Child pornography

From LawGuru Wiki

Generally, child pornography is an illegal form of pornography, featuring minors. The term "child" is defined for this purpose by each country's child pornography laws, and these laws also set forth criteria to use in determining whether a particular depiction of a child is child pornography.


[edit] Definitions

The definition of "child pornography" differs from country to country. Most prohibit visual depictions of sexual activities involving actual children under a specified age. Some countries go further and prohibit all depictions of nudity of minors, whether or not the minor is depicted in an erotic pose or as engaging in a sex act. The broader prohibitions have led to controversy over pictures that are considered to have artistic merit; works by several prominent photographers, including Sally Mann and Jock Sturges, have been challenged as child pornography and sometimes banned. Still, in some countries, naturist magazines with depictions of nude children do not fall under the definition of child pornography, and are easily available.

Some countries prohibit visual depictions even when no actual children were involved in the making of the image. Such depictions may including paintings, drawings, or computer-generated images. (See "Simulated child pornography" below.) In some countries, not only visual depictions but, also, written works may fall within the definition of child pornography.

The minimum legal age for a depicted person varies from country to country. Some countries set one age for "hardcore" pornography and another for "softcore" pornography.

Most countries' laws provide an exception for materials that have artistic merit. Some prominent examples of this principle are Romeo and Juliet (the play and films), and Lolita (the novel and films). Subsequently, "lolita" has become a common codeword for child pornography, legal or not.

[edit] Canada

Under the Criminal Code provisions in Canada, material that shows someone who is or is "depicted as being" under 18, and is engaged or "depicted as engaged" in explicit sexual activity, is classified as "child pornography". Photographs of the genitals or anal region of someone under 18, "for a sexual purpose", are caught, as are written texts that advocate or counsel sex with a child.

The penalty for making or distributing child pornography is up to 10 years in prison. Possession or "accessing" carries a potential sentence of up to 5 years.

There is a defence for works that have artistic merit, or an educational, scientific or medical purpose. The Supreme Court in Sharpe gave the defence of artistic merit a broad interpretation "Simply put, artists, so long as they are producing art, should not fear prosecution."

In addition, the Supreme Court "read in" exceptions for personal writings and visual depictions intended for private use, including diaries, self-photography and drawings. There was a concern that both private expression would be caught by the provisions, and also depiction of lawful activity (consensual sex between married 18 year olds, for example) would be caught.

Parliament has responded with a proposed bill to narrow the exceptions. In particular, there is a concern that the "artistic merit" defence is open to abuse and, at the same time a worry that broad provisions may criminalize artistic works like Lolita or fail a subsequent court challenge.

[edit] Germany

Article 184 b of the German Penal Code (StGB - "Strafgesetzbuch") penalizes acts concerning child pornography. Child is defined as a person younger than 14 years of age.

According to the para. (4) of Article 184 b, the mere possession of, or attempt to acquire, any material reflecting a true or realistic incident of child pornography will be punished with a fine or prison up to two years. The procurement, distribution or production for distribution of such material is punished with prison of three months up to five years (paras. (1) and (2)); if the perpetrator acts with commercial intent or as a member of an organisation for the continuous commitment of such acts, the punishment will be imprisonment from six months up to ten years (para. (3)).

Sound and text can also be considered pornography.

The German legal system applies international jurisdiction, so that any act of child pornography will be prosecuted in Germany according to German law, even if the act was not committed on German territory (Article 6 StGB - "Acts abroad against objects of international legal protection").

[edit] New Zealand

In New Zealand any material that promotes or supports the sexual exploitation of children or young people, or tends to promote or support it, is considered 'objectionable' and is illegal. The definition can apply to text (including fiction), art, cartoons, still images or moving images. It can also apply to images of adult models who appear to be younger than their actual age. Few other countries have such broad definitions of child pornography.

Possession of child pornography is an offence punishable by up to 5 years imprisonment. Distribution of child pornography is punishable by up to 10 years imprisonment. These penalties were introduced in 2005, following widespread concern that New Zealand's penalties were too lenient. Previously, penalties were a NZ$2,000 fine for possession and 1 year's imprisonment for distribution.

