Child Pornography and the Internet: The Technological Trafficking of Children

Introduction

People say that if you look the world through the eyes of a child you will see a better world, simpler, more beautiful; what we do not say enough is that children are part of our world, of what we created, and what others created before us.  If the world is a shattered place, the child will suffer, probably more than us.  The issue of child pornography is an issue which affects the child depriving her/him from the respect every other citizen enjoys, yet very rarely, if ever, this problem is portrayed as an issue of respect.  The aim of this paper is to provide a critical assessment of the laws adopted for combating child pornography, illustrate the additional difficulties of locating and bringing to justice the offenders in light of the new technological advances and propose a scheme of co-regulation in the international community between states, internet providers, and NGOs. 

In the year of 2010 the Internet Watch Foundation was called to take action against 16.739 WebPages across 41 different countries, mostly countries with developed technological infrastructures.[1]  This figure shows that the problem of child pornography is not something that can be disregarded or dealt with sufficiently at domestic level.  Special regard should be given to the commercial dimension of the problem.  Internet Watch Foundation identified 715 sources of commercial child sexual abuse websites, each being a gateway to hundreds of images and videos of child pornography.[2]  Of these images, 65.6% depict sexual activity between adults and children and include rape and sexual torture of the child.[3]

Before I continue with my analysis I would like to note that despite the fact that a child is defined in the CRC as a person below the age of eighteen unless, according to domestic legislation, maturity is achieved earlier,[4] I will limit this paper to (school)children below the age of ten, for two main reasons.  Firstly, the older the child, the more issues of consent are raised and that would require an examination of the child’s right to autonomy.  While acknowledging that this is an important issue, it is not the focus of this paper.  Furthermore, according to the IWF, the vast majority of the victims of child pornography (73%) are children under ten.[5] .

In order to provide a comprehensive account of the laws on pornography I first analyse the social constructions of childhood that influence and sometimes provide the basis for the formulation of such laws.  In the next section I analyse the social construction of childhood as innocent and the degree to which this construction threatens children with further exploitation.  It is my argument that although children are socially constructed as innocent this by itself does not defeat the current laws on pornography and that the actual threat, as far as pornography is concerned, is posed not by constructing childhood as innocent, but by sexualising that innocence.

Childhood Innocence

As many other concepts today, childhood is socially constructed.  That is not to say that no real childhood exists but there is a widely accepted belief about the qualities childhood entails.  The construction of childhood as innocence is an epistemological one; it is our attempt to make sense of what childhood actually is, and as every other epistemological construction it is based less on what childhood actually is and more on what we think it is, drawing on influences such as our culture. 

Childhood innocence is the dominant image of children in western societies.[6]  It emerged from the Christian ideal, posing the child as closer to God and to nature, pure and guiltless.[7]  This image emerging from a reading of the Bible[8] was reinforced at the 18th century by Rousseau’s “Emile” where it was stated that everything is created good and it degenerates in the hands of man;[9] this in turn led to the dominant presumption of the 21st century that all children are innocent, and therefore we must protect their welfare and criminalise everything that has the potential of robbing them of this innocence, and consequently their childhood.

This construction is particularly problematic if you couple it with what we perceive as being innocent.  Innocence is first and foremost sexual innocence and consequently this lack of knowledge about sexuality is children’s distinctive feature.  As Christine Piper argues, the very fact that children are presumed to lack knowledge about sexuality leads to childhood being sexualised.[10]  Although naturally the word innocence does not include any notion of sexuality, in modern times by saying “innocent” we mean “asexual” and this can make childhood sexually attractive thus exposing children to even greater danger. 

This danger is further exacerbated by the way the media and the entertainment industry present children.  As Joan Conrad argues the image of the sexualised child has emerged in the advertising industry, regardless of denials of childhood sexuality in western cultures.[11]  Children are posed as innocent and yet sexual in commercial advertisements, films and beauty pageants[12] and they are objectified by the very people that are supposed to protect them. 

And here lies a danger, even greater than those described above.  Childhood innocence is, in our minds, the only sacred thing that is left in a society threatened by decay.  The last asexual thing that is left in a society with a growing sexual fascination about everything is the child.  We spend a substantial amount of our lives claiming to protect children from anything that can cost them their childhood and we focus on abuse cases and cases of murders of children, trying to find who is to blame.  And the answer is always the paedophile, the monstrous child murderer, the child prostitute, but not us, never us, never our society. A very good example of this is the case of Thompson and Venables[13] where child defendants were presented as less than human, monstrous with only a remote resemblance to real children.  My argument is, that what we ought to do is to realise that children live in a society we have created for them and most importantly without their participation.  Innocence does not go hand in hand with the society that we have created and the result is that the children who are the most victimised by the society are the ones that are excluded from the protection of the law due to “loss of innocence”.  This is the greatest danger of innocence.  In a sense what we are doing is protecting the image of the child we have in our minds and not the real child that is in need of protection and this is done for our benefit, because we refuse to admit that we cause the corruption we are so afraid of.  In this process the real child “is to be seen and not heard and its mute and absented body can be easily confused and replaced by imagined representations”.[14]

Although this image of the sexualised, innocent child is harmful, we should not be naive in believing that it can be easily abandoned.  As I have explained this image is the result of a culture developed through many centuries and it is maintained today by the media that more or less control our lives.  The first step towards the abandonment of such conceptions is to change the image of children as presented through the media and place more emphasis on the education of children and their autonomy.  Having said that, it is important to emphasise that as harmful as this construction may be, I do not believe that it renders pornography laws ineffective.  The emphasis when talking about child pornography should shift from notions of innocence to the notion of respect, but this can be done even under the laws that were formulated in light of the construction of childhood innocence.  By focusing on the constructions of childhood we divert attention from the fact that children really are victimised “not by discourse but by abuse”[15].  Child pornography is a real problem, affecting real children and that is where our attention should turn.  Although I will use some of the analysis of childhood innocence in the next section of this paper in an attempt to define what is pornography and the line between pornography and art, I emphasise that I do not believe that the current laws on child pornography should be abandoned for this reason.

 

Definition of Pornography:  What is Pornography and what Art?

The definition of what exactly amounts to pornography is not easy, and while everyone agrees that child pornography is despicable and should be criminalised, not everyone agrees as to what amounts to child pornography or pornography in general.  The difficulty to define pornography is illustrated by the fact that under English law there has been no definition of it and until recently there had been no reference to “child pornography” but rather to the vague standards of obscenity and indecency.[16]  Due to this uncertainty that surrounds the definition of pornography there are also questions as to what distinguishes pornography from art and specifically photography.  It is in this discussion that this section focuses in an attempt to show that the panic that revolves around certain photographs of children is deeply linked, not so much to the context of the photographs as it should, but rather to the sexualisation of our culture and as a consequence to the sexualisation of the child. 

The first artist whose photographs I will use to analyse this position is, perhaps unsurprisingly, Robert Mapplethorpe.  Mapplethorpe is one of the most controversial artists in the history of photography after an exhibition of his photographs called “The Perfect Moment” was cancelled in Washington D.C. and led to the arrest and trial of the director based on claims that the exhibition included images of sadomasochism, homoeroticism and child pornography.  Although the director was later acquitted (the jury believing the art experts who testified as to the artistic value of Mapplethorpe’s photographs)[17] this fired a debate which led to the Congress passing in 1989 a law that barred the use of funds of the National Endowment of Arts to “promote, disseminate or produce materials which may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value”.[18]  In essence due to this climate that surrounds Mapplethorpe’s work it is almost impossible to speak of his photographs without addressing the wider issues of democracy, censorship and most importantly for our purpose the legal relationship between art and child pornography. 

