The term child pornography (sometimes referred to as kiddie porn) generally refers to pornography featuring a child, however the precise definition of "pornography" and "child" varies by region and country. It is widely prohibited by law, and faces the disapproval of most members of society.
Definitions
The definition of "child pornography" differs in various countries. Most prohibit depictions of sexual activities involving children of a specified age. Some go further and prohibit all depictions of nudity of minors, regardless of whether the minor is depicted in a erotic pose or engaging in a sex act. In other countries, naturist magazines with depictions of nude underage persons do not fall under the definition of child pornography, and are easily available. Some countries also prohibit written works that explicitly describe sexual activities of minors. Simulated child pornography such as paintings, drawings, or computer-generated images, has recently been included in some countries' definition of child porn. (See "Simulated child pornography" below.) The actual age in which a person may legally participate in pornography varies from country to country, with some countries setting different age requirements for hardcore vs. softcore pornography. In most countries materials dealing with underage sex are usually exempt from prosecution when they are judged to 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.
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. United States vs. Knox.
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.
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 is 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.
Germany
In Germany the definition for child pornography does not differ from that of conventional pornography. Sound and text can also be considered pornography.
Canada
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 included. A written text that advocates or counsels sex with a child is also included, although parts of that law have been successfully contested in court. The Supreme Court has ruled that exceptions can be made for material judged to have "artistic merit".
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, the United Kingdom and The Netherlands, outlaw mere possession. Others, such as Russia, have no special legislation regarding child pornography. There, production of child pornography is usually prosecuted as child abuse. Illegal distribution of pornography is prohibited, but there is no law governing distribution of pornography and child porn is not singled out. 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 in the United States the Kildee-Murphy proposal prohibiting child pornography was made law. It is argued that it was based on unsubstantiated evidence, exaggerating the number of children involved in child pornography by as much as three orders of magnitude [1]. 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.
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.
Production
The production of child pornography may involve child sexual abuse. However, 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 of child pornography. Posession of child porn is frequently used to provide additional charges against people accused of other sexual crimes.
Distribution
The distribution of child pornography increases its availability. Prohibition of distribution can serve to protect the subjects of the material, who cannot give informed consent, and can suffer additional trauma from the knowledge that these images are being distributed.
Commercial trade in child porn by the producers motivates them to produce further pornography, while commercial trade in materials obtaned from other sources may indirectly stimulate the existence of the child porn market. 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.
Possession
It has been suggested that the consumption of child pornography causes pedophilia and lowers the threshold of a person's willingness to engage in sex with a child, and in the case of the additional crime of showing the images to a child, persuade the child into engaging in sexual activity with an adult. This argument also supports banning simulated 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. Experience with the liberalization of conventional porn in many countries indicates that the availability of porn reduces the number of sex crimes. In Japan, where art (not photographs) involving minors in sexual situations (called lolicon and shota-con) is legal, the instances of child sexual abuse are extremely low; however, Japan's crime rates are low in general, so this may not be correlative.
Age of consent
In many countries, including the US, 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 is still 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. 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 himself or herself 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 it is legal for a 16 or 17 year old to possess sexual images of themselves; it is also legal for their sexual partner (who may be over 18) to possess such images, although it is illegal for the sexual partner to distribute them to any other person. The sexual partner must be a husband/wife, or a cohabitating partner "in an enduring family relationship". (Source: paragraphs 72-92, Explanatory Notes to Sexual Offences Act 2003).
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.
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 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 being shown to a child. Also, the legality of simulated child pornography would make the prosecution of true child pornography much harder. Opponents of the prohibition claim that simulated child pornography does not harm children and should therefore fall under the First Amendment guarantee of freedom of the press.
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. In October 2002, the Netherlands declared that seemingly real child pornography will be treated as if it were real. In Germany real depictions and realistic simulations were never treated differently by law. Canadian law seems to prohibit simulated images as an "other visual representation", but this has not been tested in the courts.
Written
In some countries textual material describing sexual activities involving children is legally classified as child pornography. In other countries, most significantly the United States, it is legal; indeed, 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.
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 publically oppose child pornography.
The majority of internationally available hardcore child pornography is produced in developing countries in the former Soviet Union, South-East Asia, and Central America. Germany was one of the main sources of naturist child erotica in the past. Japan was and still remains one of the leading producers of softcore 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.
Commercial production and distribution
By most accounts there appears to be little current commercially-produced child pornography. Most of what exists originates from private production as well as commercial production in the 1960s and 1970s. Investigations into commercial production and distribution of child pornography have turned up only isolated examples. The loss of anonymity by making payment, combined with the availability of free material, inhibits demand for commercial material, and the legal liability of receiving documented payment is a disincentive for supplying it. Media reports about child pornography rings almost exclusively refer to private, non-commercial exchange, but give the impression of a widespread criminal organization trading in child pornography.
While up to the 1980s a limited quantity of child pornography was still sold under-the-counter, 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 nations.
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 featuting 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 it may push the boundries. Critics view the material on these sites as immoral even it's technically legal. (see Pret art).
Demand
Available studies show that the majority of viewers appear to be male adolescents, and many of them are minor adolescents themselves.
According to Japanese publishers, among the mainstream audience for pornography, child pornography (legal softcore materials or simulated hardcore) is often much more popular and more commercially successful than other, more accepted varieties of porn.
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 Great Britain. Until recently, it was legal for females as young as 16 to pose topless for mainstream newspapers (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, even if they are de jure child pornography.
Social perception
There is stigma associated with child pornography and most people don't want to be perceived as defending it. This sometimes leads to overreaction, with legal forms of expression being attacked on the grounds that they may be child porn. Although the number of such incidents is small, they arguably have 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." ([2], 14850 magazine , March 1994).
A US 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. [3] 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. [4].
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". [5]
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. [6]
See also
External links
Laws
Law enforcement organizations
Other investigating organizations
Discussions
- "The Trade in Child Pornography" by Jan Schuijer and Benjamin Rossen , Institute for Psychological Therapies Journal, volume 4, 1992. Discusses what it considers to be hysteria regarding the amount and nature of child pornography.
- "The Claptrap Over Child Porn" by Jim Peron , The Laissez Faire Electronic Times :