Domestic enforcement of child pornography laws is primarily conducted by Inspectors of the Department of Internal Affairs. They monitor New Zealanders trading child pornography online and in the real world. They have a near 100% conviction rate for child pornography offenders and enjoy excellent co-operative relationships with overseas law enforcement agencies. The New Zealand Customs Service prosecutes those who import child pornography.

[edit] United Kingdom

Under United Kingdom law, a "child pornography" image is an "indecent photograph of a child"; there is no specific requirement of sexual content, as nudity can be sufficient for an image to be indecent. Similarly, "bikini" shots might be considered indecent. With a 2003 Act, the word pornography is used for the first time, defined to mean that "indecent images are recorded". Indecent photographs are defined in the Protection of Children Act 1978, which forbade the creation, showing, distribution, possession for showing or distribution, and advertisement of such material; the Act was later amended so as to include such things as simulated images, known by the law as indecent pseudo-photographs of children. The mere possession of such material was prohibited by the Criminal Justice Act 1988.

[edit] Possession

In R v Ross Warwick Porter (2006) EWCA Crim 560 the defendant was convicted of making indecent photographs of a child under s1(1)(a) Protection of Children Act 1978 and of possessing indecent photographs of children contrary to s160(1) Criminal Justice Act 1988. The appeal concerned photographs that had been deleted before 5 November 2002, but were still recoverable from the hard disk with the use of specialist forensic techniques and equipment provided by the US Federal Government which would not have been available to the public. There was no evidence that the appellant had attempted to acquire any of this hardware or software, or to retrieve any of the deleted data. As a general rule to be applied in the special case of deleted computer images: if a person cannot retrieve or gain access to an image, he or she no longer has custody or control of it. It is the equivalent of destroying or disposing of a hard copy photograph. Thus, a person who cannot retrieve an image from the hard disk drive is not in possession of the image simply because he or she is in possession of the hard disk drive and the computer. In each case, the jury should be directed to consider the knowledge and expertise of the individual to assess whether that person could retrieve the data. As retrieval technology becomes more available, it will be more likely that the jury will conclude that the user could, with little effort, retrieve deleted data.

[edit] United States

In the United States, child pornography is prohibited under both federal and state laws with some state laws including more or less restrictive definitions compared with federal law. Under federal law, child pornography is defined as visual depiction of minors (i.e. under 18) engaged in a sex act such as intercourse, oral sex, or masturbation as well as the lascivious depictions of the genitals. Various federal courts in the 1980s and 1990s have concluded that "lewd" or "lascivious" depiction of the genitals does not require the genitals to be uncovered. Thus, for example, a video of underage teenage girls dancing erotically, with multiple close-up shots of their covered genitals, can be considered child porn.

Questions arose during the 1990s as to whether depictions of mere nudity of minors - such as those found in some nudist magazines and videos - were legal under federal child porn laws. A court case in 1999 determined that mere nudity involving minors does not come under the federal definition of child porn, nor does it necessarily qualify as obscene, as the Supreme Court had ruled previously that mere nudity in and of itself does not constitute obscenity. This ruling does not specifically address state laws, which may differ. For example, broader definitions in some states have created controversy when parents were arrested for taking photographs in which their small children were depicted nude during usual daily activities, such as bathing.

Further complicating the issue in the U. S. is that there is no clear legal definition in federal or state law as to what exactly constitutes a "lewd" or "lascivious" exhibition. In addition, these terms are often to be interpreted according to "contemporary community standards." Defining the standards of a community where residents come from a wide variety of ethnic and cultural backgrounds, and where moving from place to place is commonplace so that the nature of a community is continually changing, has proved extremely challenging.

[edit] Legislation

Production and sale of child pornography is generally illegal in most developed countries, although national regulations vary widely. Some countries, including the United States, Canada, the United Kingdom, New Zealand and The Netherlands, outlaw mere possession. Others have no special legislation regarding child pornography. There, production of child pornography is usually prosecuted as child abuse and illegal production and distribution of pornographic material. Illegal distribution of pornography is prohibited, but there is no law governing distribution of child pornography specifically. In many countries (but not in U.S.) downloading and possession of child pornography is not specifically prohibited. In Japan child erotica was legal until 1999, when it became illegal following the passing of Protecting Children Online law.

