The downloading and possession of child pornography should not be a criminal offence
Debate Rounds (3)
I understand that this is a highly emotive topic and I just want to start off by saying that I find child abuse completely abhorrent Nothing about my argument is in defence of child abuse and this debate is not an attempt to normalise the sexual abuse and exploitation of children, either in the case of contact offences or in the re-victimisation of children as a consequence of the circulation of child abuse images.
My intention in starting this debate is to examine the misconceptions that people have about possession and making of indecent images, and to argue that it is a victimless act and so therefore should not be an offence.
My argument is based on the assertion that no harm is caused as a consequence of the actions mentioned below, and a belief that an act should only be prohibited by law if engaging in said act results in harm, loss, or injury to a person, in according with common law principles. I do not believe it is right to create offences just to target an unsavoury population (people who are sexually attracted to children).
For this debate I am going to refer to Section 1(1) of the Protection of Children Act 1978 which relates to photographs involving children, and Section 62(1)(2)(3)(6)(7) of the Coroners and Justice Act 2009 which relates to artificial depictions of children.
Section 1 of the Protection of Children Act 1978 states that,
1. It is an offence for a person—
(a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or
(b) to distribute or show such indecent photographs or pseudo-photographs; or
(c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.
Section 62 Coroners and Justice Act 2009 states that,
1. It is an offence for a person to be in possession of a prohibited images of a child.
2. A prohibited images is an image which—
(a) is pornographic,
(b) falls within subsection (6), and
(c) is grossly offensive, disgusting or otherwise of an obscene character.
3. 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.
6. An image falls within this subsection if it—
(a) is an image which focuses solely or principally on a child's genitals or anal region, or
(b) portrays any of the acts mentioned in subsection (7).
7. Those acts are—
(a) the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
(b) an act of masturbation by, of, involving or in the presence of a child;
(c) 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;
(d) an act of penetration, in the presence of a child, or the vagina or anus of a person with a part of a person's body or with anything else;
(e) the performance by a child or an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
(f) 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.
In relation to the offence caused by Section 62(1) of the Coroners and Justice Act 2009 I will simply say that no harm is caused in the creation, distribution, promotion, or possession of the images as no real children are involved at any point and so there are no victims.
For the alleviation of doubt, I would like to emphasise at this point that the conduct I am specifically referring to in the Protection of Children Act 1978 is the possession and making of indecent images of children. The scope of my assertion DOES NOT include the act of taking, distributing, or publishing promotion of indecent images.
N.B. 'Making' as it appears in the act refers to the process of images being created by copying (such as downloading on a computer or photocopying a printed images).
I do not mean to suggest that harm is not caused in the production or distribution of indecent images of children, but I do not believe that this harm is exacerbated by download / copying and possession.
To make this point I will go through the process from production to possession.
For the creation (or 'taking') of indecent images, a child is either sexually abused by a pornographer by being forced to engage in a sexual act or exploited by the pornographer by being forced to pose nude or in a sexual manner. Either way, this is child abuse.
The pornographer is then committing the offence of distributing these images if they are ever shared with another person. In cases where images are shared on a peer to peer computer network, each image is distributed each time another person initiates a download and copies the image from the pornographers computer.
If, as a consequence of participating in a peer to peer network, a person who has previously downloaded (made) an image from another person allows for images to be copied from their computer, then they are also guilty of distributing these images as soon as somebody downloads the image from their computer.
In the case of a person who downloads an image from a peer on the network, but who does not allow sharing of images from their computer, they are guilty of making and possession, but cannot be said to be guilty of distributing.
I believe that harm is caused in the production of indecent images of children as child abuse has to have been committed for the images to exist.
I believe that harm is also caused in the distribution of these images as a person who allows an image to be shared is making it more likely that a victim will be re-victimised in the future by learning or being reminded that images of their abuse still exist.