Arthur Danto asserts that there is an inherent relationship of trust between the artist and his subject[19] (something that distinguishes art from pornography) but this becomes problematic in the case of children.  One of the most controversial photographs of Mapplethorpe, which appeared in the “Perfect Moment”, is the photograph of a girl named “Rosie” which shows the girl sitting on a bench with her dress pulled up in a way that reveals her genitals.[20]  One line of argument that was advanced against this photograph was drawn from the feminist critique of pornography made by Andrea Dworkin and Catherine MacKinnon who formulated the Minnesota Ordinance which stated that pornography is a violation of the subject’s civil rights.[21]  According to this ordinance, pornography is the “graphic sexually explicit subordination of [children] through pictures and/or words” that includes one or more of a list of factors including the presentation of children as dehumanised sexual objects, humiliated or in pain, rape, incest or sexual assault.  This was used in the case of Mapplethorpe to further the claim that this picture, just by reason of its being taken, subordinates its subject and can lead to episodes and instances of violence against children.  This argument was also used in passing the law about the public funding of controversial art, discussed above.[22]  This argument, however, does little to explain why Mapplethorpe’s photograph of “Rosie” was in fact pornographic.  The way it was used by Mapplethorpe’s critics to attack the photograph is, I believe, a misconception of MacKinnon and Dworkin’s argument.  Firstly, it is difficult to see how the picture of Rosie falls within the definition of pornography as stated in the Minnesota Ordinance, as an argument that this picture subordinates the child and presents Rosie as a sexual object would be reading too much into it.  Furthermore, if we look at the considerations of both Dworkin and MacKinnon before the drafting of the ordinance we will see a very different context of that in which Mapplethorpe photographed Rosie in a studio for the purposes of an art exhibition.[23]  While this argument would more readily apply in relation to Mapplethorpe’s photographs of sadomasochism or his black male nudes, it is difficult to see how it applies in relation to his photographs of children.

The second argument against Mapplethorpe’s photograph is that it is potentially harmful to the child depicted.[24]  While this argument is generally acknowledged as valid in relation to child pornography, it again does not explain why Mapplethorpe’s photograph is regarded as pornographic.  Both arguments advanced against Mapplethorpe seem to assume that his photographs of children are pornographic but fail to explain why.  And while these arguments are both valid if we speak about child pornography they seem misconceived in the case of photography without an analysis of whether or why is the photograph classified as pornography.  In the end this analysis leads, I believe, to the conclusion that this photograph received so much attention and criticism less because of what it depicts and more because of the wider context of the exhibition and because of Mapplethorpe’s lifestyle as a gay and active sadomasochist.[25]

Two less extreme examples are the photographs by Sally Mann and Tierney Gearon.  These photographs deserve to be examined because unlike the case of Mapplethorpe, these photographs were taken by the children’s mothers, and like the case of Mapplethorpe issues were raised as to whether these pictures were regarded as child pornography or art and caused a major uproar amongst art critics and the public.  The case of Gearon concerned two coloured photographs of her children naked on the beach wearing masks and her son peeing in the snow.  Although the CPS decided not to bring proceedings against the artist, the issue took tremendous dimensions and once again sparked discussions as to what should be permitted under the heading of art.[26]  Those who argued in favour of the photographs instead of relying on the artistic merits of the photographer (as in the case of Mapplethorpe), defended the photographs as a set of family photographs, and as such removed any hint of intentionality on the part of Gearon.  This, as argued by Sarah Edge and Gail Baylis led to ideals of childhood and domestic innocence to enter the debate in interpreting the photographs.[27]  This uncertainty of how to interpret the photographs, as artistic in a public exhibition or as domestic, led to the discussion that followed.  In a similar context, the same issues were raised in America in respect to the exhibition of Sally Mann called “Immediate Family” where photographs of the artist’s children were read as an “invitation for paedophiliac pleasure”.[28]  However, in that case Mann was more readily acknowledged as an artist drawing on a feminist practice in photography of making private photographs public.  It is argued that whereas Gearon’s photographs could be read like this the attempt by Gearon to protect the photographs by claiming that they were just innocent photographs of family vacations[29] removed any possible feminist reading of it. 

What I have shown in this discussion is that in determining whether a photograph is to be read as art or as child pornography, what the photograph actually depicts is not determinative.  Just as Elena Loizidou argues that Nabokov’s “Lolita” has managed to escape censorship because of a distinction between the pornographic and the tragic,[30] so with photography what matters is the context of the exhibition as a whole and the messages the photograph actually conveys.  In the case of a book, to qualify as tragedy it must convey to the audience emotions of pity and fear and lead to catharsis[31] and photography should also have some messages to convey so as to cause its viewers to think and evaluate certain conceptions or misconceptions of life.  In the case of photography, however, this is much more difficult to assert than in the case of books and this is why the context of the photograph is important.  As Beth Eck illustrates, people in determining the context of a photograph take into account whether it is in black and white[32] (in which case the photograph looks more artistic) as it is the case for Sally Mann[33] and Mapplethorpe, or where the picture is shown[34] (if it is shown in a gallery or a museum it is regarded as art whereas if it appears in a magazine it is more easily regarded as pornographic). 

This having been said, if the subject of the photograph is children, then there is an additional hurdle for the photographs.  Photographs of the exposed bodies of children are at odds with our conceptions of childhood as innocence.  These images show that the power to construct childhood lies with the adult and does not correspond to the realities of the lives of children.  While we try too hard to present children as innocent the truth is that our culture “sexualises” young girls because of the impossibility of separating femininity from sexuality so while young girls are excluded from sexual knowledge, the way our culture constructs the feminine identity, means that their image cannot fail to indicate sex.[35]  Images of young boys can also be read as childlike and innocent and therefore feminised in relation to the adult male power.[36]

This analysis shows, that the reason there is so much uncertainty and discussion over the matter of whether a photograph is art or pornography is because photographs of children are connected with what we view as “the perfect childhood”.  Our fixation with stating explicitly that children are innocent while at the same time silently acknowledging that innocence is sexualised, is what makes us so uncomfortable with images of naked children and what leads to the moral panic that surrounds these photographs.  Despite the fact that in all the cases discussed there was no conviction in the end, signifying a final acceptance that the images were in fact art, the tensions that arose during the exhibitions of these photographs illustrate the reluctance to accept any photograph depicting the bodies of children.  In the end the question of what is art and what is pornography remains unanswerable because just as childhood, adulthood and sexuality are social constructions so are the notions of art and pornography. 

 

The Legal Response to Child Pornography

I discussed above, how the context is important in determining whether a photograph is pornographic.  While this is true as regards what the society views as pornographic, this is not equally true as regards the legal question as to what amounts to pornography.  In this section, I analyse the laws developed in the UK for tackling child pornography and the harm they actually seek to prevent.  In situations of pornography which depicts real child sexual abuse, it is clear that the laws seek to protect children from sexual exploitation. The matters however, become more complicated in less clear cut situations of pornography.  As it will be discussed the UK law has developed a comprehensive system of criminalisation from the creation and distribution of such photographs to the mere possession of them and from photographs depicting the abuse of children to completely computer generated images of naked children and even animation.  This wide range of offences, scattered across four different Acts, raises the question of whether the government really sought to protect children from exploitation or whether what it seeks to protect is the ideal of childhood so much valued by society.[37]  The most obvious harm child pornography causes is the physical and sexual abuse of children.  According to Tate, child pornography is the permanent recording of a child being sexually abused.[38]  The argument goes that in order for someone to make child pornography, a child has to be hurt, and any distribution of such images,[39] but also possession of them, extend the primary harm.[40]  A further justification of the laws regulating child pornography is that it presents children as passive objects abused by the adult[41] and therefore child pornography can have the effect of objectifying children.  Although Ost uses this argument only in relation to the creation of real indecent images of children,[42] I believe that it applies also to possession and to pseudo-images.  This is because a child is not portrayed as an object only the moment the photograph is created, but rather, the photograph itself becomes evidence of objectification.  Every time this photograph is being viewed, then the message it conveys is that children are objects.  And exactly because the identity of the child is not important for the viewer of child pornography, the objectification of the child becomes the objectification of children as a class.  This is also the reason that pseudo-photographs also degrade, dehumanise and objectify children.  The argument that viewers of child pornography might become child abusers is problematic as there is no evidence supporting it[43] and becomes even more problematic in the case of pseudo-images where not only there is a counter argument that such images may actually prevent child abuse[44] (although supporters of this argument do not have any evidence to support it)[45], but as Williams points out, in criminalising pseudo-images, politicians made no research to this effect prior to passing the legislation.[46]  According to Ost, however, pseudo-photographs are justifiably criminalised because “they violate the child’s right to be treated as an end in herself”.[47]  This argument, she applies only to pseudo-images that are the manipulation of an image of a real child.  And this is where I disagree.  Child pornography is not only a crime against an individual child, but against children as a class as well.  Levy suggests that “Child pornography, actual or virtual, [does not subordinate children] because ... children are not equal ... and this is a reflection of their physical, mental and psychological immaturity”.[48]  This is an argument I cannot accept not just because it rests on social constructions presented as universal truths but also because it presents children as sub-humans thus not deserving respect and not having dignity.  If pseudo-images were decriminalised then such “soft-core” child pornography would be part of our everyday lives, because who’s to say that virtual children will not appear in provocative advertisements or magazines, and that would, as King argues, lead to desensitising us and poisoning our attitudes towards children.[49]  My argument is that criminalisation should not only focus on remote notions of harm, because if we focus only on the physical abuse we lose an important aspect of the problem.  The focus should be extended to the right of children to respect and dignity which is what child pornography takes away from them.  This argument applies to images of child abuse as well as pseudo-images.  Every time a picture of child pornography is viewed, there is a denial of the child’s right to respect and dignity and every time we disregard this, there is an affirmation of that denial.