Child porn was de facto and de jure allowed in most American and European countries before the 1980s. During this time porn magazines were published featuring photos of naked children and of children having sex with other children and with adults. These magazines operated somewhat openly and even solicited photos from their readers' families. In late 1970s, using dubious statistics, a number of journalists and researchers attracted attention of the public to child pornography. In 1977, the Kildee-Murphy proposal prohibiting child pornography was made law in the United States. Several other countries followed with similar legislation. Shortly after these laws were passed the magazines were closed voluntarily, as several publishers claimed that child pornography constituted only a few percent of their business.

[edit] Issues surrounding prohibition

Laws in various jurisdictions often treat the production, distribution, and possession of child pornography differently. Each aspect of prohibition has some distinct justifications and counter-arguments.

[edit] Production

The production of child pornography may involve child sexual abuse. It can also show natural sexual play among children or masturbation. The production of simulated child pornography (see below) does not involve real children. Some argue that child abuse and/or sexual abuse laws should be the standard and basis for prosecution. In some jurisdictions, production is explicitly prohibited regardless of whether there is a risk of children being actually harmed.

Few producers are caught and prosecuted, however. Most people are prosecuted merely for distribution and/or possession of child pornography, discussed below.

[edit] Distribution

The distribution of child pornography increases its availability. Some argue prohibition of distribution may serve to protect the subjects of the material, who cannot give informed consent, and may suffer additional trauma from the knowledge that these images are being distributed.

Commercial trade in child porn with the producers motivates them to produce further pornography for monetary reasons, while commercial trade in materials obtained from other sources may indirectly stimulate the existence of the child porn market through infamy. Some argue that non-commercial trade and sharing of existing child porn can serve as a substitute for new materials and lead to decrease in production.

[edit] Possession

It has been suggested that the consumption of child pornography encourages sexual interest in children and lowers the threshold of a person's willingness to engage in sex with a child. It has also been asserted that such material can be used to persuade the child to engage in sexual activity with an adult. This argument also supports banning simulated or fictional child porn or porn with young-looking actors above the age of consent. On the other hand, it is argued that these materials potentially give pedophiles a sexual outlet, thereby lowering sexual frustration and the risk of committing abuse. Possession of child porn is frequently used to provide additional charges against people accused of other sexual crimes.

It has been asserted by some that simple possession is a victimless crime, and should be prosecuted as such, but this has been vigorously refuted by others, and laws continue to view it as involvement in the abuse itself <ref>"Anger at child porn sentence", BBC News, 29 May 2001. Retrieved 15 May 2006.</ref>. One commentator has equated this with the idea of a "thought crime":

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. <ref>"Fetishising images", spiked, 23 January 2003. Retrieved 15 May 2006.</ref>

According to the UK children's charity, NCH, it has been reported that many child sex offenders acknowledge that exposure to child sex images fuel fantasies and played an important part in leading them to commit physical sexual offences against children <ref>"Internet porn 'increasing child abuse'", Guardian, January 12 2004. Retrieved 15 May 2006.</ref>.

According to a 2005 study by Internal Affairs, "young people aged 15 to 20" were the largest demographic group of those convicted of child pornography possession. <ref>"Teens top child porn viewers", The New Zealand Herald, 14 January 2005. Retrieved 15 May 2005.</ref>

[edit] Age of consent

In many countries, including the US, Canada, the UK, and the Netherlands, "children" are defined to be persons below the age of 18. In Australia, child pornography is defined to include persons under 16 years. However, although material depicting 16 and 17 year olds is not legally considered child pornography, it is still illegal. It is rated as "Refused Classification", and thus illegal to sell or distribute. The European Union recommends the harmonization of the age limit to 18 years. The Netherlands raised the age limit of a "child" to that number in October 2002. The UK Sexual Offenses Act 2003 did the same. It was compulsory to dispose of possessions that became illegal. The age limit in Germany and Iceland is 14 years.

