Virtual Child Pornography

Over the years computer technology has become parts of our lives, with this growth of technology however the world has being asked to deal with issues that are changing the way lived or think until now.  It is well know that with the current technology growth the law has found it difficult to keep up with the way technology develops. Child pornography has become one of these issues. What started from magazines and limited to videotapes now is capable of entering any home that has access to the internet, making it a serious issue for every home.  Over two decades now, they where several approaches in order to tackle child pornography and virtual pornography. These approaches will be discussed bellow.

Since the mid-1970s the development of child pornography laws was a huge concern for the society. The need for laws preventing child pornography was huge because of the twins’ problem of child sexual abuse and child pornography[1].  The Williams Committee inquiry as well as the Protection of Children Act 1978 in England responded to these concerns and provided the first legal response in respect the children pornography.  Before this approach, explicit content involving children in photographs or videos could be only approached very broadly under obscenity and indecency legislation such as the Obscene Publications Act 1959 and 1964 in United Kingdom and under the Miller[2] obscenity standards in the case of United States. Currently child pornography is defined in national and international policy documents, such as the Council of Europe Cybercrime Convention 2001 which define child pornography in article 9(2) as any pornographic material that visually depicts: a) a minor engaged in sexually explicit conduct; b) a person appearing to be a minor engaged in sexually explicit conduct; c) realistic images representing a minor engaged in sexually explicit conduct. Similar approached was taken also by the UN Optional protocol.

The US approach in respect to child pornography started from the Ferber case; in this case the court offered five government interests for banning child pornography. Firstly the court said that there is evident beyond the need for elaboration that a State interest is safeguarding the physical and physiological well-being of minor is compelling.[3] The court in support of his decision continue saying that the use of children as subject of pornographic materials is harmful to the physiological, emotional and mental health of the child and that the regulation on  child pornography easily passes muster under the First Amendment.[4] Secondly, the government had an interest in drying the market from such content. Therefore the court held that the distribution of pornographic materials was related to the sexual abuse of children by at least two ways.  Firstly that the photos can consider a permanent record for the child and they may affect the child when they distributed and secondly the distribution network of child pornography must close in order for an effective control to exist.[5] Third, the court held that freedom of speech and press does not protect illegal activities. On the basis that advertising and selling of child pornography provide an economic motive and therefore such activity is illegal. Fourth the court did not believe that child pornographic materials would ever constitute an important and part of a literary performance or scientific or educational work[6].  Fifth in respect to whether the content will take protection under the First Amendment, the court held that it will depend on the content of the speech and that in case of children the balance is certainly with the children and speech can consider unprotected.  Furthermore the court introduced two categories of harms because of child pornography. The first kind of harm is the physical and physiological injuries inflicted to children that actual participate in pornographic movie or picture. This kind of harm also includes the harm made to children after the pornographic materials are viewed, distributed and advertised. The court referred to this kind of harm as direct harm. The court also took into account the further damage that can be inflicted when such material is distributed such as the infliction of harm in new victims. Taking into account the case of Osborne v. Ohio, the court noted that pedophiles use child pornography in order to seduce children in to sexual activities[7].  The court referred to this as the indirect harm and that was mainly the reason given to dry up the market from child pornography content. The court held that the government had to prevent children from both direct and indirect harm and therefore child pornography should be restricted in case of actual pornography because it produces a both direct and indirect harm; and in case of virtual should also be restricted because of the indirect harm produced. However the court did not hold to its restriction on virtual child pornography but in fact create a loophole and virtual child pornography could not be prosecute. In fact the court seemed to suggest that the utilization of simulations of children passed the constitutional muster[8]. As said above this created a loophole in which child pornographers could produce virtual pornography without prosecution and thus it become a safe harbor for child pornographers that produced materials that only cause indirect harm.