 

Make or Distribute an Indecent Photograph or Pseudo-photograph

The Protection of Children Act 1978 makes it criminal to take or make an indecent photograph of a child,[50] the distribution of such image[51] and the advertisement of such distribution.[52]  These sections have been amended by the Criminal Justice and Public Order Act 1994 so as to include pseudo-images as well.[53]  According to the case of Bowden[54] the word make is to be accorded its natural meaning as found in the Oxford dictionary, which is to bring about or create.  This interpretation was confirmed in the case of Atkins v. DPP[55] where the court also established the mens rea for the offence of making and distributing indecent photographs of children as requiring intention.[56]  The court extended the mens rea of the offence in the joint cases of R v. Smith; Jayson[57] where it was held that the mens rea of an offence under s.1 (1) (a) of the 1978 Act included not only intentional access to an indecent image but also access to an image where the defendant knows that it is likely to be an indecent image of a child.[58]  In this case the court also held that if a person opens e-mail attachments that contain indecent images of children and upon seeing these images does not delete them, then that person will also be guilty of “making” an indecent image of a child.[59]

Another important element of this offence is that the photograph of the child has to be indecent.  It is therefore crucial to examine how “indecent” has been defined.  According to Gillespie, indecency is perhaps, the most important part of the child pornography offences[60] and yet, there is no definition of it in the Act.  In the case of Graham- Kerr[61] the court said that the question of whether a photograph is indecent is a question of fact for the jury to decide applying the standards of decency which ordinary people would set.  In doing so, the jury should focus on the content of the image and not on the maker’s intention or the context in which it was taken.[62]  According to these cases the test of whether a photograph is indeed indecent is an objective one, making it, as Ormerod argues a very broad offence.[63]  This objective test makes even more difficult the distinction between photographs that harm children and for example family snap-shots of naked children and may have the potential effect of criminalising even innocent activities.  The obvious alternative to this approach is one that would focus on the context in which the photograph was taken including the intention of the photographer.  This would have the benefit of avoiding the all-encompassing definition of indecency and also acknowledge the fact that many offenders obtain sexual gratification from images that are not considered objectively indecent.[64]  This more subjective test however, would be even more problematic than the one currently applied because in most cases it would be hard to prove the circumstances and the intentions in which the images were taken (or made).  Ormerod and Barsby argue that this practical consideration would be avoided with a defence of “legitimate explanation” upon which it will be a defence if the defendant can prove that he has a legitimate reason for creating an image even though that image would be, according to the objective test, indecent.[65]  They do acknowledge, however that this is problematic insofar as it will lead to many defendants bringing such defences and attempting to adduce evidence of “decent motives” while the police will not be allowed to adduce evidence of “indecent motives”.[66]  The most problematic aspect of the current definition of indecency however, is that it is too uncertain and makes it likely that differently constituted jury would come up with different outcomes as to a specific photograph.  As a result of this, one cannot always be sure if he[67] committed an offence, the counsels cannot properly advise the defendants and this has the potential to lead to prosecutions failing.[68]  In turn this could also constitute a potential breach of Article 10 of the ECHR.[69]  Despite these criticisms of the indecency test, the court in Smethurst[70] held that the test is sufficiently certain and therefore there is no breach of Human Rights Act 1998.  This issue was considered by the European Court of Human Rights in the case of O’Carroll v. UK[71] where it was held that the fact that the law gives discretion to the jury will not constitute a breach of the Convention if a clear guidance is given; added to this is the fact that under the UK law if the material, as a matter of law, is not capable of being indecent then, it will not be put to the jury.[72]  In this case despite the fact that there was no explicit request by the applicant to the court for the reversal of the domestic decisions (most notably Smethurst) it can be argued that the European Court of Human Rights accepted that the objective test is permissible.[73]  The question of whether the decision of the European Court of Human Rights was correct and whether the objective test is actually compatible with the Convention is a point that raises a lot of questions but it is at least arguable that this decision was inevitable.  Given the arguments presented above, it is unlikely that a more subjective test relating to context would bring more certainty as it is unlikely that the court will be able to deal effectively with child pornography cases where a defence of “legitimate explanation” routinely used by the defendants.  As Gillespie and Bettinson argue the test as it is, is sufficiently certain as it enables a person to predict what a jury would consider indecent, albeit in loose terms.[74]

A second element of the offence is that there must be a photograph; while this may seem clear cut it is important to note a few things about what actually is a photograph.  According to section 7 (2)[75] a photograph includes an indecent film, a copy of an indecent photograph or film and an indecent photograph comprised in a film.  It is therefore, clear that the 1978 Act does not apply to cartoons or drawings.  Digital photography is also included by virtue of section 7(4)[76] which states that “data stored on a computer disc or by other electronic means which is capable of conversion into a photograph” is also to be regarded as photograph for the purposes of the 1978 Act.  Furthermore, the Act covers not only real photographs but also pseudo-photographs of children.  A pseudo-photograph is defined in section 7(7)[77] as an image whether computer generated or not which appears to be a photograph.  There is however, a limitation in this definition; in R v. Goodland, the court held that the pseudo-photograph must look like a photograph.[78]  Where the image shows two clearly separated photographs this would not be a pseudo-image unless the picture is photocopied.[79]

This offence is punishable with imprisonment for up to 10 years[80] indicating how severe it is to make and distribute an indecent image of a child.  There are however, a number of defences that allow a defendant to escape liability if he can prove that he needed to make or possess the photographs for reasons concerning the prevention and detection of crime[81] (thus allowing police officers investigating child pornography cases to escape liability), if he had a legitimate reason for his conduct in relation to the photographs,[82] if he had not seen the photographs and did not know, or did not have any reason to suspect that they contained indecent images of children.[83]  These defences are logical situations were liability should not be imposed because of limited culpability on the part of the defendant but as Gillespie argues they are problematic in that they place the burden of proof on the defendant raising questions of fairness.[84]  While acknowledging that this is an important issue relating to the child pornography offences, since this exceeds the scope of this paper, I will not further analyse this proposition.[85]

Possess an Indecent Photograph or Pseudo-photograph   

Section 160 of the Criminal Justice Act 1988 criminalised for the first time the possession of an indecent photograph of a child.  As Suzanne Ost argues the fact that the 1978 Act did not criminalise possession shows that up to 1988, possession was not regarded as serious enough to warrant punishment.  This offence is less severe than that of making and distributing an indecent image of a child and this is reflected by the penalty which is 5 years imprisonment.[86]  Section 160, as section 1 of the 1978 Act, is not a strict liability offence.  The Court in Atkins v. DPP held that the requisite mens rea for an offense of possession under section 160 is knowledge that the defendant actually has indecent photographs in possession.[87]  This mens rea element was confirmed in the case of Collier[88] where the Court of Appeal also said that it would be wrong to hold a person guilty if he can prove that he did not see the photographs and he can also prove that he did not know or have any reason to suspect that that they were indecent images of a child.  Thus as Yaman Akdeniz points out “if the defendant on the balance of probabilities proves that he had not seen the photograph and did not know and had no cause to suspect that it was an indecent photograph of a child, he must be acquitted of the possession offence”.[89]  The court took the definition of possession and the requirement of mens rea to the next level in the case of Porter[90] where the question arose as to whether deleted computer images can be thought to be in the possession of the defendant.  The court in this case expressed the view that a person cannot be said to have been in control or custody of the images if he cannot retrieve them or access them, even if these images remain on the hard disc of his computer.  This case has been heavily criticised as unnecessarily complicating the law.  Ormerod argues that in this case the court effectively established a “defence of deletion”[91] which will in effect depend on the defendant’s computing expertise.  Therefore, the defendant will be liable if he is sufficiently technologically literate so as to be able to retrieve the images.  Ormerod claims that the court did not fully appreciate the effects of its decision since now even a defendant who had actually requested such images would be acquitted because he had deleted them.[92]  Thus the concept of physical possession now has a subjective element.[93]  Another problem with this decision is that the use of traditional criminal law language (control and custody) is not appropriate in the case of new technologies and especially computer images since the defendant will never be in actual control and custody of the image, but rather of the hardware and software through which images are viewed.[94]