Images of legal activities are not always legal. For example, in the U.S., child porn includes anyone under 18; however, many states have an age of consent lower than 18. For some states the age of consent depends on the age gap between partners as well as the age of the young partner. Therefore, it may be legal to have sex with someone under 18 but not to take pictures of that person in sexual situations. The young person is not even allowed to make such a picture of themselves for personal use. One main reason for this disparity is that child pornography is primarily addressed under federal law, while age of sexual consent is solely a state issue.

Since the passage of the Sexual Offences Act 2003, UK law in general prohibits images of 16 and 17 year olds as child pornography, even though they are above the age of consent (16). However, there is an exception to the law, which provides that a person (who may be over 18) who is married to, or in an enduring family relationship with, a 16 or 17 year-old child may take or make indecent photographs showing the child with no other person than themselves with the child's consent, although it is illegal for the sexual partner to show or distribute them to any other person. <ref>Sexual Offences Act 2003, Chapter 42, Section 45, Office of Public Sector Information. Retrieved 15 May 2006.</ref> There is no explicit defence where the child has photographs of themselves, but it is a general principle of English law that the person whom a law is intended to protect cannot be prosecuted for an offense created by that law.

[edit] Other forms

Although usually thought of and legislated in terms of photographs and motion pictures, child pornography can also take other forms, which are often addressed differently, or may not be legally recognized as child pornography in all jurisdictions.

[edit] Simulated

Images can be created which convincingly appear to involve actual under-age persons, but in fact do not. Originally this was done with adult actors who were disguised or could "pass" as minors. As digital animation technology has progressed, it has become possible to generate convincing simulations of child actors.

Proponents of prohibiting such materials argue that they might encourage child molesters and, when shown to a child, may give the child the impression that the depicted acts are normal (the term grooming is used in this connection); prohibition of possession could help prevent it from being shown to a child. A fact sheet released by the Department of Justice also argued that if "simulated child pornography" remains legal the prosecution will have to prove individual images were not digitally created. <ref>"FACT SHEET PROTECT ACT", United States Department of Justice, 30 April 2003. Retrieved 15 May 2006.</ref> Opponents of the prohibition claim that simulated child pornography does not directly harm children. In the United States, these opponents believe such materials should fall under the First Amendment guarantee of freedom of speech.

The United States Supreme Court decided in 2002 that the previous American prohibition of simulated child pornography was unconstitutional (Ashcroft v. Free Speech Coalition). UK law has dealt with simulated images quite differently since 1994, when the Criminal Justice and Public Order Act introduced the legal definition of an "indecent pseudo-photograph of a child", which is prohibited as if it were a true photograph. On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" as illegal. [1] [2] German law does not discriminate between actual or "realistic" sexual depictions of children. [3]

Section 163.1 of the Canadian Criminal Code outlaws pornographic images which depict the subject as being under the age of 18. In October 2005, Canadian courts sentenced an Edmonton, Alberta man to one year of community service for importing manga depicting child sex, possibly the first such case in Canada. [4] It should be noted, however, that the man was on probation for possession of non-simulated child pornography, resulting in his arrest.

[edit] Written

In some countries textual material describing sexual activities involving children is legally classified as child pornography while in other countries, for example the United Kingdom, it is not prohibited in itself, but is caught under general laws controlling indecency and obscenity. In yet other countries, most significantly the United States, it is legal; written child pornography is legally protected by the US Constitution as long as it is not judged obscene. As a result of its general legality in the United States, written child pornography is easily available on the Internet.

Due to its widespread availability, countries in which it is prohibited have not always actively sought to enforce the legal prohibition against it. In general, people possessing or distributing this material are only charged if they come to the attention of law enforcement, most commonly while being investigated for other crimes (such as possession of visual child pornography, or child sexual abuse.)

The prohibition against written child pornography can extend even to materials produced by pedophiles for their own personal consumption and not revealed to anyone, such as diaries or journals in which they record their fantasies. Several individuals have been prosecuted for keeping such diaries. Some have argued that this violates their right to freedom of thought.Template:Fact

[edit] Sources

Production and distribution of child pornography is generally separate from other forms of pornography, and the adult film industry has taken strong efforts to separate itself from and publicly oppose child pornography.