In order for this to be avoided the Child Pornography Prevention Act was introduced in 1996 in order to remove the loophole and ban virtual child pornography.  The act included criminal penalties on person who knowingly possessed, produced, sold, transported shipped, received, mailed or distributed including by computer any child pornography.[9] The Act defines child pornography as any visual depiction, including any photograph, film, video, picture or computer generated picture whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct[10]. It is quite clear from the Act words that the CPPA had a broad scope that was not only protected actual pornography but also wholly computer-generated virtual child pornography, morphed child pornography but also covers the production and production of such content.  Furthermore the act when a step further and used the words “appears to be” and “conveys the impression” in order to stop computer-generated images by advances technology.  The CPPA goal was to reduce the amount of virtual pornography used by child molesters to stimulate or whet their own sexual appetites, to destroy the trafficking network of child pornography and to protect the privacy of actual children whose innocent images are altered to create sexually explicit depictions.[11]

However the Supreme Court in the later case of Ashcroft[12] held that CPPA was unconstitutional. The court noted that, the CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produces without using any real children. In this respect the statute prohibit the possession or distribution of these images, which may have been created by using adults who looks like minors or by using a computer program[13].  According to the court this goes beyond the Ferber case which distinguish child pornography form other sexually explicit speech because of the states interest to protect the children from the production process.[14] Furthermore the court challenged the constitutionality of the CPPA considering that it was not serving to the government interests. In this case the court distinguished between direct harm and indirect harm, holding that under Ferber the prevention of direct harm was justified but that was not the case with indirect harm and that the CPPA did not justify it[15]. Also the court held that in order for speech to be recognized as an unprotected under the First Amendment it must have a causal link to the crime, meaning that in the Ferber case the speech was unprotected because a causal link exited between pornographic content depicting children and crime[16]. The causal link requirement explained in Ashcroft was used to eliminate the government’s interest theories of banning child pornography.  Firstly the link requirement eliminated the seduction theory which was developed, that virtual pornography should be banned because it will be use to seduce children in future, on the basis that there many other innocent things such as cartoons, video games or candy that may also be used for immoral purposes, yet none will expect to ban them just in case that they may be misused in future.[17] Second, the court dismissed the theory that child abusers use virtual child pornography to whet their desires, the court held that the encouragement of unlawful acts cannot consider sufficient reason to ban it. Third in respect to the elimination of child pornography from the market the court said that if virtual images were identical to illegal child pornography, the illegal images would have been substitute in the market by the virtual ones. On this basis the number of pornographers that would risk prosecution by abusing real children will be limited.

The main issue with this case was the different approach taken in this case from Osborne and Ferber in respect of the government’s interest in preventing indirect harm to children. Since the court in Ferber said that the distribution of such material is intrinsically related to the sexual abuse of children and in Osborne that pedophiles use child pornography to seduce children. In the Ashcroft case the court even denied it ever held that the protection from indirect harm in the case of Ferber and denied the protection from virtual child pornography as a compelling interest. [18]

A last point to be noted in this case is that since government had not compelling interest in banning virtual child pornography under the Ferber approach, there was only the Miller[19] obscenity approach which the government might use to ban virtual pornography.  Based on this approach since child pornography is obscene to most people, the Miller obscenity standard may apply and criminalize virtual child pornography. The court when to distinguish Miller form Ferber and held that it was never argued that obscenity was a theory that justified banning child pornography, real or virtual. Also since the government rely on Ferber; it would not be possible to rely on Miller since the Ferber court already distinguished Ferber from Miller holding that the standards of the two cases are totally different. The court went on to indicate the difference between the obscenity regulation under Miller and child pornography under Ferber. The court indicated that possession of child pornography is a crime under Ferber regardless of location of possession but their regulation against possessing obscene material in home.

Taking into this decision is clear that the ruling in this case has produced a great impact on the legal community and on the jurisprudence of the First Amendment. The first impact that this decision has is the heavy burden for the government prosecutor to prosecute any illegal child photographers since taking into account that technology can make virtual child pornography and actual child pornography unrecognizable.  Furthermore under this case, the US government cannot prosecute any child photographer unless it proves that the image in dispute is of an actual child. This case has also brought several issues to the lowest courts because of the different approach the lowers courts take in order to meet Ashcroft requirements. This was shown in the case of United States Vs Kimler where the court held that despite the Ashcroft decision juries are still capable of distinguishing between real and virtual photos. Another case to consider here is the case of United States v. Farrelly, where it was held that jury could determine whether an image was of actual children based on the image and that no additional evidence such as real identity required[20]. These cases shows how the lower courts adopted the principle that juries can distinguish a virtual image from a real image, even if the images are the only evidence provided to the court.

