16 January 2010

Child Pornography...

Are there any lines to be drawn in the sand as to what constitutes child pornography? It would seem that for some the definition is clear and for others the definition is less than clear. In fact, the definition can be interpreted in any old fashion that may be required for the purpose of an arrest and a subsequent prosecution.

For example, is the possession of photographs of a child in a swimming costume playing in a pool or riding in that same swimming costume in the back of a truck or sitting on a relative's lap a case of being in possession of child pornography? Would it make any difference if that child was a relative of the person in possession of that photograph. Perhaps even more personal, if I am in possession of a photograph of my son swimming naked in the pool, am I in possession of child pornography? Would it make any difference if I then placed that photograph on my blog or used it as a screen saver on my computer?

These are important questions for many reasons. Personally, I find child pornography abhorrent and do not condone its production or distribution. However, I cannot reconcile that me having a photograph of my own son swimming naked in my pool is child pornography. I also cannot reconcile that placing that photograph on my blog would be tantamount to disseminating or distributing child pornography online. I appreciate that there are evil people out there who might get some degree of cheap sexual pleasure from the photograph, but should that mean my posting of the photograph or even having it in the first place be considered as being in possession of child porn?

The idea that any image of a naked child is child pornography means that there is no artistic merit exception for artists that produce images of naked children. I am not an artist and therefore cannot give an adequate answer as to the artistic need for such images, but I believe that artists can make a case for the need for such an exception. The furore that erupted over images produced by Bill Henson last year is an example of do we need to draw lines in the sand, and if we do, then where do we draw them?

An interesting case has arisen in the US military where a National Guard soldier has been found in possession of images of a child, his four-year-old relative in a swimming costume. The images were sent to him by his mother as an attempt to relieve some of his homesickness associated with being posted on a tour of duty in Afghanistan. The US Army brass has decided to purse an investigation of the images with a view to a court martial. The penalty under US Army law is potentially a ten-year jail term. The rest of the soldier's unit has already returned back to the US after their tour of duty.

If this case is as simple as this soldier having a couple of images of a four-year-old relative in a swimming costume, then the US Army is wasting its time. Simply, it is making mountains out of molehills. By all accounts the images found by the US Army do not include any naked images. The closest you have to a porn image is a partially exposed buttocks (apparently still in a swimming costume).

The definition of what constitutes child pornography is going to have to be very tight. And, there will need to be consideration given to intent. There simply must be a mens rea component to the charge. If there is not a mens rea component then any image of a child may give rise to a possible child pornography charge. Seriously, is a shot of a young girl in a pose for a beauty pageant to be considered sexual or seductive?

The mind boggles as to where this can lead.

Although this post might lend itself to a photograph or two, I am not posting any...a silent protest (sort of).


anong said...

I am not a facebooker. But I do see adults looking rather "hungrily" at what I would call past aquaintances on FB: for example a teacher might follow a young ex-student over several years as he/she blossoms. I do wonder if the images may become more pornographic over time; as personal contact recedes?? Does leering make something ordinary pornographic?

I guess I wish only to note here that I would say it is difficult, for me to judge even an associate's intentions, when I see them looking at images; or in fact to judge the intentions of a blogger who posts an image......

Rob Baiton said...


I think it becomes pretty clear when social networking technology is being used to groom minors for sex or the exchange of sexually explicit images.

I don't know that the example works all that well. If a teacher and a pupil enter into a relationship where the student is a minor then there is an obvious problem. However, if the sexual relationship commences after a period of time after the student / teacher relationship has ended and both are consenting adults, then the question is, is it illegal for a former teacher and former student to enter into a relationship of a sexual nature when both are consenting adults?

On the leering front. I would argue that leering at something ordinary, if we assume by 'ordinary' you are referring to a fully clothed child, make it pornographic, then this in an of itself does not make it pornographic.

In any event, I am really looking at, and posing the question on, should there be a mens rea component to the charge.

I am not asking people to judge intentions per se. I am merely tossing into the mix whether or not 'intentions' are relevant to:

1. determining when something is art or porn; or
2. when family happy snappies suddenly become child pornography when the intent was not there to produce pornography when the images were produced and there is no intent to use the images for pornographic purposes in the hands of those who might end up with them.

I think you can make some determinations regarding a blogger's intent on posting certain images from the overall content of the respective blog and from the content of the associated post to those photographs.

anong said...

Thanks Rob. Ill ponder further. I see your point regarding the intentions of the producer of the material.

I guess I was more interested in the intentions of the viewer: and when/if a passing interest might become more than that; in the case of the teacher who may inveigle his or her way onto/into the facebook of young students for later voyeuristic pleasure, but when, as you point out, they may be "adults". Dunno....

Rob Baiton said...


The intentions of the viewer is an interesting one, and here is an example why.

Let's say Bill Henson continues to produce his art, including the naked image of a child every now and then, and he then holds an exhibition. Is it possible to regulate who comes to the exhibition to view the art? In that scenario there is no guarantee that the art will not be seen by some individual looking for a child porn fix.

I am not sure that the answer it to remove any artistic merit defenses that are currently available to artists.

As I said, I think there are distinctions to be made between current teachers and students through social networking media and former students and teachers.

In any event, I am confident that there is an acknowledged line drawn in the sand for where student teacher relationships cross the line.

anong said...

The case of a hapless cleaner at a kindergarden who regularly happens upon discarded photos of kids who have since left, and who innocently pins them up in his locker for nostalgic purposes.....gone!

Rob Baiton said...


Discarded photos? I guess it depends on the content of the photos, doesn't it? If they are photos of, say, a class, then this would hardly seem to meet the definition of child pornography.

Nah, if they were photos of a swimming carnival or the poses were all sexual, then that might not be so innocent.

You would hope that in your example that common sense would prevail. Nevertheless, I am sure that there would be those who would need to know why the cleaner saved the photos in the first place.

Interesting though.