Neuer Comment über das inkriminierte Nischenspiel: ‚The information regarding „Valkyrie Drive – Bhikkhuni“ in Germany provided in the video above is completely false. What „for UNCUT!“ meant was that the game would become an „index“ title WHEN it is considered youth pornography – as it was suggested by the OLJB (USK) when refusing its classification, because then it would get prosecuted under criminal conduct (list „B“). However, up to this point, the BPjM (or some courts) did not take any action. It’s unclear whether or not the game fulfills the criterias (Indizierungskriterien).
Amazon.de for example, is still selling the game (since its release last fall) https://www.amazon.de/Valkyrie-Drive-Bhikkhuni-AT-Pegi/dp/B01JHXYCN6/ There, I bought it myself on October 10.
And what they are selling is the European (PEGI) version of the game. The only thing is, that there is no digital download of the game (PS Vita) available in Germany – because those need a label by the USK (according to Sony’s rules).
Yet the actual status of the game is exactly the same as if it would have been labelled USK-18 („ab 18“, „Keine Jugendfreigabe“), as it is with all games in Germany without any USK-label. The only difference being that there is no legal compliance („Rechtssicherheit“ in German) for such titles and those titles CAN GET „indexed“ anytime.
It’s a mystery why the game is not on the „Index“. Likewise, concerning the other title, „Criminal Girls 2“. To put it in short terms: those two games are kept in hiatus.
Back in 2009, there may have been a similiar situation with both „Onechanbara“ titles released back then (on 360 and Wii). Although those may have never been in the classification process at all.
The only explanation concerning this „Valkyrie Drive“-game and „Crminal Girls 2“ is, that the parties involved (like publisher PQube) just wanted to spare the money the classification process costs – like a so-called „Appellationsverfahren“*.
By the way, the distributor in case was flashpoint from Hamburg (a member of the BIU**). Maybe flashpoint stopped all prior efforts of releasing those games in Germany properly/regularly.‘ Nachlese –
*oder, von Industrieseite aus, Berufungsverfahren noch bevor eine Freigabe erstmal feststeht;
Replik 14. Mai: ‚No. It’s impossible to treat a game „like indexed“, when it’s clearly not. The only exception being content that is „obvious“ („offensichtlich“) „severely harmful to minors“. And with this game, this is clearly not the case. Because of a myriad of things, among them the publishing history and the indifferent packaging compared to other Anime-titles. Otherwise any game depicting any form of „violence“, for example, could also be considered an „obvious“ criminal offense – because the depiction of violence is still a criminal offense in Germany. No, because this would also end in absurd consequences („Uferlosigkeit“/“Unverhältnismäßigkeit“), the distributor (like flashpoint from Hamburg – and rather not the publisher) got cold feet just because of the nature of the game’s content and stopped trying to market this title in Germany, just in fear regarding its (public) implications. It’s a simple form of sexual discrimination – again, compared to non-sexual violence for the matter. Therefore the OLJB can not decide whether the game is „severely harmful“, only the BPjM can. And „the display of underaged persons in certain postures (§ 15 Sec. 2 Nr. 4 JuSchG)“ IS already youth pornography, there is no other definition. Therefore sellers like Amazon.de are absoultely free to treat the game like any other title without any labelling by the USK, AND without (any) indexation by the BPjM. If a game is „severly harmful“ or not, is never a question that can be answered by any „Freiwillige Selbstkontrolle“ in Germany, for any (electronic) media. The competencies are stated very clear, otherwise the OLJB (or anybody else for that matter!) could call just about anything „severely harmful“. The only true sentence is the last one: ‚Even if the BPjM indexes it on list A, basically denying the aspects of violation of criminal law, its content could still be „severely harmful“ in nature.‘ That’s true. Sorry, but the rest is pure speculation und rather misinformed. By the way: „negative“ can also mean „absent“. There is no need for the BPjM to inform the public, when they came to „negative“ conclusions. The publisher/distributor can still decide to not release a game in a certain country, to postpone the labelling process and so forth.‘
15. Mai: ‚No, there is not „another definition“ – it’s just the difference between youth protection (Jugendschutz) and the criminal justice system (“Strafrecht”, “Strafvollzug”). Because the purpose of youth protection is NOT to punish minors.
To put it straight: the former is there to protect the youth, the latter is there to punish adults. Otherwise it makes no sense: once there actually was a situation like you describe it (perhaps unintentionally), when pedophiles could consume material that was only forbidden to minors, but not to them. So-called nudism (FKK) magazines in the late eighties and perhaps early nineties. Yet those days are long gone and everything done since then was – hopefully, from my ethical legal philosophy standpoint here – done to turn things around and not only protect minors from depictions of themselves, but to put an end to their exploitation. Therefore both, legal protection and penal law, are nowadays heavily intertwined (with terms like „Unnatürlichkeit“, „Geschlechtlichkeit“, „Haltung“ and so forth regarding this matter).
Because like you describe it, it would be fine to sell the game in an „adult entertainment“ sex shop for example. No.
This is not the intention meant – youth protection is just one outcome of the situation, not the situation itself. In a few words: sexualization of adults is not the problem, the game was not not-labelled because it is sexual in nature, but because it features a severe amount of sexualization of minors – at least according to the educated guess, or expert opinion, of the OLJB.
The discrimination of the content therefore can only be in the exaggeration of its content, when those games really are „only“ frivolous in nature – like the movie „Little Miss Sunshine“ for an even extreme example. But let’s assume, for the moment, the interpretation of the OLJB was right.
Obviousness (Evidenzklauseln) put a side, there are basically only two forms of material „harmful to minors“ known in Germany: simple stuff, „simply“ (einfach) and „severely“ harmful materials. Both are quite irrelevant not only here, but with the exception of movies in cinema (where films that are „einfach jugendgefährdend“ are treated as FSK-18), on the „index“ in general: both can get „indexed“ on list A (or secretly on C), as you already pointed out.
The difference lies, again, in the criminal justice system (penal law, trade laws) where the rules for adults are more strict and adults are not allowed, or are even less allowed for example, to grant minors access to „severely harmful“ material. It sounds self-evident, but It’s really important to understand that youth protection („Jugendschutzgesetz“, the JMStV, „Jugendmedienschutz-Staatsvertrag“, about broadcasts) is in the end not meant to effect adults, but to protect minors. Therefore the different approaches which should not get mixed-up.
For over ten years I’m writing in this field now, and it’s still fascinating to see how these things still get mixed-up. People still seem to think that youth protection is telling adults what to do, when it’s clearly not.
Ok, the situation looks complicated or „abstract“ at first, and a lot of youth protection actually seems to affect adults a lot, but on this level it’s just not meant that way: you can not prohibit something based on an assumption (!). When you ask them: the OLJB already told us what they think, but the BPjM will still need to proper look at it and make a final decision. Everything else is based on prejudice: the BPjM can and will not tell you “yes, if the OLJB says so, this game is severely harmful to minors” when only they are the ones who, in the end, can decide that. The possibility of self-evidence based on packaging or something is still another problem, but content cannot just “be” severely harmful, it has to be stated that way – by the proper authorities. And the OLJB is, as determined by the law, not the proper authority when it comes to matters of materials “harmful to minors”: because otherwise, you just cannot tell the difference between, let’s say, “Gal*Gun – Double Peace” (USK-16) and this title.‘