Taking into account the Ashcroft case it can be said that this case has opened the Pandora box.  Firstly taking the Ashcroft view that that if virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the substitutes and that few pornographers will risk prosecution by using real children relied on a false assumption of rationality. Taking into account that this opinion assumes that child pornographers are pragmatically rational, it can be said that is a false assumption since if child pornographers were pragmatically rational, they would not use or create any child photography in the first place. Second taking the court assumptions on the desirability theory, that virtual pornography will drive the real child pornography out of the market and that few child pornographers will risk prosecution by abusing real children it can be said that this is another wrong assumption. Firstly the explanation given by many child molesters’ experts is that these individuals derive sexual gratification from the pain inflicted on the children and therefore the producers of child pornography will not be interested in virtual content since it will not offered them the satisfaction that they take abusing and recording real children[21]. Also permitting and protecting the market of virtual pornography promotes the indirect harm to children from the use and production of virtual child pornography.  Lastly the desirability theory developed by the courts does not sufficiently outweigh the low value of virtual child pornography[22].

In the UK on the other hand the main piece of legislation that deals with child pornography is the Protection of Children Act 1978. The Act had been amended several times since it comes into force. It was change in order to cover offences of taking, making and distributing child pornography. The Act came to force in 1978 in response to the child pornography problem following calls by Mary Whitehouse, Chairwoman of the National Viewers and Listeners Association 1977.[23] In the UK prior the enactment of the Sexual offences Act 2003, there was no legal definition to define child pornography or even any legislation to include child and pornography.  For the purposed of the 1978 Act, a child was originally defined as any person under the Age of 16.[24] However this has changed now to a person under the age of 18 under section 45(2) of the Sexual Offenders Acts 2003. The change was made in order to comply with the international treaties for the harmonization of laws in relation to child pornography. The 1978 Act in respect of content under 7(3) includes photographs and pseudo-photographs that show children and indecent, to be treated for the purpose of the act as indecent photographs of children. Furthermore the definition of photograph under section 7(4) of the 1978 Acts was extended to include photographs in electronic data format follow the changes made by section 84(4) of the Criminal Justice and Public Order Act 1994. In respect to virtual or pseudo-photographs of children with the amendments made by the CJPOA 1994, both the 1978 and 1988 Acts criminalize the new form of child pornography generated by computer. In June 2009 the Ministry of Justice extended the national Hotline to enable the public to report online non-photographic visual depictions of the sexual abuse of children, meaning that the public can report images that are generated by computer, of the sexual abuse of the children.[25]

The approach to criminalize the creator and possessors of pseudo-photographs is based on that creators or possessors will end up abusing children and also to close future loopholes in the prosecution of such cases, as it may be very difficult to distinguish between virtual and real photograph[26].  Furthermore even if virtual photo can be created without the involvement of an actual child, there is a justifiable fear by the police that harm to children is associated with all child pornography. Taking into account the Williams Committee reports it was stated that “Few people would be prepare to take the risk where children are concerned and just as the law recognizes that children should be protected against sexual behavior which they are too young to properly consent to, it is almost universally agreed that this should apply to participation in pornography. “[27] Also there is evidence to support the fact that photographs of children engaged in sexual activity are used as tools for grooming children into pornography and sexual activity and it is argued that photographs or virtual photographs will be used for this purpose. Also is suggested by the finding of the US Senate Committee that pedophiles use any form of child pornography to stimulate and whet their own sexual appetites. Also the UN Special Rapporteur on the sale of children, child prostitution and child pornography warned that although this kind of photography does not involve the direct abuse of a child, it power to normalize images of child sexual abuse and incite sexual exploitation of children should not be underestimated and must be adequate addressed.[28]’ Furthermore there is also an anti-evasion aspect that people which accused of possessing or distributing child pornography may claim that the pictures they have in posses are not real children but rather virtual photographs. Therefore it can be argue that the making and availability of virtual photos could in theory restrict prosecutors in their ability to obtain convictions because it could be impossible to prove that the photos in question was made using real children. Also pseudo images might be traded for images involving real children. Others argue that criminalization of pseudo-photographs is base on morals and thus should be criminalized[29]. Furthermore a pseudo-image may consider as potent as a real image in fuelling the sexual fantasies of pedophiles, therefore if an individual generates fantasy from pornography then one might be concerned about the risks of the fantasy becoming a reality.[30]