The majority of internationally available hardcore child pornography is produced in developing countries in South-East Asia and Central America, and in the former Soviet Union and Eastern Europe. Germany was one of the main sources of naturist child erotica in the past. Japan was and still is one of the leading producers of softcore child pornography, which was outlawed there only in 1999, after much international pressure; enforcement remains somewhat sporadic. A lot of modern legitimate softcore pornography (so-called Lolita art or Pret art) is also made in Russia and other ex-Soviet-Union countries.

[edit] Commercial production and distribution

During the 1960s and 1970s, Danish company Color Climax Corporation openly produced and distributed child pornography. As jurisdictions began prohibiting the material, the company stopped producing it, and in fact avoids mentioning that part of its history. Color Climax continued to be one of the best-known producers of pornography in the world.

By most accounts, by the 1980s there was little child pornography being commercially produced. Most of what exists either originates from private production or was produced commercially in the 1960s and 1970s. Later investigations have found only isolated instances of commercial production and distribution. The loss of anonymity that comes with making payment, combined with the availability of free material, inhibits demand for commercial product, and the loss of anonymity that comes with receiving payment inhibits the supply. Media reports about child pornography "rings" refer mostly to private, non-commercial exchange.

Non-commercial distribution significantly increased with the advent of the Internet, which enabled distribution via file sharing, IRC, and Usenet. It is also exchanged in private circles using FTP servers. In Germany there is one case of investigation for possession of child pornography per year among 20,000 people, and the number remains constant. Of these, 2.7 percent are commercial or involve organized groups.

Organized networks of child pornography distribution do exist, however. Many such networks are operating in more than one country, making it harder for any single law enforcement agency to shut them down. An international sting operation aimed at a child pornography network called the Wonderland Club resulted in more than 100 arrests in 14 states.

Some sources claim that much or most of the commercially offered material found online is actually bait deployed by law enforcement agents as "honeypots". The NAMBLA newsletter once warned its readers that most of the solicitations for child pornography are actually sting operations. Judith Levine cites two sources in her book Harmful to Minors on this. One is researcher Lawrence Stanley, who in a 1980s study "concluded that the pornographers were almost exclusively cops." And sources in the police agreed:

In 1990 at a southern California police seminar, the LAPD's R. P. "Toby" Tyler proudly announced as much. The government had shellacked the competition, he said; now law enforcement agencies were the sole reproducers and distributors of child pornography. (p. 37) However, this does not seem to be the case for non-commercial exchange, which became much more prevalent with the advent of the Internet.

There exist a number of softcore child nudity and erotica sites that are apparently tolerated. These include sites featuring child nudist photos and videos and sites featuring clothed children in sexually titillating poses. These sites generally claim that the material they offer does not meet the legal definition of child pornography and thus is not child pornography, even if much of it seems to push the boundaries. Critics view the material on these sites as immoral even if it's technically legal.

Several arbitrary keywords are commonly used to search for or identify child pornography on file sharing networks. Some keywords have become sufficiently well-known that they are rarely used to identify actual child porn. In those cases most files with the given keyword show legal but young looking performers in an attempt to attract individuals looking for child porn.Template:Fact

The Kazaa file-sharing software disallows searches for those keywords as a matter of policy but several other networks allow them.

According to a list compiled by, "[email protected]", the label used by Richard Goldberg (who is currently on the FBI's Top Ten list), is the 7433rd "most popular keyword." <ref>"10,000 key words, listed by popularity", British Columbia Top 100, 15 September 2002. Retrieved 15 May 2006.</ref>

In 2004, Ukrainian police reported that, after an investigation in concert with the FBI, they had shut down a child pornography operation involving more than 1,500 underage girls as models. <ref>"Police Shut Ukraine Model Agency in Porn Crackdown", Reuters, 28 July 2004. Retrieved 15 May 2006.</ref> Police reported that the business had offices in Kiev and other Ukrainian cities.

