Child Abuse -- The Baby Swinging Video Charges Dropped...

Finally, common sense has prevailed in this case and the charges have been dropped. This case was a loser from the outset and should never have been brought by the police. It was a case of over-zealousness on the part of the police or maybe even a not so subtle attempt to try and judicially broaden the scope of the relevant legislation. In any event, it failed and rightly so.

I have written about this case on three separate occasions and you can find those posts here.

The Office of the Commonwealth Director of Public Prosecutions (CDPP) has dropped the charges. The realization that if this went to a jury trial that they would be very unlikely to succeed in convincing a jury of Christopher Illingworth's peers that he was guilty of distributing child abuse material has prevailed.

The video was posted on Liveleak and showed a man swinging a baby. The man and the baby remain pretty much unknown. However, the video is purportedly of either a Russian or Ukrainian circus family doing a little bit of training. At the end of the video the baby is smiling and laughing.

What was even more bizarre was that the Australian Film Classification Board classified this as MA15+ which would suggest that they were not convinced that the material was of a standard that would see it become a criminal offense under the provisions for child abuse material. Ultimately, the classification sealed the deal for Illingworth. There was simply no way that a jury would have been convinced that he had broken the law.

This ends the criminal saga however it is unclear whether Illingworth has any recourse for the trauma he has suffered as a result of his home being raided by the police, his arrest, and subsequent committal for trial.

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.

The Law and Online File Sharing -- An Australian Example

This case is really interesting for a number of reasons, but paramount among these is that of a law being designed for a particular purpose being literally interpreted and nabbing an unlikely victim. Law enforcement in Australia is generally pretty good. Like all other places there are times when one shakes their head in disgust or disbelief at how laws are interpreted and applied. This might just be one of those occasions where statutory interpretation goes a little bit awry.

Chris Illingworth, a seeming harmless 61-year-old from Maroochydore in Queensland has been charged with distributing child abuse materials over the internet (video capture of the event and inset of Illingworth from here). Illingworth came across a video of a man swinging a child by the arms and thought it worthy of being republished on Liveleak (video sharing site). The man and child in question are part of a circus troupe form Russia (or at least that is the belief) and perhaps this is what the Russians do, start the training of their youngsters and future circus performers at a very young age.

It must be noted that Illingworth has no criminal history relating to child abuse of any kind. An extensive search by police of his home and his computers turned up no images that would violate any provisions of current law.

The video certainly shows the child being swung around. There are probably arguments to be made for and against how violent the swinging is. However, the video ends with a smiling and laughing child.

Where this gets a little scary is the involvement of "experts" who get to offer opinions based on watching a video and through no interview of the alleged victim. In this case the police called in a specialist pediatrician, Susan Cadzow, from Royal Brisbane Children's Hospital. Now, in Cadzow's expert opinion this video represents child abuse and although no injury appears apparent this is irrelevant as there might be hidden injuries that will not manifest until some later time.

If police are going to charge people for this and then the Office of Public Prosecutions is going to proceed with a prosecution, then Australians should be forewarned and thus forearmed that the long arm of the law is gunning for you with seemingly endless powers of interpretation. The law though is helpful to the police as child abuse material "is, or appears to be, a victim of torture, cruelty or physical abuse" where the victim is appears to be under the age of 18.

What is helpful to police about this definition is that it does not require actual abuse to be taking place, it just has to be perceived as abuse and the police can take action.

This begs the question, would a video of say a child contortionist undergoing training and being videoed and then this video is uploaded to the internet constitute child abuse? Or even where the contortionist is performing for money, wouldn't this be child exploitation and subsequently abuse?

So, what were the police thinking in this case and why did they decide to proceed?

It seems that Illingworth is going to become an interesting test case. Although, I am sure Illingworth would rather not be the centre of any test case. Unfortunately, for him this is what he has become.

The case will certainly set a precedent, at least in the Australian jurisdiction, as to what constitutes child abuse and the enforcement of the provisions as they relate to viewing and uploading child abuse material. If the prosecution succeeds on this, then Illingworth is potentially looking at doing up to a maximum of ten years in prison for uploading a couple of circus performers, one of who was under the age of 18.

Scary.