The approach to criminalize computer generated images was supports by the Special Rapporteur of the Commission on Human Rights of the United Nations in October 1997. It was proposed by the Special Rapporteur to include an absolute prohibition on ‘pseudo-child pornography including the morphing of child and adult bodies to create virtual child pornographic images[31].  Furthermore the UN Optional Protocol on sale of children, Child Prostitution and Child Pornography, the Council of Europe’s Cybercrime Convention 2001, as well as the EU Council Framework Decision on combating the sexual exploitation of children and child pornography include provisions criminalizing various offences in relations to virtual photos.

Taking into account the two different approaches that each of these counties has taken it can be said that both this countries provide sufficient protection when it comes to real child pornography, the issues arose though when it comes to virtual child pornography.  Firstly we have seen the US position when it comes to virtual child pornography taking into account the Ashcroft case is that virtual child pornography cannot be prohibited on the fact that is protected by the freedom of speech under the First Amendment on the other hand though we saw the UK approach that will not tolerate any kind of virtual images. We have seen that when it comes to virtual child pornography it does not include the use of real children or images of children that can be identified. This can held to benefit the US position on the fact that we are talking about images that do not sexually abuse an actual child and therefore it cannot be criminalized. Criminalizing virtual images will be like criminalized the fantasies, imaginations or creations of people and therefore violating fundamental rights such as privacy and freedom of expression. This was ruled in Ashcroft where the court held that the distribution and possession of virtual images is protected by freedom of speech since there is actual child involved and therefore there is no victim. On the other hand, in support of the criminalisation of virtual child pornography firstly is that virtual images are used in the grooming process with real children. It is accepted that part of the grooming stage of the cycle of abuse may be to show children pornography and help normalize sexual activity.[32] This means that this kind of photos can be use by predators in the process to achieve their purpose which is nothing else than abusing the real children. An FBI study in 1998 showed that 81 percent of violent sexual predators deliberately used kiddy porn in the planning of their crimes. Furthermore this research shows many pedophiles have acted on their fantasies creating while viewing kiddy porn. Lifted the ban on virtual photos therefore not only will allow pedophiles to fantasize but will often lead to attempts of actual abusing real children.[33] Also taking into account the way technology has growth some authors suggested that as technology growth it becomes increasing difficult for law enforcement to differ between the real and the virtual.[34] Even if there are many that support that the same sophisticated technology that was used to create the virtual image could be use to distinguish between real and virtual under the US law it will be time consuming and very difficult for successful convictions since the prosecutors will have to prove on each case that the images are not real but rather virtual. Further to consider on this point is that is already made it difficult for the lower courts to comply with Ashcroft requirements and we have seen that they even make their own policies in order to meet the requirements. A further issue with the US approach is that they have been cases that the police were unable to prosecute child pornography offender because the suspects in question where only found in possession of drawings and cartoons and as a result of not criminalisation of pseudo-photographs the police had to return the images back to the offender. This creates further issues since the images remain in public and still distributed.  Also to consider in the US approach is the fact that is great increase in websites featuring animated images of child sexual abuse and this gap will increase as some jurisdictions can act as haven for this kind of websites. Further to consider is the possession and distribution of such images can grow inappropriate perceptions for the children and give a message that sexual abuse is somehow accepted. Also in the case of the US approach victims that already lived the sexual abuse and their exposed to such pictures it will make them relive the hell that they already passed. Further to consider here is the fear to the parents that such approach will bring meaning that parents will live in fear that their children may become victims of sexual abuse based on the material they see.  Another issue to consider with the US approach is the Morals. Morals preferences as we have saw change over times. There are also several examples of sexual moralities that have changed dramatically over the last years.  One example to consider is homosexuality, where before some jurisdictions even had hang penalties and now they can even allow marriage. Therefore taking this into account the fear that child abuse may end up be acceptable by society is there.  Further to consider here is that since the ruling of Ashcroft several years has passed and as said by the US courts virtual pornography will substitute actual child pornography that certainly was not achieved since the market is still full of child pornography and except that we even have the virtual images also now.   Also under the US approach when it comes to prosecuting offenders they will find it very hard and even impossible since anyone can use the defence that the images in question are just virtual images even if they know there not. So that leads us to what will happen in cases where the child molester claims that he thought the images where just virtual child pornography? Under the US law it will probably even evade prosecution.  With this said it is clear that the US approach has completely misjudged the decision in Ashcroft and as result create a safe harbor to molesters but also to distributors allowing them to benefit from this decision. But the worst part is that due to the way internet operates this decision has affected the whole world since American can consider a link haven for this kind of websites and therefore can fill the internet with their virtual content. Therefore even if in many jurisdictions have prohibited the distribution of such content and even if international treaties are trying to prohibit also, as long as the US provides protection to such content we are all unprotected.  Finally taking into account the court position on the very broad interpretation and that they would have probably ban some movies also like “Romeo and Juliet” or “Trafficking” how can this apply and not banned yet from other countries that are prohibiting virtual pornography.  This is certainly not the case here.  Even if their many argues in respect to freedom of expression and that people should not be convicted on their fantasies and that freedom of speech is all about imaginary and creativity the effects none wont to experiment this on their children and certainly none will wait to see the effects that this may have on their children.

