Child pornography
Child pornography is any visual depiction involving the use of a minor engaging in sexually explicit conduct.[1] Some western countries, such as the U.S., have made child pornography offenses felonies, while others have no laws against child pornography, or treat them as misdemeanors (for example, Japan, which did not ban child porn possession until 2014).[2]
While much of child porn may be from an adult filming a child, children themselves produce child porn. According to ECPAT, "Children and young people take photos and videos themselves either voluntarily or as a result of bullying or manipulation by a sexual predator, often channeled through a webcam."[3]
History
In 1977, extensive press coverage claimed there had been an emergence of a nationwide, multimillion dollar child pornography market. The media convergence catalyzed state and federal legislative action. In 1978, Congress enacted the first federal child pornography legislation, the Protection of Children Against Sexual Exploitation Act. The drafters of that Act assumed that they were constrained by obscenity law standards in their approach to the problem of child pornography. The Act, therefore, did not exceed the bounds of existing obscenity standards as articulated by the Supreme Court in Miller v. California. It outlawed the use of children in the production of obscene materials. It also enhanced the penalties for transmission or receipt of obscene materials that contained depictions of children. Congress, however, rejected any measures that would have exceeded the scope of existing obscenity laws.
The New York Legislature enacted Article 263 of its Penal Law, banning the use of persons under age of 16 in sexual performances. This was the statute upheld in the landmark 1982 U.S. Supreme Court case New York v. Ferber, which held that child pornography need not be legally obscene in order to be outlawed. (Miller v. California had held that material is "obscene" if, taken as a whole and applying contemporary community standards, it lacks serious scientific, literary, artistic, or political value, is "patently offensive" and aimed at "prurient interests".)
In response to New York v. Ferber, the U.S. Congress passed the Child Protection Act of 1984, redefining child pornography by replacing the word "lewd" with "lascivious". "Lewd" had been associated with obscenity and Congress wanted to make it clear that an exhibition of the genitals or pubic area did not have to meet the obscenity standard to be unlawful. That Act also expanded the federal prohibition on child pornography to cover child pornography produced for motives other than profit. Three of the four bills that legislators considered in 1984 would have legalized child pornography with literary, scientific, artistic, or social value; these bills were rejected after Deputy Assistant Attorney General Mark M. Richard expressed concern on behalf of the Justice Department that such an affirmative defense would create an "appealing loophole" allowing child pornographers to frustrate the purpose of the statute by placing otherwise proscribed child pornography materials within a legitimate literary or scientific work.
In 1990, only nineteen states (Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Illinois, Kansas, Minnesota, Nebraska, Nevada, Ohio, Oklahoma, South Dakota, Texas, Utah, Washington, and West Virginia) had laws on their books criminalizing the possession of child pornography. That year, the U.S. Supreme Court ruled 6-3 in Osborne v. Ohio that it was permissible for states to outlaw the mere possession, as distinct from the distribution, of child pornography. In that case, the court stated for the first time that pictures could be banned if they had the potential to be used for nefarious purposes such as seducing new victims or convincing children to submit to sexual violation. (Justices Brennan, Marshall, and Stevens dissented, citing free speech concerns.)
In 2014, John Grisham remarked that child porn offenses are punished too harshly, and then quickly backpedaled.[4] Some academics,[5] judges,[6] and sentencing reform activists, though, agree that federal law has gone too far in sentencing child porn offenders harshly, since it is sometimes possible for possessing child porn to carry a much more severe penalty than actually raping a child. Families Against Mandatory Minimums cites the example of mandatory minimum sentencing of a "22 year-old man who makes a home video of consensual sex with his 17 year-old girlfriend and downloads it to his computer, with his girlfriend’s knowledge and with no intent to share the video with others (child pornography production)". In some cases, it would be legal under state law to have sex with a spouse who is over the age of consent but under 18, but it would be a felony under federal law for her or anyone else to possess photographs of the sex.
Can undercover cops legally distribute or produce it?
