Viewing child pornography is coming to be equated with criminal responsibility for rape. This has worrying implications for liberty and the law.
When does a picture of a naked child become ‘child pornography’? Would the description of a sexual encounter between an adult and a child constitute child-porn, or does the definition only extend to pictures? Does pornography lead to sex crimes?
Ageing rock star Pete Townshend was recently released on bail after he admitted accessing child pornography websites. Townshend had issued an emotional statement the previous weekend. He admitted visiting such sites, but said that he had done so for legitimate reasons. Meanwhile, the police operation code-named ‘Ore’ is said to involve around 7000 UK suspects, and to include policemen, former Labour ministers, magistrates and even a judge (1).
Common sense would suggest that committing rape is much more serious than looking at a picture. But it seems that the law is beginning to equate criminal responsibility for the two. The logical consequence of this situation is ‘thought crime’, where a person is penalised for what he may have been thinking when viewing an image, regardless of whether he has caused actual harm to a child.
Furthermore, it is admitted that the evidence as to child pornography, and its prevalence on the internet, is patchy. Much of the hard core child pornography to be found on the internet was not produced recently, but dates back several decades. To hold viewers of such pornography as somehow complicit in the abuse of children is a legal absurdity.
The law on child pornography
The UK law on child pornography is becoming increasingly punitive. Under
section 1(1) of the 1978 Protection of Children Act, it is an offence for a
‘(a) take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child; or
(b) distribute or show such indecent photographs or pseudo-photographs; or
(c) have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
(d) publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.’
The term ‘pseudo-photograph’ is used in the Protection of Children Act 1978,
as amended by the Criminal Justice and Public Order Act 1994, and in section
160 of the Criminal Justice Act 1988, to include images made or manipulated
by computer which are not technically photographs. It is possible, for example, to produce a ‘pseudo-photograph’ by ‘morphing’ a picture of adults to make them look like children.
The offence of possessing an indecent photograph or pseudo-photograph of a child is a criminal offence under section 160(1) of the Criminal Justice Act 1988. The maximum penalty was six months’ imprisonment from a magistrates’ court. Section 41(3) of the Criminal Justice and Court Services Act 2000 has now made the offence triable either before a magistrate or before a jury in a Crown Court, with a maximum penalty of five years’ imprisonment (on indictment). This applies to offences committed on or after 11 January 2001, when section 41 came into force.
The maximum penalty for all the offences under section 1 of the 1978 Act was originally three years on indictment. But this was increased to 10 years by section 41(1) of the Criminal Justice and Court Services Act 2000. Again, the increased penalty applies to offences committed on or after 11 January 2001.
The Home Office’s Sentencing Advisory Panel recently undertook a consultation exercise on sentencing guidelines for judges in child pornography cases. The panel favours a ‘get tough’ approach. Its approach, however, suggests that the panel is influenced by political correctness and individual opinion rather than by a more scientific, evidence-based approach.
The lack of evidence
The Home Office’s Sentencing Advisory Panel admits that it is impossible to assess the prevalence of child pornography offences with any degree of accuracy. It immediately goes on to opine that the cases coming to court are ‘the tip of the iceberg’. This is speculation: even those who specialise in researching child pornography confess that they know little about it.
The panel referred to the COPINE project (Combating Paedophile Information Networks in Europe) at the University of Cork. This has a reference database of more than 80,000 still pictures and a large number of video sequences, including examples of most of the material publicly available on the internet (2).
Max Taylor, professor of applied psychology and director of the COPINE Project, presented a paper to the Second World Congress Against Commercial Sexual Exploitation of Children in December 2001, entitled Challenges and Gaps. He acknowledged that: ‘we have little understanding of the individual and collective processes that give rise to the production and distribution of child pornography in general, and on the internet in particular. Indeed, given the amount of legislative attention these issues have attracted, it is difficult to find another area of substantial policy
development that has been based on such little empirical evidence.’ (3)
Taylor pointed out that the work done by COPINE suggested that, while collecting child pornography on the internet may be primarily related to sexual fantasy, it may also draw on other factors related to collecting, social facilitation and risk-taking. Among other factors, he notes that relatively few child victims have been identified.