Although distribution of these images in and of itself does not directly result in the victim becoming re-victimised (as they are not automatically aware each time an image of them is shared), it does contribute to the likelihood of them becoming aware of these images' existence through notification by the police each time images of them are found in investigating a crime (as with the Child Pornography Victim Assistance Program in America [http://www.fbi.gov...]) or, if, in the event of lawful possession, the wider availability of images results in the victim being recognised and approached about their abuse.
I acknowledge that for a victim, the reality of being reminded that images of their abuse are in existence will make it hard for them to overcome their abuse and move on with their lives.
It can be said that a person who distributes an image is culpable for the harm caused in re-victimisation, but I do not see how a person who makes and possesses an image, without being guilty of distribution, can be said to be culpable for this harm.
In justifying the continued classification of the making and possession of indecent images as an offence, I have heard it be said that possession makes it possible for distribution to occur in the future, for the images to be used to groom children, or that the use of such images in masturbation makes it more likely for a person will progress onto a contact offence.
As these consequences demand a level of intent in the mind of the person making or possessing the images, I believe that it would not be justified maintaining this prohibition solely for the reason of preventing these outcomes as it cannot be assumed that every person who makes or posseses indecent images has this intent. In relation to the belief that use of images in masturbation makes a person more likely to commit contact offences, the reverse has been found to be true [http://goo.gl...].
If challenged in this debate I will go into more depth about the state of research and the damaging consequences of not decriminalising these acts.
As it has been pointed out to me that you cannot edit your post, and it is unlikely that you will be removed from this debate by moderators, I guess I should continue, and hope that you debate with me based on the merits of my argument.
Even though the points you make do not refute mine, I will respond to what you have said.
To start, I can only deduce that by "no child should be put through something of that circumstance", that you are referring to sexual abuse, or the re-victimisation caused as a consequence of the distribution child abuse images. For the reasons mentioned previously, I do not believe that the act of copying or being in possession of indecent images contributes to this suffering, so I do not believe your statement is relevant for the purpose of this debate.
I find it peculiar that you make a point of referring to parental consent, as if to suggest that there could be a defence. A child, no matter their age, should have complete autonomy over their own body.
You go on to suggest that children are not capable of comprehending the notion of sex. This is an incredibly broad statement, and, even though it is not directly relevant to this debate, I will still attempt to address it.
A child, in the context of this debate, is a person under the age of eighteen. As the average age of consent around the world, being the age at which governments deem a person capable of understanding the concept of sex, is just sixteen, I believe I can deduce that you mean to suggest that 'young children' cannot comprehend the notion of sex.
Understanding the age of consent, or the age at which the state deems a person should not be photographed in a sexual context, does not go far in helping us to understand the capacity of children to comprehend sex. The ages that are set for prohibitions of sex and pornography are considered within not only the context of a child's capacity to process sex, but also in consideration of religious and cultural sensibilities.
I will try to briefly explain what the study of child development has taught us about children's capacity to process sex.
The body of scientific literature which has considered the specific issue of when a child develops the capacity to understand the emotional and physiological aspects of sexuality and arousal, identifies this as a pubertal process which typically starts at about the age of six, which becomes stable by the age of ten.
A 2000 paper called 'The Magical Age of 10' in the peer reviewed journal 'Archives of Sexual Behaviour' describes the significance of a developmental process known as adrenal puberty.
To quote the introduction of the paper:
A major stream of research now posits two sequential but distinct forms of
The full paper can be found here: http://www.scribd.com...
So, in response to your assertion that children cannot comprehend the thought of sex, I would suggest that your belief is influenced primarily on cultural mores rather than any statement of fact.
This point is, however, far departed from the issues under debate. The research mentioned above might be better placed in a debate about age of consent reform, but, is not relevant here.
Lastly, you express that you do not understand why a grown man would be sexually interested in a young child. While this is a valid expression, it does not add any point for debate.
At the end of my earlier post I refer to the damaging consequences of not decriminalising these acts.