The Justice Department acknowledged in court filings that the FBI operated the site, known as Playpen, from Feb. 20 to March 4, 2015, which had 215,000 registered users and included links to more than 23,000 sexually explicit images and videos of children, including more than 9,000 files that users could download directly from the FBI. Some of the images described in court filings involved children barely old enough for kindergarten.
That approach is a significant departure from the government’s past tactics for battling online child porn, in which agents were instructed that they should not allow images of children being sexually assaulted to become public. The Justice Department has said that children depicted in such images are harmed each time they are viewed, and once those images leave the government’s control, agents have no way to prevent them from being copied and re-copied to other parts of the internet.
Officials acknowledged those risks, but said they had no other way to identify the people accessing the sites. “We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” said Ron Hosko, a former senior FBI official who was involved in planning one of the agency’s first efforts to take over a child porn site. “There was no other way we could identify as many players.” A lawyer for one of the men arrested after the FBI sting charged that “what the government did in this case is comparable to flooding a neighborhood with heroin in the hope of snatching an assortment of low-level drug users.”
More than 100,000 Playpen registered users visited the site while it was under the FBI’s control. The Justice Department said in court filings that agents had found “true” computer addresses for more than 1,300 of them, and has told defense lawyers that 137 have been charged with a crime, though it has so far declined to publicly identify those cases. The Justice Department said in court filings that agents did not post any child pornography to the site themselves. [7]
Definition
"Lascivious exhibition"
Most kinds of child pornography are fairly obvious, since there is sexual contact involved. What constitutes a "lascivious exhibition" is more open to interpretation. NYU Associate Professor Amy Adler argues, "Although the comparison is exaggerated, to say that lasciviousness inheres in pictures of children is a bit like saying that the meaning of a Rorschach test inheres in the blots."[8]
In the 1994 case of United States v. Knox, the Third Circuit held that a depiction could constitute a "lascivious exhibition of the genitals" even if a child is wearing clothes. The defendant, Knox, possessed videotapes that zoomed in on the genital areas of clothed girls. The Third Circuit approved Knox's conviction under federal law, deciding that the definition of "child pornography" did not require child nudity. The Third Circuit held its ground, even after the Supreme Court remanded the case to the Circuit for reconsideration in light of a brief by the Solicitor General of the United States in which he argued that the Circuit had gone too far, and that the statute required at least "discernibility" of the genitals if not outright nudity. The Knox case caused a political firestorm; it prompted front-page headlines, a resolution passed by Members of Congress condemning the Solicitor General's interpretation, and the unusual step of members of Congress filing a brief in the case.
Virtually all lower courts that have addressed the issue have embraced the widely followed so-called Dost test, originally developed by a California district court and affirmed in an opinion by the Ninth Circuit. The test identifies six factors that are relevant to the determination of whether a picture constitutes a "lascivious exhibition"; it includes such questions as "whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity" and "whether the visual depiction is intended or designed to elicit a sexual response in the viewer."
"Child abuse imagery"
There have been proposals to replace the term "child pornography" \with "child abuse imagery". Outside of Google's warnings that "Child abuse imagery is illegal" (which appear whenever you google the phrase "child pornography")[9] and a few academic articles and opinion columns, the phrase hasn't caught on, because the two concepts aren't identical, and because it's quicker to say "child porn" than "child abuse imagery".
There is some child porn that doesn't require child abuse to produce, an example being the type of images involved in the Knox case where the victims were never touched sexually and perhaps never found out their images had been used for illegal purposes. There is also some child abuse imagery that doesn't count as child porn. An example would be a video of a child getting sadistically beaten to death. Such images would be totally legal to possess and distribute.
Anime and manga
Christopher Handley was convicted of possessing child pornography in 2006 when customs officials seized a package for him that contained "lolicon" manga that showed what officials said were children being sexually abused.[10] Anime and manga often have sex scenes involving characters that look like barely pubescent youths, but these depictions are apparently legal as long as the packaging and storyline indicate that the characters are adults. On the other hand, a cartoon of two stick figures having sex, with a storyline indicating they are minors, could theoretically result in a child porn conviction.