Child pornography covers a wide range of images and ages. Some is clearly repulsive. But given the lack of ’empirical evidence’ about it to which Taylor refers, we should surely question the assumptions upon which the highly punitive character of UK law regarding child pornography is now based: namely, that it is a prevalent problem, that its users are necessarily paedophiles, and that children are harmed in its production, or as a result of its production.
Back in 1999, Max Taylor presented a paper entitled ‘The nature and dimensions of child pornography on the internet’ to an international conference on combating child pornography on the internet in Vienna. He made the following points:
— Much of the core of the sexually explicit child pornography currently available on the internet is 30 or 40 years old, and even older;
— Of the internet material to which his project had access, an estimated 85 to 90 percent was older than 10 to 15 years, with a large amount of that dating from the 1960s and 70s;
— ‘The relationship between adult sexual interest in children and child pornography is complex and poorly understood. Not all convicted child-sex offenders express an interest in child pornography. On the other hand, very many people who have no criminal record, and who seemingly have no known sexual interest in children, demonstrate an interest in child pornography by accessing and downloading images.’
— ‘The relationship between collecting child pornography and sexual assaults on children is also not clear.’ (4).
The Sentencing Advisory Panel did not quote Taylor’s carefully balanced observations. Instead it stated in its consultation exercise: ‘It is said that paedophiles use pornography in order to reinforce and justify their will to abuse. In some cases, pornography is shown to children to encourage them to think of sexual activity as normal.’ (5) But it produced no evidence to back up this assertion which implicates pornography in general.
The only source offered for its argument was an interview with one Ray Wyre in 1990, conducted by Catherine Itzin, who was editor and co-author of a book entitled Pornography: Women, Violence and Civil Liberties (6), an attack on the pornography industry. Wyre worked in the navy and studied at a Baptist bible college to become a minister before choosing probation work instead. Later, he ran a clinic for sex offenders. He is a qualified social worker. In 1988, he provided social workers in Nottingham, who approached him for advice about witchcraft, with a list of ‘indicators’ of satanic abuse. Social workers used these indicators to identify a local family as satanic abusers.
In what became a national scandal, it was subsequently revealed that satanic abuse was non-existent in this case or any other case where it was suspected, and the list was rapidly debunked (7).
Wyre’s interview was about his own beliefs. He asserted that ‘men’s fantasies are fuelled by pornography. It gives them ideas, and they act those ideas out’. He claimed that all pornography was ‘incredibly dangerous’, that it maintained ‘a climate of misogyny’, was a causative factor in violence against women, and ‘influenced the attitude of all men’. He regarded all men as ‘on a continuum of sexism in the same way all white people are on a continuum of racism’. He regarded emotional abuse as sexual abuse. And he mentioned a boy who, he says, was abused ‘within a satanic cult’. The pornography which Wyre mentioned being used as seduction aids by people seeking sex with minors was ‘ordinary “soft” pornography’, ‘“ordinary” heterosexual pornography’, and ‘gay literature’ (8).
As Nadine Strossen, president of the American Civil Liberties Union, says, the idea that porn leads to sex crime presupposes a particularly degraded view of humanity and the capacity to make choices, which appeals to anti-pornography feminists (9).
Among Itzin’s other contributors were journalist Tim Tate, author of a controversial book called Children for the Devil: Ritual Abuse and Satanic Crime (10), and Catharine MacKinnon and Andrea Dworkin, for whom pornography is hate speech, sex discrimination and sexual abuse.
MacKinnon argues that women cannot consent to sex anyway, because of male domination. She and Dworkin see heterosexual sex as degrading. Both campaigned unsuccessfully for civil laws to allow victims of sexual assaults to sue producers of porn, even Playboy. Itzin mechanically repeats their dystopian argument that until porn is eliminated, women never can be free (11). As a source used by the Home Office’s Sentencing Advisory Panel, then, Itzin’s book seems an embarrassing choice.