[edit] International issues

The international nature of the Internet has made it difficult to stop dissemination of some images that, while legal in some jurisdictions, constitute child pornography in others. A good example comes from Britain. Until recently, it was legal for females as young as 16 to pose topless for mainstream tabloid newspapers (often as a "Page 3 girl") and for adult magazines. For example, British model Linsey Dawn McKenzie became a popular topless and nude model for European newspapers and magazines when she was 16, but wasn't allowed to pose for American magazines until she reached her 18th birthday. Images of her taken before her 18th birthday are commonplace on the Internet and often cannot be distinguished from those taken afterwards. Similarly, images and footage of American porn actress Traci Lords, who is infamous for having done most of her work whilst younger than the legal age in the US, are legally available in many regions and have subsequently become available via the Internet in areas where this material is still illegal.

[edit] Social perception

There is a strong negative stigma associated with child pornographyTemplate:Citation needed; most people don't want to be perceived as defending it. At times, legal photographs and art have been attacked on the grounds that they might be child porn. Although the number of such incidents is small, they arguably have had a chilling effect on legal expression.

In the late 1970s Jacqueline Livingston, a photography professor at Cornell University, was accused of child pornography. She wrote: "I was scorned by my friends, accused of child pornography and fired from my teaching job after exhibiting photographs of my son, my husband and my father in law in the nude." (14850 magazine, March 1994).

A U.S. couple were indicted for the production and possession of child pornography after a photo store clerk reported "suspicious" pictures containing images of the mother breast-feeding her child.<ref>"1-Hour Arrest", Dallas Observer, 17 April 2003. Last viewed 20 May 2006.</ref> Charges were dropped after the Dallas Observer reported on the incident.<ref>"Better Not Try Breast-feeding in Texas", Las Vegas Review-Journal (NV), 27 April 2003, at 2j.</ref> A teenager, who made photos of herself (involving nudity and sexual activity) and sent them to people she met in chat rooms, was charged with sexual abuse of children, possession and dissemination of child pornography Template:Fact.

An anti-piracy hologram on the Windows 95 box had an animation of a baby sitting next to a computer and then pointing to the computer where the Windows 95 logo appeared. The model, who was the infant son of the photographer, wasn't wearing a shirt, which led some people to the belief that he wasn't wearing pants either, even though he was visible only from the waist up. After government complaints, Microsoft had to change the hologram to one that didn't feature "naked children". <ref>"Windows brings out the Rorschach test in everyone", MSDN Blogs, 25 August 2003. Retrieved 15 May 2006.</ref>

An Australian local council in New South Wales decided to ban photography on certain council-owned property under the pretext that photographs of children at school events could "fall in to the wrong hands". Parents were advised that, in order for them to obtain photographs of their own children at such events, they would have to pay for official photographs. <ref>"Parents not very snappy", Today Tonight, 22 February 2005. Retrieved 15 May 2006.</ref>

Until the 20th century, artwork involving nude or erotic depictions of children was met with relative acquiescence (for example: Lewis Carroll). During the 20th century, attempts were made (sometimes successfully) to destroy such material, make it illegal, or remove it from public libraries. Though such depictions can sometimes be considered legal today, social pressure has mostly prevented the continued creation and ownership of photographs including nude prepubescents.

[edit] See also

[edit] References

<references />

[edit] External links

[edit] Laws

[edit] Law enforcement organizations

[edit] Other investigating organizations

[edit] Discussions

da:Børneporno de:Kinderpornografie es:Pornografía infantil nl:Kinderpornografie ja:児童ポルノ no:Barnepornografi fi:Lapsiporno sv:Barnpornografi zh:兒童色情

LawGuru Legal Forms

Search by category
Popular Forms: Accounting, Affidavits, Assignments, Attorney Forms & Guides, Bankruptcy, Bill of Sale, Business, Canadian Forms, Collections, Confidentiality, Contracts, Copyright, Corporations, Credit, Declarations, Deeds, Divorce, Employment, Entertainment Law, Family & Consumer, Family Law, Government, Health Care, Homestead, Indemnity Agreements, Intellectual Property, Internet, Landlord & Tenant, Leases & Rentals, Letters, Limited Liability Co., Living Trusts, Name Change, Non-Compete, Non-Disclosure, Notices, Parental Permissions, Partnership, Power of Attorney, Promissory Notes, Real Estate, Receipts, Releases, Sale of Goods, Spanish Forms, Technology, Trusts, UCC Forms, Wills, more...
Personal tools