A 2010 paper called 'Pornography and Sex Crimes in the Czech Republic', also from the 'Archives of Sexual Behaviour' journal, highlights a trend, which has been previous seen in studies conducted in Denmark and Japan, that the decriminalisation of child pornography in these cultures, resulted in a markably significant reduction in sex crimes against children.
The abstract of the paper can be found here: http://link.springer.com...
The authors of the paper hypothesise that potential sexual offenders use child pornography as a substitute for sex crimes against children.
Given the victimless nature of making and possession of indecent images, and the fact that potential sex offenders seem to resort to images if given a choice, I would suggest that any reasonable person who is concerned with the welfare of future potential victims of sexual abuse, would advocate for reform of the law.
Unfortunately, to replicate the level of reduction in sexual offences against children seen in Denmark, Japan and the Czech Republic, it might be necessary to also decriminalise distribution, as, this might be necessary for the level of access to child pornography needed for it to available as a viable substitute. This, of course, would bring the very real harm caused by re-victimisation in conflict with the potential for mitigating further harm to potential future victims. I, for one, do not think this is a judgement that the state has the right to make. I think that the criminalisation of distribution is perfectly reasonable and that ignoring the harm of re-victimisation in favour of mitigating future harm, would be sending the wrong message out to victims.
This is why I feel so strongly about decriminalising making and possession, as harm is not caused, and, it would likely yield the desired consequences in reducing instances of sexual abuse against children.
Alternatively, the authors of the study has recommended, at the very least, the decriminalisation of prohibited images of children, as prohibited by Section 1 of the Section 62 Coroners and Justice Act 2009.
I would agree with this recommendation and would consider anybody who, knowing the facts in this debate, still denounced this reform, to be guilty of putting the welfare of children at risk, to appease their own feelings of disgust against sexual offenders.
Further to the harm in not decriminalising making and possession, it is also worth considering that in American there have been notable cases of children being convicted for child porn crimes after experimenting with same age peers. The prohibition imposed on young children from being able to explore their sexuality with age appropriate peers is likely to result in negative consequences for the development of a child's sense of self and their more general self esteem. This would be particularly true for children who develop minority sexual interests, such as for members of their own sex.
I hope that you can engage in this debate on the points I have made.
I look forward to reading your response.
DONTjazzME forfeited this round.
In this last round I would like to consider an emotive and well written case which opposes my opinion in this debate.
For this I would like to refer to a recent article published in a January 2013 edition of the New York Times Magazine.
The front page article titled 'The Price of a Stolen Childhood' presents a sobering account of the very real harm caused by child abuse and as a consequence of a victim learning that images of their abuse are circulating around the web.
The article can be found here http://goo.gl... (please read before continuing)
The author talks about Amy and Nicole, two victims of child abuse, and how they are going about fighting for financial restitution, from people who are found guilty of possessing images of their abuse, through joint and several liability.
Page five of the article explains that join and several liability is:
"... often used in pollution cases: when several companies dump toxic waste in a lake over time, a plaintiff can go after the company with the deepest pockets, and a judge can hold that single company responsible for the entire cost of the cleanup — with the understanding that it’s up to that polluter to sue the others to pay their share".
In this context, the possessor of child abuse images would be sued for the full extent of the damages which result from the harm caused to the victim from learning that images of their abuse are being distributed and shared. It would then be up to the defendant to sue other parties jointly liable for that harm.
Although, as mentioned before, the Crime Victim's Rights Act states that a victim has "The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime ...", the provisions for this by the FBI's Child Pornography Victims Assistance Program make continued notification optional. This creates the rather unfortunate circumstance whereby a defendant can make a legal claim for liability for the harm caused by notification, against the parents of the victim if they decide to tell the victim that images are being distributed, or against the victim themselves by opting in to future notification.
As the circumstances of notification described at the start of the article are for the purpose of identifying Nicole as the victim, rather than determining the age of the victim for the purposes a prosecution, the authorities could also be said to be liable for the harm caused from the notification.