The elements of “indecency”, “child”, “photograph” and “pseudo-photograph” are the same as in section 1 of the 1978 Act and therefore I will not analyse them again.  The defences discussed above are also relevant in this context.  Section 160 of the 1988 Act has however, one additional defence, namely that the defendant has not solicited the images and having received them, has not kept them for an unreasonable time.  Ormerod argues that for the offence under section 160 to be established in case the defendant had not seen the image, the prosecution normally has to show that the defendant knew he possessed the image, that the image was objectively indecent and that it was of a child.  The way this defence operates allows the court to conclude that there is no need for the prosecution to establish the defendant’s knowledge, as part of the offence, of the “child subject-matter” of the image.[95]  Therefore, it the defendant had seen the image then the prosecution will have to establish that he had possession, of an indecent image of a child without any need to establish the defendant’s mens rea as to the age or indecency of the subject matter.  This according to Ormerod has the consequence of placing a greater obligation of proof on the prosecution in respect of the 1978 offence where the prosecution has to establish the defendant’s mens rea as to the age of the child.[96]  This illustrates how great is the need for modernising the law in this area so as to eliminate any inconsistencies.  

A possible overlap between the two offences may arise in cases of images through computer technology and especially the internet.  In such cases the line between making and possessing can be blurred to a significant extent.  Case law made it clear that downloading an image from the internet[97] and opening an e-mail attachment[98] are both offences of “making an indecent photograph”.  This is arguably correct since the opening and saving of a picture on the computer amounts to actually creating a copy of that picture and saving that copy and not the original picture that is uploaded on the internet.  However, it is questionable, unlikely even, that Parliament had this in mind during the debates for the 1978 Act.

 

Cause, Incite and Control a Child 

The law regarding child pornography became even more complex with the creation of new child pornography offences in the Sexual Offences Act 2003.  This new Act criminalises causing or inciting a child to become involved in child pornography,[99] intentionally control a child involved in child pornography[100] and intentionally arrange or facilitate a child’s involvement in child pornography.[101]  This is the first time the terms “child” and “pornography” were used together and many commentators have attacked the 2003 Act on this ground, claiming that child pornography is “an oxymoron” as it is a term that indicates consent and therefore misrepresents the real problem[102] and proposing that the Act should be altered to label the problem as “indecent images” or “abusive images”.[103]  I do not think that there is anything in the term “pornography” that connotes consent and especially if the term pornography is used in the same sentence as “child” there is certainly less room for confusion.  Furthermore, the term “indecent images” whereas is the term preferred by the Parliament so far, also misguides the problem as indecency, as well as obscenity, is a moral idea, whereas “pornography” or “abuse” is reality.  The notion of “indecency” does not protect the individual but the standards of the community and as Louis Henkin observed in relation to obscenity we criminalise such ideas because they have the potential of corrupting people; “at the bottom, obscenity is not a crime, it is a sin”.[104]  The definition of “abusive images” would capture the problem better, but there would be an argument as regards pseudo-images of children or images of naked children.  This is not conclusive, however, because such a definition would not only refer to the physical abuse of children as shown in hard-core pornography but also to the psychological abuse of children individually and as a class by denying them respect. 

A further problem with the 2003 Act as recognised by Gillespie is that there is a significant overlap between this new offence and the old offences under the 1978 Act.[105]  If someone incites or causes child pornography then that person would be an accessory to the offence of making an indecent photograph of a child under section 1 of the 1978 Act.[106]  This becomes even more problematic if we take into account the fact that the 2003 Act imposes a higher penalty (14 years imprisonment)[107] than the 1978 Act.  Gillespie argues that if the act contained a commercial element, as was originally intended, this higher sentence would have been justified[108] but as the law stands now this higher sentence is problematic. 

 

Prohibited Images of Children

Criminalisation went even further with the Coroners and Justice Act 2009 which criminalises prohibited images of children.  According to section 62(2) an image is prohibited if it is pornographic, if it focuses solely or principally on a child’s genitals or anal region,[109] or portrays any of the specified acts which include an act of intercourse in the presence of a child, or an act which involves the penetration of the vagina or anus of a child[110] and if the image is grossly offensive, disgusting or of an obscene character.  Section 65 states that an image is a moving or still image or data capable of conversion into an image and does not include an indecent photograph or pseudo-photograph of a child.  This section serves to distinguish between the different child pornography offences so if there is a photograph or pseudo-photograph of a child, proceedings will be brought under section 160 of the 1988 Act.  Clearly the new act captures images such as drawings and cartoons; however, the position of computer generated images is more controversial.  This is likely to be a question of fact for the jury depending on how real the image looks.[111]  A further problem is that while with photographs it is relatively easy to identify a child, in the case of cartoons and comics covered by the new legislation it may be difficult for the jury to determine the age of the depicted character.  Section 63(3) defines a pornographic image as an image that has been created principally for sexual arousal.  This is a question of fact for the jury to decide and section 62 (4) states that where an image forms a part of a series of images the question of whether the image is pornographic must be taken having regard to the image itself but also to the context in which it occurs and this is a departure from the case of indecent images where only the individual photograph should be looked at.  The problem here is that since the Act captures comics and cartoons, the jury might have some difficulty in determining whether the comic book, for example, had the primary purpose of sexual gratification when there are also other themes, such as violence.[112]  The last element of the offence is that the image must be obscene, and not merely indecent.  This is a higher standard and since there is no definition of obscenity in the act, the common law principles will apply making it a question of fact for the jury applying the “recognised standards of propriety”.[113]

The Coroners and Justice Act 2009 does not mention a mens rea requirement but it can be assumed that some knowledge of the possession of the images is required as held by the court in its case law concerning the 1978 and the 1988 Acts.[114]  Finally, this offence carries a maximum penalty of 3 years imprisonment when tried on indictment and 12 months imprisonment when tried summarily, which is a more lenient sentence than the penalties under the 1978, the 1988 and the 2003 Acts justified by the fact than in the case of an offence under the 2009 Act no real child has suffered.  Since this is a new Act, we have not had any examples yet of trials and its problematic areas. 

Sentencing Guidelines

Since the offences regarding child pornography are so wide, guidance was needed to enable the court to adopt a sentencing scale based on seriousness.  The Sentencing Advisory Panel issued a consultation paper on the sentencing of such offences[115] which included a table adapted from the Copine Typology Scale[116] to assist the judiciary when passing sentence.  This list included images depicting nudity or erotic posing with no sexual activity as the least serious offence and sadism or bestiality as the most serious.  The panel also reported that the nature of the offender’s activity should also be taken into account with the offence being more serious if it involved commercial activity, or if the offender had some responsibility for his victim.  This was adopted by the Court of Appeal in the case of R v. Oliver[117] adopted these guidelines with some minor modifications; the image of naked children in legitimate settings would not constitute to a pornographic image.  This limitation of the recommendations in Oliver however, is questionable, as Gillespie argues[118]  because in the case of R v. Carr[119] the court did not quash the conviction of a man in possession of pictures of the first level of the advisory panel’s recommendations, suggesting that this would also constitute indecent images.  This case is problematic because it confuses what would actually fall in the first scale of the Oliver guidelines.  Since, however, Oliver is not overruled it is regarded as the leading approach.   

 

The Internet Era

While child pornography is not a new phenomenon, as illustrated in the above discussion, it acquired new dimensions with the use of the internet.  The ways the internet can be used are becoming more and more sophisticated and new technologies are constantly evolving, to the point that now internet can be accessed through “third generation mobile phone technology”.[120]

In the case of child pornography this is extremely problematic because the ability of the offenders to trade images, to collect images and to communicate with one another is much easier than it use to be before the internet.  In addition, the anonymity the internet offers increases the offenders’ sense of safety and it makes it difficult for the police to locate them. 

