Prohibited images of children

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A prohibited image of a child is a virtual visual representation of a minor which is illegal under the United Kingdom Coroners and Justice Act 2009.

Definition of "prohibited"

According to the relevant statute, an image is "prohibited" if it is "pornographic, and grossly offensive, disgusting or otherwise of an obscene character, and depicts any of the following scenes -

  • the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
  • an act of masturbation by, of, involving or in the presence of a child;
  • an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
  • an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
  • the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
  • the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.[1]

Under the Coroners and Justice Act, an image is "pornographic" if "it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal".[2]

The meaning of "obscene character", which was introduced by the Criminal Justice and Immigration Act 2008, has not yet been defined by the courts. The legal meaning of "grossly offensive" and "disgusting" is also unclear. If a defendant argues that an image is not "grossly offensive, disgusting or otherwise of an obscene character", a jury may be asked to apply its own "understanding" of obscenity, disgust and gross offence, presumably under the guidance of a Judge.

Definition of "image"

Under the statute, an "image" is -

"(a) a moving or still image (produced by any means), or
(b) data (stored by any means) which is capable of conversion into an image within paragraph (a)".[3]

An "image" is not an indecent photograph or pseudo-photograph[4], or any image derived from an indecent photograph or pseudo-photograph.

Definition of "child"

Under that statute, a child is a person (real or imaginary) who appears to be under the age of 18. According to the legislation, "an image is to be treated as an image of a child if -

(a) the impression conveyed by the image is that the person shown is a child, or
(b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child."[5]

Background

As a result of lobbying by several "children's charities", the Home Office in the UK announced plans to criminalise virtual images of "child abuse", claiming that “fantasy images themselves fuel abuse of real children by reinforcing potential abusers’ inappropriate feelings towards children”[6]. The Home Office noted “an absence of research into the effects of these images”, but proceeded to ask if their proposal was “nevertheless justified”. In 2008, a research paper accompanying the Coroners and Justice Bill cited a 40 year old report by the Longford Committee and an appendix in a 20 year old book on photographic child pornography, purportedly as evidence[7], although neither source supported the argument that the viewing of virtual child pornography could incite the commission of contact offences[8]. Evidence in fact suggests that child erotica has a positive effect on the behaviour of people with a sexual interest in children, providing a sexual relief which reduces the likelihood of contact offending.

In response to the Scottish consultation on the proposed criminalisation of virtual "child pornography", a coalition of children's charities claimed that “advances in technology have made it possible to create materials which are entirely artificial but which, in turn, are indistinguishable from photographs or videos of real events”[9]. This argument (which was later disseminated by Justice Minister Maria Eagle) was in fact misleading, as indecent photo-realistic images of children were already illegal under UK law and possession of such images carries the same maximum sentence as actual photographs.[10]

In a criticism of the proposal to criminalise virtual images of children, Brian Ribbon writes:

"Another argument proposed by the NSPCC and by other proponents of the legislation is that the availability of cartoon child erotica implies tolerance of child sexual abuse, therefore encouraging paedophiles to act out. The first problem with this argument is that the broad definition of “prohibited images” in the Coroners and Justice Bill includes images which simply focus on certain areas of a child’s body and are perceived to be “grossly offensive” or “disgusting”, even if no sexual activity is depicted. Furthermore, the claim that the availability of cartoon child erotica - even if it depicts sexual abuse - implies a tolerance of child abuse is unfounded and grossly illogical. Firstly, a glance at (legal) discussion boards for paedophiles - such as Annabelleigh.net - indicates that paedophiles are extremely aware of the negativity of attitudes towards paedophilia per se as well as child sexual abuse. Contrary to the argument of the proponents of the proposed legislation, the fact that child erotica is only legal in cartoon form clearly suggests that society is so opposed to any indication of child abuse that it prohibits material which depicts real children in a potentially sexual manner. By criminalising mere cartoons, the government risks providing additional justification for the (justifiable) belief that much of the crusade against paedophiles is a matter of prudism or playing on people’s fears, rather than an attempt to protect children. The prevalence of this belief is clearly problematic for a government whose policies rely heavily on a veiled politics of fear, using the “think of the children” mantra as an excuse for abuses of state power. By providing additional evidence for the belief, the government also challenges any message of the kind which the NSPCC were referring to, as it characterises pornography laws as an attempt to legislate morality rather than a disapproval of child abuse."[11]

Many charities also claimed that contact offenders could use virtual child pornography to groom children[12], however anybody doing such would be committing the offence of attempting sexual activity with a child and arranging commission of a child sex offence[13].

Statutory defences

"(1) Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—

(a) that the person had a legitimate reason for being in possession of the image concerned;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;
(c) that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time."[14]

References

  1. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g62
  2. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g62
  3. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g65
  4. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g65
  5. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g65
  6. http://www.homeoffice.gov.uk/documents/cons-2007-depiction-sex-abuse?view=Binary
  7. http://www.parliament.uk/commons/lib/research/rp2009/rp09-006.pdf
  8. http://www.attractedtochildren.org/2009/the-perverse-politics-of-virtual-child-porn-law
  9. http://www.scotland.gov.uk/Topics/Justice/crimes/pornography/childsexualabuse/ConsResp/cross-borderchis
  10. http://www.statutelaw.gov.uk/content.aspx?parentActiveTextDocId=1502057&ActiveTextDocId=1502059
  11. http://www.attractedtochildren.org/2009/the-perverse-politics-of-virtual-child-porn-law
  12. http://www.theregister.co.uk/2007/04/02/reid_wants_child_law/
  13. http://www.statutelaw.gov.uk/content.aspx?parentActiveTextDocId=820904&ActiveTextDocId=820906
  14. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g64

See also

External links