Baby Swinging Video -- Update

I have written about this particular case a couple of times before, here and here. The case of Chris Illingworth and the baby swinging video posted on Liveleak after watching it and downloading it from YouTube. This is an interesting case as it has the potential to set a precedent as to what constitutes child abuse material under Australian law.

The case, which was subject to a recent committal hearing in the Maroochydoore's Magistrates Court in Queensland, has now been ordered to go to trial. A date for that trial has yet to be set.

There are a number of concerns in this case. First, is that there is no evidence to suggest that the child in the video clip that was posted, was in fact harmed. There is evidence of a speculative nature that the child may have been hurt. This evidence is speculative because the person giving it has not physically examined the child in question. She, Dr. Susan Cadzow, is basing that testimony on nothing more than having watched the video with respect to this case.

Second, whether the intent of the parliament when they passed this particular law was for this purpose. There is no doubt that the legislation is designed to protect children from violence and harm. There is no direct evidence that this child has been harmed. Furthermore, it is thought that the man and the child in the video are part of a circus troupe, and possibly operating somewhere in Eastern Europe. Police have yet to locate either the man or the child.

It seems that when this finally does go to trial that Illingworth and his lawyers are going to argue that this is not child abuse. At best this is a training video for circus performers. A novel argument and one that seemingly has some legs.

The moral of this story is that Australians need to be careful what they watch, let alone what they post, while online. The cold hared reality is that if the police continue to interpret the law in the manner this case suggest that they are, then even watching this type of video online means that the viewer is liable for a term of imprisonment of ten years.

I guess I am not going to be talking about whether I have watched this particular video anytime soon.

Child Abuse Material -- Australia to Set a Precedent

It seems that this is a perfect test case to to determine the reach of child abuse legislation as it relates to the uploading / downloading, publishing, and sharing of child abuse material. More specifically, the case also has the potential to establish exactly what kind of material can be classified as child abuse material for the purposes of sustaining a charge of publishing and sharing such materials online.

I have written about this case before, here. The case of Chris Illingworth is set for a committal hearing in Maroochydore Magistrates Court on 8 July 2009. The purpose of a committal hearing is to determine whether there is enough evidence to proceed to trial. Essentially, whether there is enough being put forward by the prosecution regarding guilt that a jury could make a determination as to the guilt or innocence of the accused.

What is interesting is that he has hired a silk (a term given to barristers who have been appointed Queen's Counsel / QC or Senior Counsel / SC) as this is unusual for a case like this and at this stage.

This suggests that the big guns (this is not to suggest that there are not solicitors out there who could not do the job) are being brought in at the start of the legal process, and rightly so, as this is a case where the implications extend way beyond the case itself. If the prosecution gets up in the Magistrates Court, then the definition of what constitutes child abuse material is considerably broader than what many had considered it to be previously.

The charges that Illingworth is facing could see him sent to prison for a maximum of ten years for each of the two charges that he is facing.

The offending video shows a Russian circus performer tossing his child around. The video does not show that the child has been harmed and in fact the child does not seem too bothered by the treatment and seems to enjoy it. Now, would I throw and swing my my son around, probably not at the moment seeing he is only just a touch over six months old.

However, I remember when I was a kid I liked to be swung around in circles by my arms and tossed up in the air (and caught again). So, it is probably just as well my folks did not record this and then in a moment of reminiscing I posted that video online.

Michael Byrne QC is going to argue that the video is a Russian circus training video. I probably would have argued something similar and probably would of tossed in a few videos of the Chinese training their kiddie gymnasts for comparison. I would have figured that any video that shows children undertaking strenuous physical activity at a very early age after having been removed from their homes and taken to a training facility would be tantamount to child abuse as well, even if the parents approve.

I might also be arguing whether this was the intent of the legislation in the first place. I have not looked at the parliamentary debate on the bill when it was proposed. However, I am guessing the focus was probably much more on the sexual exploitation and abuse of children.

The other question I would be asking is why is Illingworth being targeted considering that the video is widely available and has supposedly been shown on Australian TV? I have not seen it on TV and I am not going to admit to having watched it (as that would be tantamount to saying I have downloaded it / accessed it).

There is good reason for this as any Australian who views the video (and it is still available online) can be charged and liable to a maximum term of imprisonment not to exceed 10 years simply for accessing material that the police determine to be child abuse material.

The case would seem to be weak as the police's brief of evidence relies on a witness statement by someone who has not had any interaction with the family or the child in the video. Susan Cadzow, specialist pediatrician at Royal Brisbane Children's Hospital, made a witness statement to the effect that the baby was being swung vigorously but ends with the baby laughing and smiling. But, nevertheless, this does not mean, according to her expert opinion, that the laughter and smiles do not mask some hidden damage to the child. Therefore, and once again, according to Cadzow's expert opinion the video constitutes child abuse material.

I guess this is why I wouldn't want to be a police officer or public prosecutor on this one. No disrespect to the skills, experience, and expertise of Dr. Cadzow, but a witness statement about the possible harm done to a child based on the viewing of a video when having never examined the child seems to be a stretch.

What this case does mean at the moment is this. If you are a parent, then do not toss your child in the air and have someone else film it. Then in a moment of pride in your child having fun do not be tempted to upload this video to your blog or Facebook or other online location. If you do, then the next knock on your door might be the police looking to arrest you for dealing in child abuse material.

Big Brother is watching!