In the United States, the question regarding whether certain anime and manga legally constitutes child pornography varies. According to Wikipedia
Currently, such depictions are in a legal grey area due to parts of the PROTECT Act being ruled unconstitutional on a federal level; however, laws regulating lolicon and shotacon differs between states; several states have laws that explicitly prohibit cartoon pornography and similar depictions (such as video games in the state of New Jersey), while others usually have only vague laws on such content; in some states, such as California, such depictions specifically do not fall under state child pornography laws, while the state of Utah explicitly bans it.
Reasons for illegality
There are several reasons cited for child pornography's illegality.
Online to offline "crossover"
Online to offline "crossover" is the extent to which the possession and viewing of child pornography, by a defendant with no prior history of sexual offense, has a causal connection to the likelihood of future contact offenses against children. A primary justification for strict sentencing in this area is the assertion, or at least the insinuation, that possession of child pornography will lead to actual child molestation. There is, however, some evidence, based on the experiences of Japan, the Czech Republic, and Denmark with legalized child porn, that availability of child pornography may lead to less child abuse.[11]
Also, sexual stimulus materials need not be pornographic. As Robert J. Danay notes, "In an effort to condemn all materials that might hold some special inciting effect upon alleged pedophiles, the judicial pedophilic gaze is extending to materials that are increasingly mundane. This trend is all the more distressing given the evidence of certain professed pedophiles who claim to prefer more innocent representations of children. For these people, it may be the very 'sexual naivete' of the depicted children that is arousing. For example, a recent survey involving members of the North American Man-Boy Love Association (NAMBLA), an organization for pedophiles, revealed that its members derived erotic stimulation through watching 'children on network television, the Disney channel, and mainstream films.' The author of the study poignantly concluded that he 'found NAMBLA"s "porn" and it was Hollywood.' If this is so, the judicial search for pedophilic material threatens to publicly sexualize all images of children no matter how innocuous the context."[12]
Child pornography's normalizing child abuse or inciting viewers to abuse children
A common argument is that child pornography will make people think that child abuse is okay, or incite viewers to abuse children. In Ashcroft v. Free Speech Coalition, which applied to virtual child pornography, the Supreme Court ruled that "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it".[13]
Child pornography's encouraging a societal perception of children as sexual objects
The Child Pornography Prevention Act of 1996 stated that "(A) the sexualization and eroticization of minors through any form of child pornographic images has a deleterious effect on all children by encouraging a societal perception of children as sexual objects and leading to further sexual abuse and exploitation of them; and (B) this sexualization of minors creates an unwholesome environment which affects the psychological, mental and emotional development of children and undermines the efforts of parents and families to encourage the sound mental, moral and emotional development of children".
Child pornography viewing as a violation against the child's dignity
Child pornography is usually viewed to violate the child's dignity, although in a concurring opinion in New York v. Ferber, Justices Brennan and Marshall wrote that child pornography distribution might not be as harmful to children, and could even be constitutionally protected speech, if the depiction were a serious contribution to art or science:
“”But in my view application of 263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly "slight social value," and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not "de minimis." See ante, at 761. At the same time, the State's interest in suppression of such materials is likely to be far less compelling. For the Court's assumption of harm to the child resulting from the "permanent record" and "circulation" of the child's "participation," ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the "low-profile, clandestine industry" that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed "material outside the protection of the First Amendment." |
Child pornography as a tool of seduction
Child pornography can be shown to children in an attempt to convince them that child sexual abuse is normal. In Ashcroft v. Free Speech Coalition, the Court ruled, "The contention that the [Child Pornography Prevention Act] is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."