Camille Paglia has excoriated the MacKinnon-Dworkin view of pornography as preposterous, not least because rape and violence against women predate modern Western pornography by millennia. Paglia scorns the deficiencies in MacKinnon-Dworkin’s approach:
‘MacKinnon begins every argument from big, flawed premises such as “male
supremacy” and “misogyny” while Dworkin spouts glib Auschwitz metaphors at
the drop of a bra. Here’s one of their typical maxims: “The pornographers
rank with Nazis and Klansmen in promoting hatred and violence.” Anyone who
could write such a sentence knows nothing about pornography or
Paglia’s concerns are shared by Judge Richard Posner of the US Court of Appeals (seventh circuit), who says that Mackinnon is obsessed by pornography (13). Despite Paglia’s protests, the confused assumption that porn equals rape has become increasingly mainstream.
No law-abiding person condones children being raped or abused, on camera or off it. Clearly, in situations where children are sexually assaulted and the assaults are recorded, the photo or film is a record of criminal acts.
But it is misconceived to argue that the record ‘is’ the abuse. It is neutral.
It is bizarre to argue that someone who downloads and views a picture of an assault later on – perhaps 40 years later – is somehow complicit in the original assault. This makes no sense. We do not say that someone watching the destruction of the World Trade Center on TV is complicit in the hijackers’ acts. Even if that person believed that the Americans got what they deserved and cheered, he could not incur criminal liability for the crimes perpetrated on 9/11.
It is also absurd to argue, as some now do, that sexual victimisation of children is involved, regardless of what the picture actually shows (say, a toddler in a paddling pool or the bath, with no clothes on), or the context in which it was taken, or whether it even shows a real child (14).
Yet these fallacies have filtered into official policy. Of course, actual sexual abuse of children inspires particular revulsion. But it looks as though people who possess images of such abuse – or computer-generated scenarios, which do not display anything ‘real’ – must now carry the can for those who commit actual offences against children.
This scapegoating also involves the notion of ‘thought crime’. People are penalised for what they might be thinking when they view an image, regardless of whether they played any role at all in the actual abuse of children.
Equating images with abuse
The Sentencing Advisory Panel has given the Court of Appeal the following advice on sentencing: ‘Every indecent photograph or pseudo-photograph of a child is, with limited exceptions, an image of a child being abused or exploited.’ It says that adults ‘can’ suffer shame and distress knowing that indecent images of them as children are still in circulation (15).
And it goes on: ‘An offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images. Sentences for possession should also reflect the continuing damage which is done to the victim or victims, through copying and dissemination of the pornographic images.’ (16) (Note how the possibility of ongoing damage has become a certainty.)
COPINE developed a typology of images of children, with categories ranging from the relatively least problematic (for example: 2, Nudist (naked or semi-naked in legitimate settings/sources), and 3, Erotica (surreptitious photographs showing underwear/nakedness), to 9, Gross assault (penetrative assault involving adult) to 10, Sadistic/bestiality (sexual images involving pain or animal).
The Sentencing Panel rejected this typology, and has created its own for sentencing purposes ‘according to the degree of harm to the victims’ (17). But it may be unclear just who the ‘victims’ are, and the harm involved will frequently be a matter of speculation.
Furthermore, the panel states: ‘Images in COPINE categories 2 to 3 might be the subject of a dispute as to whether or not they were indecent. We have included them at level 1 of our scheme because there may be cases where an offender has been convicted, or pleaded guilty, solely on the basis of images of this nature.’ Level 1 of the panel’s scheme relates to ‘Images depicting nudity or erotic posing, with no sexual activity’.
The panel’s assumption that ‘Images depicting nudity or erotic posing, with no sexual activity’ and ‘Nudist [pictures] (naked or semi-naked in legitimate settings/sources)’ can be criminal was considered by the Court of Appeal in November 2002. The court disagreed that nudity in a legitimate setting, or surreptitious photos of underwear, were pornographic. But it agreed that ‘erotic posing’ was. What is an erotic pose?
Donatello’s ‘David’ would probably fall foul of the new sentencing criteria while Bronzino’s ‘Allegory of Venus with Cupid’ certainly would. People like Lewis Carroll and Baron Wilhelm von Gloeden took nude photographs of girl-children, and boy-teens, in the nineteenth century. If downloaded from the internet, it seems that they too could still be suspect.
It seems illogical that possession of such images downloaded from a computer should constitute a crime, while possession of a coffee-table artbook is not.