In conclusion it can be said that freedom of expression is a fundamental right and should be protected by all means. However the US approach is certainly not the way to tackle virtual child pornography the courts should looks for new approach that will not just give free speech the power to overturn the interests of a child but rather use an approach that will balance the First Amendment rights and use an approach with the children safety and efficient in mind. Also the courts must recognize the prevention of indirect harm as in the Ferber case. Furthermore the courts and citizens that support the US approach on freedom of speech must realize that no man is an island[35] and that a part must be sacrificed for the better good of the whole. And finally it can be said that the ruling in Ashcroft has not yet proven to have any benefiting effects to the society as they said in their ruling but it rather filled the market with virtual child pornographic that makes it harder for countries like the UK to prosecute distributors that are based in the US.

 

 

 

 

 

 

 

 

 

 

Bibliography:

  • Akdeniz  Y.“Internet child pornography and the law: national and international responses” (2008)
  • Clough J. “Principles of Cybercrime” (2010)
  • Jenkins P.“Beyond Tolerance: Child pornography on the internet” (2001)
  • Ost S. “Child pornography and Sexual Grooming” (2009)
  • Sheldon K. “Sex Offenders and the Internet” 2007
  • Liu S. “Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence”
  • Akdeniz Y. “Governing pornography & Child Pornography on the Internet: The UK Approach available at http://www.cyber-rights.org/documents/us_article.pdf
    • Mateo G. “The New Face of Child Pornography: Digital Imaging Technology and the Law” available at http://www.jltp.uiuc.edu/archives/Mateo.pdf
    • Akdeniz Y. “Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach available at http://www.cyber-rights.org/reports/governan.htm
    • Cochran L. “Punishment For Virtual Child Pornography…Its Just a Fantasy” October 2009 available at http://works.bepress.com/allison_cochran/1/
    • Suresh, K “Is Computer-Generated Child Pornogrpahy a Victimless Crime? August 2008 available at http://metropolitanjury.lawyersclubindia.com/articles/IS-COMPUTER-GENERATED-CHILD-PORNOGRAPHY-A-VICTIMLESS-CRIME–273.asp
    • “Internet Child Pornography and the law” available  http://www.lawyersclubindia.com/articles/IS-COMPUTER-GENERATED-CHILD-PORNOGRAPHY-A-VICTIMLESS-CRIME–273.asp
    • Enemen M., Gillespie A., Stahl B. “Criminalizing Fantasies: The Regulation of Virtual Child pornography” available at http://www.ecis2009.it/papers/ecis2009-0536.pdf