Even though the incentive of the offenders is primarily sexual gratification, the ease with which pictures of child pornography can be gathered through the internet, has the effect of becoming a “collector fetish”.[121]  Firstly due to anonymity it is much easier to collect indecent photographs of children through the internet rather than having to seek hard copies of such images through the post, or magazines, and in essence, as Taylor and Quayle argue, the process of collection becomes as anonymous as one wishes it to be.[122]  What is more, due to this ease of access, it is easier to “build” large collections of such material, and because new technologies allow offenders to easily store large amounts of pictures or videos they might end up having collections sometimes as big 50.000 pictures.[123]

Another problem is that with the rapid development of the internet, it becomes difficult to trace the offenders and bring them to justice.  E-mails are no longer utilised to trade such indecent images[124] because of the ease to track the offenders down; they also do not use fixed sites and often resort to an array of connected locations like Usenet and bulletin boards.  The destruction of one server or site has therefore, no impact on the whole system.[125]  What is more, many of the offenders who use these “internet communities” are computer literate[126] making the police’s work even more difficult, so that if a channel is identified with paedophile material they move to a different one so that they will remain hidden.[127]

Offenders use the internet to create some kind of “Virtual Communities” in which status is important.[128]  According to Taylor and Quayle, status within these communities is acquired by the frequency and quality of the member’s pornographic material contribution, by their technical and security expertise and by the duration of their participation in the community.[129]  This is particularly problematic because in order for a member to acquire status it is necessary to post images of abuse, if a member does not do so, then there is the possibility of not being able to access any new images and therefore the cycle of abuse is continued.  In this respect Jenkins even provides a comment by a member of that community, urging newer members to “buy a digital camera to make some home-mades and post them”.[130]

These communities also serve to legitimise, in a way, the offender’s conduct and interest in children.  While most of the offenders realise that their actions are illegal they fail to understand the harm done to the children.[131]  Within these communities they meet like-minded individuals and they present themselves as the victims of oppression and intolerance comparing themselves with gay rights movements.[132]

A further danger with the technological developments is the use of web-cams which are video capture devices connected to computers or computer networks,[133] now incorporated in most laptops, through which video telephony is possible.  These web-comes, cannot only be used as a means of creating a video of child abuse but also as the links for others to watch while the abuse takes place.

Having said that, it is easy to see that the internet and the new technologies have exacerbated the problem of child pornography and made it even impossible to eradicate.  What is more, if a picture is made available in the internet it is almost impossible for it, ever to be destroyed as it will be saved in millions of computers, be traded a million times and found in a million other web-sites.  The laws designed to tackle child pornography in any national system, are clearly insufficient to tackle this problem because these virtual communities operate beyond any particular jurisdiction and the net is only virtually a space.  Jenkins argues that the total elimination of electronic child pornography is impossible[134] and I would agree with his proposition, but I believe that with proper co-operation at international level between countries and internet service providers it is possible to eliminate child pornography in the internet in a significant extend. 

 

International Responses and ISP Liability 

United Nations

The UN Convention on the Rights of the Child (CRC) is a convention that achieved almost universal ratification with the exception of the USA and Somalia.  Article 34 of CRC provides for the protection of children from all forms of sexual exploitation and abuse including the inducement or coercion of a child to engage in any unlawful activity[135] and the exploitative use of children in pornographic performances and materials.[136]  This provision relates expressly to child pornography but the problem emerges that it includes no definition of what actually is child pornography or what is the “exploitative use of children”.  The special rapporteur on the sale of children, child pornography and child prostitution noted that this vague language makes it difficult to ensure the compliance of national systems with Article 34[137] and therefore Article 34 is potentially ineffective. This, however, does not mean that Article 34 is useless, rather, as Doek argues it served as a starting point upon which all the other reforms in this area took place.[138]

In 2000 the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography was introduced which aimed at providing better protection than Article 34 of the CRC.  While this protocol has not been accepted as widely as the CRC itself, it is an important step in that it provides a universal definition of pornography unlike article 34.  According to Article 2(c) pornography is “the representation of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”.  Ost argues that this definition is too wide and in considering whether a picture is for sexual purposes would mean that an innocently taken picture which shows genital area might be considered as pornographic.[139]  Despite this, however, given the difficulty of defining child pornography, it is important to have a universal definition of it, as it is the only way of harmonising domestic systems to effectively combat this problem.  Article 3(1)(c) provides that states should criminalise the production, distribution, dissemination, import, export, offer, sell and possession for any of the mentioned purposes and also the protocol provides for international cooperation for prevention, detection and prosecution.[140]

 

Council of Europe

The Council of Europe has in place two conventions that can be utilised to tackle the problem of child pornography.  The first is the Convention on Cybercrime[141] which requires states to cooperate with each other in the investigation of a range of crimes that involve the internet.  Child pornography is included as a cybercrime[142] and states are required to criminalise a range of behaviours related to it.[143]  The Convention of Cybercrime also contains a definition of child pornography which includes visual depictions of a minor engaged in sexual activity, sexually explicit conduct and pseudo-images,[144] but allows some discretion as to the criminalisation of pseudo-images.[145]  Although this is a regional instrument it is important as it is one of the first instruments which sought to criminalise child pornography and it is signed by states outside the Council of Europe, most notably the USA.[146]

The second instrument is the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse[147] which is a wider convention than the one on Cybercrime and protects children against different kinds of sexual exploitation.  This convention again seeks to promote universal cooperation and it provides for the criminalisation of the same offences related to child pornography as the Convention on Cybercrime[148] but is not limited to the use of internet. 

 

European Union

The EU, urged the Council to produce a framework decision for the protection of children against exploitation and pornography.  In 2004 the Council Framework Decision[149] came into force and immediately became binding on the member states.[150]  This instrument acknowledged that child pornography is a violation of the child’s human rights and to the child’s right of harmonious development and required the criminalisation of production, distribution supply and acquisition or possession of child pornography.[151]  The definition of child pornography in the Framework Decision involves sexually explicit conduct including lascivious exhibition of a child’s genitals and covers older people appearing to be children and realistic images of non-existing people.  This is a very important step at European level and despite the fact that as Akdeniz argues, it is unlikely to have any significant impact in the UK as the UK laws are largely in compliance with it,[152] it will have the important impact of harmonising to some extend the member states domestic systems on the issue.  It is important to note that there is a proposal by the EU to replace the framework decision with a new Directive[153] which would allow the Commission and the European Court of Justice (ECJ) to ensure compliance.[154]  This new directive will be similar to the framework decision but it will replace the term “lascivious exhibitions” in the definition of child pornography with “any depiction of the sexual organs of a child for primarily sexual purposes”.[155]  This will have the effect of bringing the definition of child pornography at European level in line with the definition provided at universal level by the Optional Protocol to the CRC.

So far, I would agree with Akdeniz, that the best instrument is the optional protocol to the CRC.[156]  This is because it is the only truly universal instrument and the only one with such comprehensive coverage of the issues regarding child pornography.  Having said that, the Framework decision is also important as it expressly poses the problem of child pornography as an issue attacking the human rights of the children.  The Directive is also important to the extent that it will harmonise the European approach with the universal one thus providing a comprehensive universal system of criminalisation.  All these instruments by posing child pornography as a human rights issue, restate the fact that children are human beings deserving of respect and dignity, thus the criminalisation of child pornography constitutes a priority. 

Internet Service Providers’ Liability

The ISPs are responsible for providing internet access to users and while ISPs have no direct control over what is there on the net, they are unsurprisingly thought to be part of the problem.  The crucial point is that while a state cannot impose liability on ISPs for all the offending material on the internet, the legal system can never hope for the effective combat of child pornography without the cooperation of the ISP’s and therefore a right balance has to be struck. 