The article does not directly touch on the issue of whether possession should or should not be an offence, but comments in the discussion section of the article, made by a public defender, do emphasise the problem of passive consumers of indecent images being considered liable for the harm caused to the victim.
As this debate concerns the necessity for an act to proximately cause harm for a prohibition to be justified, the point made by the public defender below, in relation to the proximate cause principle in civil remedies, is relevant for the purpose of this debate.
In response to the article, a commenter who identifies himself as somebody who defends downloaders writes:
"... These indigent men are ... sentenced to ten years or so of prison time only to have trial lawyers seek millions of dollars from them. They will emerge unemployable with this non-dischargeable debt, paying for conduct that the court admitted they did not do (that's the very nature of joint and several liability -- you pay for the crimes of others). Numerous circuit courts of appeals have determined that this makes no sense and is potentially unconstitutional, but the author chose to focus on the one court in Texas that did not..."
In response, a commenter named Lynn writes:
"Therapy costs money. Medication for anxiety, night terrors, depression costs money. Traveling to and from court to testify costs money. Who should pay those costs if not the person who inflicted the damage?"
"Lynn, I agree that the people who harm these children should be held responsible. If you sue someone, you normally have to show that a person "proximately caused" harm to another person. Some courts have allowed restitution despite these lawyers' failure to show proximate cause. It's very hard to show how an anonymous internet downloader has proximately caused a child any actual harm. This is because there is no marginal impact: if the downloader did not exist, would these children be LESS harmed? No, the sad truth is that they've already suffered the harm, and the downloader does not really add to that...".
The full comment thread can be found here http://goo.gl...
In UK law the test for legal causation requires that a defendant's act is both factually responsible for the outcome, and that it is a substantial and operative factor at the time.
As harm would not have come to the victim in these circumstances had the parent not told the victim, the victim not opted to receive notifications, or the authorities not made enquiries with the victim in relation to their investigation, it cannot be said, in accordance with the principles of legal liability, that a person who downloads indecent images can be legally responsible for the harm caused.
A series of three short videos explaining these principles can be found here http://goo.gl...
Lastly I would like to suggest that the principle being applied when it is claimed that harm is caused to a victim, as a consequence of images of their abuse being downloaded, is not being applied in similar cases, and so is more reflective of societies attitudes towards offences against children than it is about any actual harm being caused.
To illustrate this I will refer to the unfortunate suicide of teenager Jessica Logan, which followed the circulation of a nude photograph and a campaign of harassment from fellow students.
The story can be found here http://goo.gl...
In this case the parents of the victim took legal action against various parties for their involvement in the circumstances which resulted in their daughters suicide.
This action amounted to a claim of negligence by the school and resident police officer and a claim for compensation against the victim's ex boyfriend and his friends for circulating the nude photograph around two high schools within the district.
The suit does not attempt to claim restitution from every person who possessed the image, unlike the restitution claim in the case of Amy and Nicole, even though the victim's knowledge that the images was being seen by many people would have contributed to her suffering.
In Jessica's case the responsibility for her suffering as a consequence of the image of her being circulated can be said to lie with those who distributed the image. This can be said to be true for indecent images of children. For the reasons outlined in this debate, I respectfully submit one last time that the responsibility for this suffering cannot lie with people whose offence is possession or making, without distribution.
My final comment will be a quote from an article about justice. It is with this that I would remind anybody reading this debate that criminal law is not singularly about revenge or punishment, but is about the restoration of justice.
"True justice cannot be administered by people who enjoy punishing. Neither can it be administered by those who seek to rule you. It cannot be administered by judges appointed by their rulers to do their bidding and to defend their decrees. It can only be administered by people who have it in their highest interest to provide the best service possible, to establish a win-win relationship and to make the best possible outcome even from the worst situation - people who do not spend their schooling memorizing arbitrary laws, but rather studying philosophy and the science of being human and thinking for themselves about it as they strive to beat the competition in the business of bringing harmony to the world."
DONTjazzME forfeited this round.
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