The current scare over child pornography, then, has two perverse consequences: ultimately, its chilling effect requires the censorship of just about everything; and its repressive measures fuel interest in the very thing that it seeks to suppress.
Barbara Hewson is a barrister at Hardwicke Civil
Who’s got a dirty mind?
(1) ‘A “paedophile” witch-hunt?’ Independent, 17January 2002; ‘Paedophiles: The Police Hunt’ Independent on Sunday, 19 January 2002
(2) Sentencing Advisory Panel, “Sentencing of Offences Involving Child Pornography: Consultation Paper” January 2002, paras. 31, 37. See also paras. 32, 36, 41
(3) See the COPINE Project website
(4) See the COPINE Project website, ‘Published Material’
(5) Sentencing Advisory Panel, Consultation Paper, para. 29, n.3. Wyre is on the statutory list of consultees whom the Panel must consult, by the Lord Chancellor’s direction under section 81(4)(a) Crime and Disorder Act 1998. On Wyre’s work, see All Wyred up Achilles Heel, Issue 13 Summer 1992. See also Ray Wyre Associates
(6) Pornography: Women, Violence and Civil Liberties Catherine Itzin (ed.) (OUP, 1992; reprinted 2001). Wyre’s interview is Chapter 14, ‘Pornography and Sexual Violence: Working with Sex Offenders’
(7) See Intimate Enemies: Moral Panics in Contemporary Britain, Philip Jenkins, (Aldine de Gruyter, 1992) pp. 85, 97, 158-61, 169-71, 179, 191-2; ‘The Making of a Satanic Myth’ Rosie Waterhouse, Independent on Sunday 12 August 1990. The Report by a Joint Enquiry Team into the Nottingham débacle is here. And see Child Protection Questions by Jennie Bristow
(8) Pornography: Women, Violence and Civil Liberties Catherine Itzin (ed.) (OUP, 1992; reprinted 2001) p243-4, 236, 241, 244, 246
(9) Nadine Strossen, Defending Pornography (NYU, 2000), p146-7
(10) Children for the Devil: Ritual Abuse and Satanic Crime, London: Methuen, 1991. It was the subject of a successful libel action by a policeman who investigated the Nottingham case: see The Media and the Myth
(11) “The Child Pornography Industry: International Trade in Child Sexual Abuse” Tim Tate, “Pornography, Civil Rights and Speech” Catharine A MacKinnon, and “Against the Male Flood: Censorship, Porngraphy and Equality” Andrea Dworkin, in Pornography: Women, Violence and Civil Liberties Catherine Itzin (ed.) (OUP, 1992; reprinted 2001) chs11, 23-4; Feminism Unmodified Catharine A MacKinnon (Harvard, 1987) chs6-8, 11-16; Towards a Feminist Theory of the State Catharine A MacKinnon (Harvard, 1989) chs7-12; Only Words Catharine A MacKinnon (Harper Collins, 1994), chapter 1, 3
(12) “The Return of Carry Nation: Catharine MacKinnon and Andrea Dworkin” Camille Paglia, in Vamps & Tramps (Penguin, 1995) p110-1. And see Pornography in a Free Society Gordon Hawkins & Franklin E. Zimring, (Cambridge, 1988) ch 6
(13) Quoted by Defending Pornography Nadine Strossen, (NYU, 2000), p141. And see Sex and Reason Richard A Posner, (Harvard, 1992) p131-2
(14) ‘Typology of Paedophile Picture Collections’, Taylor M., Holland G. and Quayle E., The Police Journal 2001 74(2) 97-107. See p 7-8 of this paper on the COPINE site
(15) “Advice to the Court of Appeal – 10 Offences Involving Child Pornography”, Sentencing Advisory Panel, August 2002, paras 10, 12. The Court of Appeal issued guidelines based on the Panel’s advice in R v Oliver and others on 21 November 2002
(16) “Advice to the Court of Appeal – 10 Offences Involving Child Pornography”, Sentencing Advisory Panel, August 2002, para 13
(17) “Advice to the Court of Appeal – 10 Offences Involving Child Pornography”, Sentencing Advisory Panel, August 2002, para 20, Table on page 5
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