Criminogenic risk of child pornography consumers
The logic goes, people who look at heterosexual porn probably have an interest in heterosexual sex; people who look at gay porn probably have an interest in gay sex; so people who look at child porn probably have an interest in abusing children. The Butner studies
Since 21% of college-aged males report "some sexual attraction to small children", it is sometimes argued that possession of child pornography may reflect a more "general interest in sexual variety" rather than a proclivity toward child molestation.[14] Professor Ost came to a similar conclusion in a meta-analysis in which she argued that "it is possible that individuals use child pornography for sexual stimulation, yet have no inclination to actually go out and commit child abuse."[15]
Although preferential child molestors sometimes have child pornography collections, a much broader segment of the population is interested in pornography featuring pubescent children in their teens. Some child pornography consumers don't have a sexual preference for children, but have seen the gamut of adult pornography and who are searching for more bizarre material.[16]
Child pornography distribution as a motive for child pornography production
Basically, this argument holds that people would not produce as much child porn if there weren't viewers out there eager to watch it. In New York v. Ferber, the U.S. Supreme Court ruled:
“”[T]he distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions. |
The overwhelming majority of child pornography seized in the United States has not been produced or distributed for profit; rather, it is produced or distributed free of charge.[16] However, this does not rule out the possibility that producers are motivated to create child pornography simply for the satisfaction of knowing that people are viewing it; it could be analogous to fan fiction, which many "authors" write just for the joy of having their "work" read by others.
Harm to victims of child abuse from the viewing of the resulting child pornography
Some victims of child abuse report that they experience psychological pain every time they hear about someone viewing the images. In the U.S. Supreme Court case Paroline v. United States, the majority wrote, "It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured. . . . Harms of this sort are a major reason why child pornography is outlawed."
On the other hand, if the images were so old that the victims had already died, or if the victims never knew that images had been created, then this argument would not apply to the situation.
Child pornography production as a motive for child abuse
It is generally believed that some children who would not have otherwise been abused, are abused for the sake of producing child pornography. Accordingly, since the production of written child pornography does not require abuse of children, it has not been banned. According to the PROTECT Act, passed by Congress in 2003, "Child pornography results from the abuse of real children by sex offenders; the production of child pornography is a byproduct of, and not the primary reason for, the sexual abuse of children. There is no evidence that the future development of easy and inexpensive means of computer generating realistic images of children would stop or even reduce the sexual abuse of real children or the practice of visually recording that abuse."
According to one study, "Rates of child sexual abuse have declined substantially since the mid-1990s, a time period that corresponds to the spread of CP online."[17]
References
- "Sexually explicit conduct" includes "actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex); bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. Sec. 2256
- http://www.cnn.com/2014/06/17/world/asia/japan-child-porn-law/
- http://www.ecpat.net/end-child-pornography
- http://www.cnn.com/2014/10/16/showbiz/celebrity-news-gossip/john-grisham-child-pornography/
- http://scholarship.law.duke.edu/lcp/vol76/iss1/3/
- http://thinkprogress.org/justice/2013/09/27/2692801/judges-battle-over-child-pornography-mandatory-minimum-sentence/
- "FBI ran website sharing thousands of child porn images" USAToday, Jan. 21, 2016
- http://jenkinland.com/links/legal/cp/Adler%20-%20The%20Perverse%20Law%20of%20Child%20Pornography%20-%20for%20Ipce.doc
- https://www.google.com/landing/protectchildren/
- http://io9.com/5272107/manga-collection-ruled-child-pornography-by-us-court
- http://www.forbes.com/sites/timworstall/2013/07/07/outrage-as-judge-tells-the-truth-about-child-pornography/
- Danay, Robert J. (2005). "Danger of Fighting Monsters: Addressing the Hidden Harms of Child Pornography Law, The". Rev. Const. Stud. 11 (151).
- https://www.law.cornell.edu/supct/html/00-795.ZS.html
- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457197
- Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat That the Possession of Child Pornography Poses to Society, 29 J.L. & Soc'y 436, 443-47 (2002).
- http://www.crime-research.org/articles/536/2
- Janis Wolak, David Finkelhor and Kimberly Mitchell (2011). "Child Pornography Possessors: Trends in Offender and Case Characteristics". Sexual Abuse: A Journal of Research and Treatment 23 (22).