In Europe, the approach that has been developed is that ISP’s will only be liable for material they have notice of whereas in the US ISPs are immune for prosecution with the only burden on them being the requirement to report to the relevant authorities any availability of child  pornography on their servers that they know of.  While both of these approaches, seem to recognise the technical difficulties an ISP might face in relation to illegal material (for example limited technical ability to detect and control content, monitoring enormous quantities of network traffic)[157] the ISPs should have a more substantive role in the battle against child pornography.  This involvement can be achieved through the use of co-regulative approaches.  The internet industry has all the necessary knowledge to self-regulate by the use of the development of codes of conduct developed by the industry to regulate the industry.  The best example is the UK Internet Service Providers Association which adopted a code of conduct which includes references to the work of the Internet Watch Foundation.[158] One feature of this co-regulatory mode is the development of hotlines which allow the members of the public to report illegal internet content.  The IWF has such a hotline which is fully funded and supported by the UK ISPs who oversee its operation.[159]  The IWF has also a policy upon which the ISPs in the UK are urged not to host newsgroups which the IWF identifies as containing child pornography.  As Akdeniz argues, however, this policy might set dangerous precedents of censorship which if applied broadly might harm the ISPs generally.[160]  The right balance is hard to achieve, but given the above discussion, the British IWF might be the way forward or at least an important starting point.

 

Conclusion

Andrea Dworkin stated that “Pornography creates a systematic harm in the form of discrimination and physical hurt.  It creates harm inevitably by its nature because of what it is and what it does.  The harm will occur as long as it is made and used.  The name of the next victim is unknown but everything else is known”.[161]  This is even more so in the case of child pornography.  Child Pornography is not only an issue of child abuse but an issue of respect and dignity.  In this paper I have attempted to illustrate a number of issues relating to child pornography in order to be able to better understand the problem and thus develop better ways of dealing with it.  I have argued that the social construction of childhood as innocent and the sexualisation of that innocence, serve to silence children and thus deprive them of the respect and the dignity they deserve. However, the process for abandoning these social constructions is slow and difficult and while it is essential, this does not mean that we should stop relying on the laws developed to tackle child pornography. 

The UK has one of the most comprehensive systems of criminalisation of child pornography ranging from the criminalisation of production to possession and from images of abuse of children to wholly computer generated pictures and even cartoons.  What I suggested is that while I am not arguing for the abandonment of the UK laws, I believe that they should be reconstructed in order to focus on the respect and dignity of each child and not only on their physical wellbeing.  This can be done without the need to radically change the laws themselves but rather through judicial interpretation of such laws and through the academia. 

This by itself, however, is not enough.  The global dimension added to the problem of child pornography by the use of the internet, signals that this problem cannot adequately be dealt with at a domestic level.  The only way to be able to effectively combat child pornography is by the coordination and cooperation of domestic, regional and international systems so as to develop systematic machineries of investigation and prosecution.  Such an attempt could only be successful, with the cooperation of Internet Service Providers.  A sufficiently workable system would be a system similar to the one proposed by the International Centre for Missing and Exploited Children which proposed that each country should give specific regard to child pornography, include within its laws a definition of child pornography, criminalise computer facilitated offences, criminalise child pornography possession, and insert within their legislations, mandatory procedures for ISPs to report child pornography to the relevant agencies.[162]  Unfortunately, out of the 196 countries reviewed by ICMEC only 8 countries meet all the above criteria.[163]

Given the difficulty of defining child pornography the global attempts to harmonise the national approaches have all been extremely helpful and they are also positive steps towards the representation of the problem of child pornography as an issue of human rights and an issue of respect and dignity as well as an issue of abuse.

The duty to find the best possible mechanism to combat child pornography, especially in light of the technological advances brought about by utilisation of the internet, is more compelling than ever and it is time to realise that the fight against child pornography is not a fight for the restoration of lost innocence; it is not a fight at our discretion for the protection of an abstract ideal of childhood.  It is a duty we owe to real children, a duty to protect their physical and psychological well being and an overdue duty of respect.

 

Bibliography

Primary Sources

Legislation

Domestic

Coroners and Justice Act 2009

Criminal Justice Act 1988

Criminal Justice and Public Order Act 1994

Protection of Children Act 1978

Sexual Offences Act 2003

 

Regional

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR)

 Convention on Cybercrime, European Treaty Series No. 185

Council Framework Decision (EC) 2004/68/JHA on combating the sexual exploitation of children and child pornography [2003]

Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Council of Europe Treaty Series No. 201)

Proposal for a Directive of the European Parliament and of the Council on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography Repealing Framework Decision 2004/68/JHA, (2010) 2010/0064 (COD)

 

 

 

International

United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 2171 UNTS 227 (CRC),

Optional Protocol on the Sale of Children, Child Prostitution and  Child Pornography (adopted 25 of May 2000 and entered into force 18 January 2002) Volume 2171, A-27531

 

Cases

UK

Atkins v. DPP [2000] 1 W.L.R. 1427

Atkins v. DPP [2002] 2 Cr. App. R 248

R v. Bowden (Jonathan) [2001] Q.B. 88

R v. Collier [2004] EWCA Crim.

R v. Goodland [2000] WLR 1427

R v. Porter [2006] EWCA Crim 560

R v. Secretary of the State Ex p. Venables; Thompson [1996] C.O.D 365

R v. Smethurst [2002] 1 Cr. App. R. 6

R v. Smith; R v. Jayson [2003] 1 Cr. App. R. 13

R v. Stanford [1972] 2 QB

Regina v. Bowden (Jonathan) [2001] Q.B. 88

 

ECHR

O’Carroll v. United Kingdom (2005) 41 EHRR SE1

Secondary Sources

Articles

Alisdair Gillespie and Vanessa Bettinson, “Indecent Images: ECHR Article 7” (2006) 70 Journal of Criminal Law 127

Alisdair Gillespie, “Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse” (2005) 9 The international Journal of Evidence and Proof 29

Alisdair Gillespie, “The Sexual Offences Act 2003: Tinkering with ‘Child Pornography’ ” (2004) 361 Criminal Law Review

Anthony Beech et al, “The Internet and Child Sexual Offending: A Criminological Review” (2008) 13 Aggression and Violence Behaviour 216

Beth Eck, “Nudity and Framing: Classifying Art, Pornography, Information and Ambiguity” (2001) 16 Sociological Forum 603

D. C Ormerod and Tom Rees “Indecent photograph: Possession of Indecent Pseudo-photograph of Children” [2004] Criminal Law Review 1039

D.C Ormerod, “Indecent Photograph of Child - Criminal Justice Act 1988 s.160(1) – Possession of Indecent Photograph of Child” [2006] Criminal Law Review 748

David Ormerod, Claire Barsby, “Indecent Photographs of Children: Making an Indecent Photograph of a Child whether Breach of the ECHR, Articles 8 and 10” [2001] Crim. L.R 657

Heather Munro Prescott, “Review of Child-Loving: The Erotic Child and Victorian Culture by James Kincaid” (1994) 27 Journal of Social History 649

Jaap E. Doek “The CRC 20 years: An overview of some of the major achievements and remaining challenges” (2009) 33 Child Abuse and Neglect 771

Joann Conrad, “Lost Innocent and Sacrificial Delegate: The JonBennet Ramsey Murder”, (1999) 6 Childhood 313

Judith Tannenbaum, “Robert Mapplethorpe: The Philadelphia Story” (1991) 50 Art Journal 71

Katherine Williams, “Child Pornography Law: Does it Protect Children?” (2004) 26 Journal of Social Welfare and Family 245

Louis Henkin, “Morals and the Constitution: The Sin of Obscenity” (1963) 63 Columbia Law Review 391

Mary Childs, [1991] “Outraging Public Decency: The Offense of Offensiveness”, Public Law Journal 20

Neil Levy, “Virtual Child Pornography: The eroticization of Inequality” (2002) 4 Ethics and Information Technology  319

Peter King, “No Plaything: Ethical Issues Concerning Child Pornography” (2008) 11 Ethic Theory Moral Practice 327

Sarah Edge, Gail Baylis, “Photographing Children: the Works of Tierney Gearon and Sally Mann” (2004) 5  Visual Culture in Britain 75

Susan S. M. Edwards, “Prosecuting ‘Child Pornography’: Possession and Taking of Indecent Images of Children” (2000) 22 Journal of Social Welfare and Family Law

Suzanne Ost, “Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society” (2002) 29 Journal of Law and Society 436

Vitit Muntarbhorn, “Report of the Special Rapporteur on Sale of Children, Child Pornography and Child Prostitution” (1995)  E/CN.4/1991/51

 

 

Books

Alisdair Gillespie, Child Pornography Law and Policy (Routledge, 2011 UK)

Arthur C. Danto, Playing with the Edge: The Photographic Achievement of Robert Mapplethorpe (University of California Press, London UK 1996)

