And Guillaume Beaussonie, professor of criminal law at the University of Toulouse, to add: “The text does not provide for an exception. There is no hypothesis in which an artistic exception could be authorized”.
However, Thomas Perroud, professor of public law at Panthéon-Assas University and co-delegate of the Observatory of Creative Freedom, offers another interpretation of article 227-23. Near Mediapart, he judges that “this text, necessary in that it aims to punish people exploiting the vulnerability of a child by forcing them to carry out pornographic scenes in front of a camera or a camera, becomes problematic if it also targets all representations relating to the plastic arts (drawing, painting, engraving and sculpture) which are content to show”. The professor takes up the author’s line of defense according to which “representing the sexual violence suffered by a child, for example, is not necessarily to glorify it.”
Bastien Vivès’ comics protected by freedom of expression?
And what about freedom of expression? This is the main argument used by Bastien Vivès and by other authors who defend their colleague, father of Little Paul. And rightly so since, as Thomas Perroud reminds us: “In terms of the creation and distribution of works, the rule is freedom.” Freedom of expression is good an essential right, central in matters affecting the artistic field and laid down by several texts including theArticle 10 of the European Convention on Human Rights (ECHR). This argument is also taken up by Agnès Tricoire, lawyer at the court of Paris and delegate of the Observatory of the freedom of creation, whose remarks are transcribed by France info and who considers that if article 227-23 of the Penal Code can be used, it must be so “proportionate” according to the degree of fiction of the representation of the minor and according to the intention of the author. And this is where the rub could hurt.
If Bastien Vivès denies in his press release of December 15 any bad intention behind his drawings and his comics, the complaints filed against him are also based on dubious statements by the author. In particular the one made in a video for the media miss in 2017: “Me, incest excites me to death. […] Since I can’t do incest in real life and I don’t have a big sister to be able to do that, I do that in my books.” So the question is: the judge if he’s seized of the case will he identify the intention of the author and the meaning of the decried images? Delphine Girard, lawyer for IED anticipates in Mediapart again: I think Bastien Vivès is going to explain to the judge that he has enlarged the line, that it was humorous or that it was inspired by manga. But, faced with the crudeness and cruelty of the scenes, it doesn’t hold up. […] There is no artistic freedom in this case as these images clearly show minors being sexually abused.”
It should also be noted that if freedom of expression is queen, the exercise of this right may be limited in particular by “the defense of order and the prevention of crime, the protection of health or morals” , as also provided for in Article 10 of the ECHR. However, the legal and moral questions are those raised by the Vivès case.
Legal, but also moral questions on the Bastien Vivès case
The controversy around Bastien Vivès is complex and plays out on several levels. If from an artistic point of view the author and some of his colleagues support freedom of expression, the certainly strong argument comes into opposition with what is legal or not to represent, as explained above. It is up to justice, if it takes up the case after the plain of IED targeting Bastien Vivès, to decide on this point. But other questions raised are more of a moral order: is it correct or not to represent minors in scenes of a sexual nature like the author of the Little Paul the fact ? Do these drawings fuel or incite pedophile acts?
If for the associations which fight against sexual violence and incest see all the harm that these drawings could cause in the hands of victims or people likely to see in them a form of normality or even approval, others consider that a drawing cannot be the cause of an evil or an amoral impulse. According to them, the image only expresses and sometimes relieves these impulses to prevent the desire from being realized in real life and can in no way incite it. All of these sensitive topics and questions were raised in 2018 with a closed report without follow-up. A person who had “personally known victims of incest” expressed concern “about the possible use of this child pornography material by aggressors, with the aim of convincing the child that pedocrime is good, it’s is normal, it’s ‘fun'”, reports France info. But in “the absence of offense”, the report had not succeeded.
A denial and an apology for Bastien Vivès
If everything seems against him, even some of his own statements, Bastien Vivès ended up speaking out on the controversy. In a statement with the air of mea culpa published on December 15 on its instagram account, the comic book author firmly denies the accusations against him and “condemns paedocriminality, as well as its apology and trivialization” as well as “the culture of rape and violence against women”. The man also defends his work and his boards which “evokes[nt] the birth of feelings of love and desire” in a form of expression that falls under the “humorous burlesque genre”. A tone that Bastien Vivès says he likes and regularly repeats in interviews, one can imagine that he is referring here to his exit in miss aforementioned. “At no time did I want to hurt victims of crimes and sexual abuse,” he added. As for the distribution of pornographic content accessible to minors, the artist specifies that his “four so-called ‘pornographic’ books are sold in bookstores in blister packs, with a warning and a ban for those under 18”.