 

  • Donne J., Meditation XVII, in Devotions upon emergent occasions (1624) available at http://www.luminarium.org/sevenlit/donne/meditation17.php
  • “Virtually no difference”  June 7th, 2002 available at http://www.harrypotterrealm.com/mn_editorials_virtual.html
  • Coroners and Justice Act 2009 available at http://www.iwf.org.uk/hotline/the-laws/non-photographic-child-sexual-abuse-images/coroners-and-justice-act-2009

 

Caselaw:

 

  • Miller v. California, 413 U.S. 15 (1973)
  • New York v. Ferber, 458 U.S. 771, 773 (1982).
  • Osborne v. Ohio, 495 U.S. 103, 111 (1990).
  • Osborne v. Ohio, 495 U.S. 103, 111 (1990).
  • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
  • United States v. Farrelly, 389 F.3d 649, 655 (6th Cir. 2004).

 


[1] Y. Akdeniz “Internet child pornography and the law: national and international responses” (2008) p.9

[2] Miller v. California, 413 U.S. 15 (1973)

[3] New York v. Ferber, 458 U.S. 771, 773 (1982).

[4] Ibid 758

[5] New York v. Ferber, 458 U.S. 747, 759 (1982).

[6] Ibid at 763.

[7] Osborne v. Ohio, 495 U.S. 103, 111 (1990).

[8] New York v. Ferber, 458 U.S. 758

[9] S. REP. NO. 104-358, at 4 (1996).

[10] 18 U.S.C. § 2256(8) (2006)

[11]S. Liu “Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence”

[12] Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

[13] Ibid  239-40

[14] Ibid at 240

[15] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002).

[16] S. Liu “Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence” p34

[17] Osborne v. Ohio, 495 U.S. 103, 111 (1990).

[18] Ashcroft, 535, U.S. at 251.

[19] Miller v. California, 413 U.S. 15, 24-25 (1973)

[20] United States v. Farrelly, 389 F.3d 649, 655 (6th Cir. 2004).

[21] S. Liu “Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence” p40

[22] S. Liu “Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence” p40

[23] Sunday Times, 19 June 1977

[24] Section 7(6) Protection of Children Act 1978

[25] Coroners and Justice Act 2009 available at http://www.iwf.org.uk/hotline/the-laws/non-photographic-child-sexual-abuse-images/coroners-and-justice-act-2009

[26] Y. Akdeniz “Governing pornography & Child Pornography on the Internet: The UK Approach available at http://www.cyber-rights.org/documents/us_article.pdf

[27] William committee report (1979) Obscenity and Film Censorship p90 para 6.68

[28]Y. Akdeniz “Internet child pornography and the law: national and international responses”(2008) p23

[29] K. Sheldon “Sex Offenders and the Internet” 2007 p79

[30] Ibid

[31] “Internet Child Pornography and the law” available at http://www.ashgate.com/pdf/SamplePages/Internet_Child_Pornography_and_the_Law_Intro.pdf

[32] M. Enemen, A. Gillespie, B. Stahl“Criminalizing Fantasies: The Regulation of Virtual Child pornography” available at http://www.ecis2009.it/papers/ecis2009-0536.pdfp8

[33]“Virtually no difference” http://www.harrypotterrealm.com/mn_editorials_virtual.html June 7th, 2002

[34] M. Enemen, A. Gillespie, B. Stahl“Criminalizing Fantasies: The Regulation of Virtual Child pornography” available at http://www.ecis2009.it/papers/ecis2009-0536.pdf p8

[35] J. Donne, Meditation XVII, in Devotions upon emergent occasions (1624) available at http://www.luminarium.org/sevenlit/donne/meditation17.php

 

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