Catherine MacKinnon and Andrea Dworkin, Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organising Against Pornography, 1998)

David Archard, Children: Rights and Childhood (2nd edn Routledge, UK 2004)

Drucilla Cornell (ed), Feminism and Pornography (Oxford University Press, New York 2000)

Eric Heinze (ed), Of Innocence and Autonomy: Children, Sex and Human Rights (1st edn Ashgate Publishing Ltd, UK 2000)

Julia Davidson and Petter Gottschalk (eds), Internet Child Abuse: Current Research and Policy (Routledge, New York 2011)

Julia Fionda (ed), Legal Concepts of Childhood, (Hart Publishing, 2001, Oregon) Brian Wallis (ed), Democracy, A Project Group Material: Discussions in Contemporary Culture (2nd edn Bay Press, USA 1996) 

Max Taylor and  Ethel Quayle, Child Pornography: An Internet Crime (Bruner-Routledge, New York 2003)

Patricia Holland, Picturing Childhood: The Myth of the Child in Popular Imagery, (2nd edn I.B Tauris & Co Ltd, London 2006)

Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University Press, London 2001)

Suzanne Ost, Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge University Press, New York 2009)

Tim Tate, Child Pornography: An Investigation (Methuen, London 1990)

Yaman Akdeniz, Internet Child Pornography and the Law: National and International Responses, (Ashgate Publishing Ltd, UK 2008)

 

Websites

Bill Kenworthy, Public Funding of Controversial Art, <http://www.firstamendmentcenter.org/public-funding-of-controversial-art>

International Centre for Missing and Exploited Children, Child Pornography: Model Legislation and global review.(2010, 6th edn) <http://www.icmec.org/missingkids/servlet/PageServlet?LanguageCountry=en_X1&PageId=4346>

Internet Service Providers Association <http://www.ispa.org.uk/about_us/page_16.html>

Internet Watch Foundation, “Annual and Charity Report 2010” <http://www.iwf.org.uk/assets/media/annual-reports/Internet%20Watch%20Foundation%20Annual%20Report%202010%20web.pdf>

 

Newspaper Articles

Matt Seaton, “The Myth of Childhood Innocence” The Guardian (London, 13 March 2001) <http://www.guardian.co.uk/society/2001/mar/13/childprotection.mattseaton> accessed 20 June 2011

Tierney Gearon, “Where is the Sex?” The Guardian (London, 13 March 2001) <http://www.guardian.co.uk/society/2001/mar/13/childprotection> accessed 20 June 2011



[1] Internet Watch Foundation, “Annual and Charity Report 2010” <http://www.iwf.org.uk/assets/media/annual-reports/Internet%20Watch%20Foundation%20Annual%20Report%202010%20web.pdf>, 42% North America, 41% Europe and 17% Asia, page 8

[2] Internet Watch Foundation, (n 1) at 8

[3] IWF, (n 1) at 9

[4] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 2171 UNTS 227 (CRC), art 1

[5] IWF, (n 1) at 9

 

[6] Julia Fionda (ed), Legal Concepts of Childhood, (Hart Publishing, 2001, Oregon) at 26

[7] David Archard, Children: Rights and Childhood (2nd edn Routledge, UK 2004) at 46

[8] New Testament, Mathew 19.13 page 43/44 (Greek translation)

[9] Julia Fionda, above (n 6) at 46

[10] Christine Piper, “Historical Constructions of Childhood Innocence: Removing Sexuality” in Eric Heinze (ed), Of Innocence and Autonomy: Children, Sex and Human Rights (1st edn Ashgate Publishing Ltd, UK 2000) at 32

[11] Joann Conrad, “Lost Innocent and Sacrificial Delegate: The JonBennet Ramsey Murder”, (1999) 6 Childhood 313, at 318

[12] Ibid at 313

[13] R v. Secretary of the State Ex p. Venables; Thompson [1996] C.O.D 365 affirmed by the House of Lords in [1997] 3 W.L.R. 23

[14] Joann Conrad, above (n 11) at 316

[15] Heather Munro Prescott, “Review of Child-Loving: The Erotic Child and Victorian Culture by James Kincaid” (1994) 27 Journal of Social History 649, at 651

[16] The first time the terms child and pornography were mentioned in a statute was in the Sexual Offences Act 2003 sections 48-50

[17] Judith Tannenbaum, “Robert Mapplethorpe: The Philadelphia Story” (1991) 50 Art Journal 71, at 74

[18] Bill Kenworthy, Public Funding of Controversial Art, <http://www.firstamendmentcenter.org/public-funding-of-controversial-art> accessed 16 February 2011

[19] Arthur C. Danto, Playing with the Edge: The Photographic Achievement of Robert Mapplethorpe (University of California Press, London UK 1996) at 59

[20] Ibid at 62

[21] Catherine MacKinnon and Andrea Dworkin, Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organising Against Pornography, 1998) at 138-142

[22] Judith Butler, “The Force of Fantasy: Feminism, Mapplethorpe, and Discursive Excess” in Drucilla Cornell (ed),  Feminism and Pornography (Oxford University Press, New York 2000) at 494

[23] These considerations are illustrated in many of the authors’ works and examples are: Andrea Dworkin, “Pornography and Grief” and Catherine MacKinnon, “Only Words” in Drucilla Cornell’s Feminism and Pornography pages 39 and 94 respectively.

[24] Arthur C. Danto above (n 19) at 65

[25] Lisa Duggan, “Sex Panics” in Brian Wallis (ed), Democracy, A Project Group Material: Discussions in Contemporary Culture (2nd edn Bay Press, USA 1996)  at 311/212

[26] Suzanne Ost, Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge University Press, New York 2009) at 187

[27] Sarah Edge, Gail Baylis, “Photographing Children: the Works of Tierney Gearon and Sally Mann” (2004) 5  Visual Culture in Britain 75, at 77

[28] Ibid at 80, 81

[29] Matt Seaton, “The Myth of Childhood Innocence” The Guardian (London, 13 March 2001) <http://www.guardian.co.uk/society/2001/mar/13/childprotection.mattseaton> and Tierney Gearon, “Where is the Sex?” The Guardian (London, 13 March 2001) <http://www.guardian.co.uk/society/2001/mar/13/childprotection> accessed 20 June 2011

[30] Elena Loizidou, “Lolita at the Interface of Obscenity: Children and the Right to Free Expression” in Eric Heinze (ed), Of Innocence and Autonomy: Children Sex and Human Rights (Dartmouth Publishing Company Ltd, England 2000) at 126

[31] Ibid at 126

[32] Beth Eck, “Nudity and Framing: Classifying Art, Pornography, Information and Ambiguity” (2001) 16 Sociological Forum 603, at 620

[33] Sarah Edge and Gail Baylis, above (n 27) at 82

[34] Beth Eck, above (n 32) at 611-612 and page 628

[35] Patricia Holland, Picturing Childhood: The Myth of the Child in Popular Imagery, (2nd edn I.B Tauris & Co Ltd, London 2006) 178 - 205

[36] Ibid

[37] As discussed above in the section “Childhood Innocence”.

[38] Tim Tate, Child Pornography: An Investigation (Methuen, London 1990) at 15

[39] Suzanne Ost, Child pornography and Sexual Grooming: Legal and Societal Responses (Cambridge University Press, New York 2009) at 107

[40] Ibid at 117

[41] Suzanne Ost, “Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society” (2002) 29 Journal of Law and Society 436, at 455

[42] Ibid

[43] Neil Levy, “Virtual Child Pornography: The eroticization of Inequality” (2002) 4 Ethics and Information Technology  319, at 319

[44] Ibid at 321

[45] See for example ibid

[46] Katherine Williams, “Child Pornography Law: Does it Protect Children?” (2004) 26 Journal of Social Welfare and Family 245 at page 252

[47] Suzanne Ost, above (n 39), at 129

[48] Neil Levy  above (n 43) at 322

[49] Peter King, “No Plaything: Ethical Issues Concerning Child Pornography” (2008) 11 Ethic Theory Moral Practice 327, at 336

[50] Protection of Children Act 1978 s.1(1)(a)

[51] PCA 1978 s.1(1)(b)

[52] PCA 1978 s.1(1)(d)

[53] Criminal Justice and Public Order Act 1994 s.84

[54] Regina v. Bowden (Jonathan) [2001] Q.B. 88

[55] Atkins v. DPP [2000] 1 W.L.R. 1427 at 1437

[56] Ibid at 1438

[57] R v. Smith; R v. Jayson [2003] 1 Cr. App. R. 13

[58] Ibid at 217

[59] Ibid at 216

[60] Alisdair Gillespie, “Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse” (2005) 9 The international Journal of Evidence and Proof 29, at 31

[61] [1988] 1 W.L.R. 1098 at  1101

[62] R v. Smethurst [2002] 1 Cr. App. R. 6, at para 16

[63] David Ormerod, Claire Barsby, “Indecent Photographs of Children: Making an Indecent Photograph of a Child whether Breach of the ECHR, Articles 8 and 10” [2001] Crim. L.R 657 at 658

[64] Alisdair Gillespie, above (n 60) at 31

[65] David Ormerod, Claire Barsby, above ( n 63) at 658

[66] Ibid at 659

[67] I use “he” instead of “she” because in child pornography cases the vast majority of the offenders are male.

[68] Similar arguments made by Mary Childs in respect of “outraging public decency offence” see Mary  Childs, [1991] “Outraging Public Decency: The Offense of Offensiveness”, Public Law Journal 20 at 24, 25

[69] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR) art 10

[70] R v. Smethurst [2002] 1 Cr. App. R. 6

[71] O’Carroll v. United Kingdom (2005) 41 EHRR SE1

[72] Ibid

[73] Alisdair Gillespie and Vanessa Bettinson, “Indecent Images: ECHR Article 7” (2006) 70 Journal of Criminal Law 127 at 129

[74] Ibid at 130

[75] Protection of Children Act 1978

[76] As amended by the Criminal Justice and Public Order Act 1994

[77] Protection of Children Act 1978

[78] R v. Goodland [2000] WLR 1427

[79] Ibid

[80] Protection of Children Act 1978 section 6(2)

[81] Ibid section 1(1B)

[82] Ibid section (1)(4)(a)

[83] Ibid section (1)(4)(b)

[84] Alisdair Gillespie, “Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse” (2005) 9 The international Journal of Evidence and Proof , 29 at 40

[85] For a detailed discussion on this issue see ibid

[86] Criminal Justice Act 1988 section  160(2A)

[87] Atkins v. DPP [2002] 2 Cr. App. R 248 at 1040 

[88] R v. Collier [2004] EWCA Crim. at 1411

[89] Yaman Akdeniz, Internet Child Pornography and the Law: National and International Responses, (Ashgate Publishing Ltd, UK 2008) at 37

[90] R v. Porter [2006] EWCA Crim 560

[91] D.C Ormerod, “Indecent Photograph of Child - Criminal Justice Act 1988 s.160(1) - Possession

of Indecent Photograph of Child” [2006] Criminal Law Review 748, at 750

[92] Ibid

[93] Yaman Akdeniz above (n 89) at 40

[94]D. C Ormerod, above (n 91) at 750, 751

[95] D. C Ormerod and Tom Rees “Indecent photograph: Possession of Indecent Pseudo-photograph of Children” [2004] Criminal Law Review 1039, at 1040

[96] Ibid at 1041

[97] R v. Bowden [2000] 1 Cr. App. R (S) 26

[98] R v. Smith; R v. Jayson [2003] 1 Cr. App. R. 13

[99] Sexual Offences Act 2003 s.48

[100] Ibid s.49

[101] Ibid s.50

[102] Susan S. M. Edwards, “Prosecuting ‘Child Pornography’: Possession and Taking of Indecent Images of Children” (2000) 22 Journal of Social Welfare and Family Law at 1

[103] Alisdair Gillespie, “The Sexual Offences Act 2003: Tinkering with ‘Child Pornography’ ” (2004) 361 Criminal Law Review, at 1

[104] Louis Henkin, “Morals and the Constitution: The Sin of Obscenity” (1963) 63 Columbia Law Review 391, at 395

[105] Alisdair Gillespie, above (n 103) at 4

[106] Alisdair Gillespie, above (n 103) at 4

[107] Sexual Offences Act 2003 ss. 48(2)(b), 49(2)(b) and 50(2)(b)

[108] Alisdair Gillespie, above (n 103) at 4, 5

[109] Coroners and Justice Act 2009 s. 62(6)

[110] Coroners and Justice Act 2009 s.62(7)

[111] Alisdair Gillespie, Child Pornography Law and Policy (Routledge, 2011 UK) at 165

[112] Ibid at 167

[113] R v. Stanford [1972] 2 QB at 398

[114] See R v. Smith; R v. Jayson, above (n 98)

[115] Yaman Akdeniz, above (n 89) at 68

[116] Yaman Akdeniz, above (n 89) at 69

[117] [2003] 1 Cr.  App. R. 28 at 10

[118] Alisdair Gillespie, above (n 84) at 33

[119] [2003] EWCA Crim 2416

[120] Anthony Beech et al, “The Internet and Child Sexual Offending: A Criminological Review” (2008) 13 Aggression and Violence Behaviour 216, at 217

[121] Philip Jenkins, Beyond Tolerance: Child Pornography on the Internet (New York University Press, London 2001) at 99

[122] Max Taylor and  Ethel Quayle, Child Pornography: An Internet Crime (Bruner-Routledge, New York 2003) at 159

[123] Ibid at 160

[124] Philip Jenkins above (n 121) at 55

[125] Philip Jenkins above (n 121) at 53

[126] Philip Jenkins above (n 121) at 92

[127] Max Taylor and Ethel Quayle above (n 122) at 140

[128] Max Taylor and Ethel Quayle (above n 122) at 131

[129] Max Taylor and Ethel Quayle above (n 122) at 132

[130] Philip Jenkins above (n 121) at 95

[131] Julia Davidson and Petter Gottschalk (eds), Internet Child Abuse: Current Research and Policy (Routledge, New York 2011) at 116

[132] Max Taylor and Ethel Quayle, above (n 122) at 135

[133] Julia Davidson and Petter Gottschalk, above (n 131) at 35

[134] Philip Jenkins above (n 121) at 6

[135] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 2171 UNTS 227 (CRC),  art 34(a)

[136] Ibid art 34(c)

[137] Vitit Muntarbhorn, “Report of the Special Rapporteur on Sale of Children, Child Pornography and Child Prostitution” (1995)  E/CN.4/1991/51 at 58

[138]Jaap E. Doek “The CRC 20 years: An overview of some of the major achievements and remaining challenges” (2009) 33 Child Abuse and Neglect 771 at 775

[139] Suzanne Ost, Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge University Press, New York 2009) at 226

[140] Convention on the Rights of the Child, above (n 135) art 10(1)

[141] Convention on Cybercrime,  European Treaty Series No. 185

[142] Ibid art 9

[143] Ibid art 9(1)

[144] Ibid art 9(2)

[145] Ibid art 9(4)

[146] Alisdair Gillespie, Child Pornography: Law and Policy (Routledge, USA 2011) at 297

[147] Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Council of Europe Treaty Series No. 201)

[148] Ibid art 20

[149] Council Framework Decision (EC) 2004/68/JHA on combating the sexual exploitation of children and child pornography [2003]

[150] No need for ratification

[151] Council Framework Decision above (n 149) art 3.1

[152] Yaman Akdeniz above (n 89) at 191

[153] Proposal for a Directive of the European Parliament and of the Council on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography Repealing Framework Decision 2004/68/JHA, (2010) 2010/0064 (COD)

[154] Under the Treaty of Lisbon

[155] Proposal for A Directive of the European Parliament and of the Council above (n 153), art 2(b)(ii)

[156] Yaman Akdeniz above(n 89) at 223

[157] Yaman Akdeniz above (n 89) at 229

[158] Internet Service Providers Liability, <http://www.ispa.org.uk/about_us/page_16.html> accessed 1 June 2011

[159] Yaman Akdeniz, above (n 89) at 253

[160] Yaman Akdeniz above (n 89) at 257

[161] Andrea Dworkin, “Against the Male Flood” in Drucilla Cornell (ed), Feminism and Pornography (Oxford University Press, New York 2000) at 27

[162] International Centre for Missing and Exploited Children, Child Pornography: Model Legislation and Global Review “Report” (6th edn, 2010) <http://www.icmec.org/missingkids/servlet/PageServlet?LanguageCountry=en_X1&Pageld=4346> accessed at 1 June 2011, at iii 

[163] Ibid at iii

 

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