Legality of child pornography
Child pornography (also known as child abuse images [1][2][3]) is illegal in most but not all nations. In almost all Western societies, child pornography laws provide severe penalties usually including incarceration, for producers and distributors, with shorter duration of the sentences for non-commerical distribution depending on the extent and content of the material distributed. Convictions for possessing child pornography also usually includes prison sentences, but those sentences are often converted to probation for first-time offenders.[3] A large-scale movement is working to globalize the criminalization of child pornography, including major international organizations such as the United Nations, the European Commission, and others.[4][3]
International movement
In recent years there have been increased international agreements to outlaw child pornography. The Council of Europe's Cybercrime Convention, the United Nations Optional Protocol on the Rights of the Child, and the EU Framework Decision that became active in 2006, require signatory or member states to criminalize all aspects of child pornography, including its production, distribution, transmission, making available in any way, as well as acquisition and possession.[3]
However, while international efforts have made a difference and are continuing, the coverage of laws is not complete. A review in 2006 of child pornography laws in 184 countries by the International Centre for Missing & Exploited Children (ICMEC) and other organizations including Microsoft Corporation shows that more than half have no laws that address child pornography.[5] This review, however, only looked for specific laws related to child-pornography offenses. It did not take into account legislation that bans the "worst forms of child labor", nor did it consider countries in which there is a "general ban on pornography" to have legislation against child pornography because of the absence of legislation specific to child pornography.[6]
Article 34 of the United Nations Convention on the Rights of the Child ("UNCRC") stated that all signatories shall take appropriate measures to prevent the exploitative use of children in pornographic performances and materials.
International obligations to pass specific laws against child pornography "punishable by appropriate penalties that take into account their grave nature" as well as enable extradition, mutual assistance in investigation, and seizure of property were mandated by the subsequent Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
Some of the negotiations and reviews of the process took place at the World Congress against Commercial Sexual Exploitation of Children held in 1996 and 2001.[7]
National Laws
Australia
The maximum penalty is 10 years jail and/or a $120,000 fine. People have been successfully prosecuted after describing acts of abuse via SMS.[8] Operation Auxin in September 2004 led to the arrest of almost 200 people on charges of child pornography, and "sting" operations are common.
In December 2008, a Sydney man was convicted with possessing child pornography after sexually explicit pictures of children characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[9]
Canada
Canadian law forbids the production, distribution, and possession of child pornography. Prohibition covers the visual representations of sexual activity by persons (real or imaginary) under the age of 18 years and the depiction of their sexual organ/anal region for a sexual purpose, unless an artistic, educational, scientific, or medical justification can be provided and the court accepts it.
India
In February 2009, the Parliament of India passed the Information Technology Bill which made creation and transmission of child pornography illegal. The bill also enables India's law enforcement agencies to take strict action against those seeking child pornography. For example, browsing for child pornography on the internet can lead to a 10 year term in jail and Rs. 1 million fine.[10]
Japan
Child pornography is illegal in Japan since the establishment of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children in 1999. Providing child pornography to unspecified persons shall be punished up to 5 years of imprisonment with work and/or 5 million yen of fine.
Control of simple possession including unwanted receiving or holding without intention of child pornography is discussed by jurists, politicians and citizens.
Philippines
The first documented cases of child pornography in the Philippines were in the 1970s. These were produced by American soldiers stationed in Vietnam who went to different Southeast Asian countries, including the Philippines, for rest and recreation. Some of these soldiers were alleged to have produced pornographic images of Filipino children.[citation needed]
Portugal
(1) Child Pornography is statutorily criminalised in the Portuguese Criminal Code (Código Penal Português). The age of sexual content in Portugal is, in principle, 16 years of age. The participation of underage persons in pornographic scenes is subject to stricter standards however because they are subject to the general regime of adulthood, which was set by the Civil Code at the age of 18.
Section 176 of the Portuguese Criminal Code criminalises the following behaviours:
(a) the use or the incitement of an underaged person to participate in a pornographic scene (including live sex shows, photos, tapes, digital recordings, etc).
(b) the production or the distribution of any materials containing underaged persons engaging in pornography.
(c) the possession of pornographic materials containing underaged persons engaging in pornography with the purpose of distributing them.
(d) the use, incitement to use, production, distribution or possession with the intention of distribution of pornographic materials containing a realistic representation of an underaged person.
This is an extremely complex provision that, in practice, attempts to ban the participation of all persons bellow the age of 18 in any kind of scene of a pornographic nature.
(2) The standard penalty for the performance of any of these actions is set as imprisonment for a period between one and five years. This standard penalty is subject to a number of aggravations and attenuations however depending on the specific circumstances. See section 177 of the Portuguese Criminal Code.
(3) This section of the Criminal Code has raised severe controversy. Firstly, the terminology contained in it is imprecise because there is no definition of the concept of "pornographic scene". Secondly, many authors have criticised the criminalisation of the "realistic representation of minors" because they see it a disproportionate restriction of the freedom of expression, a fundamental right protected by the Portuguese Constitution. These difficulties have had an impact on the courts, who have been extremely cautious with the application of this section of the Criminal Code. The case law is varies widely and there is no legal certainty concerning the application of this provision.
Taiwan
Child and Adolescent Sex Exploitation Prevention Act criminalized the production, broadcast, distribution, exhibition of child pornography. Simple possession of such materials without justifiable cause is punishable by fines.
United Kingdom
In the United Kingdom, it is illegal to take, make, distribute, show or possess an indecent image of a child. In the context of digital media, saving an indecent image to a computer's hard drive is considered to be "making" the image, as it causes a copy to exist which did not exist before.[11] Indecency is to be interpreted by a jury, who should apply the recognised standards of propriety. A child is a person who has not reached the age of 18.
United States
In the United States, child pornography is illegal under federal law and in all states. Although child pornography may also be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by decisions by the US Supreme Court to be outside the protection of the First Amendment regarding free speech,[12] it is defined differently from obscenity. Federal sentencing guidelines regarding child pornography differentiate between production, distribution and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12.[13]
References
- ^ Wortley, Richard (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192. ISBN 1881798615.
{{cite book}}: Unknown parameter|coauthors=ignored (|author=suggested) (help) - ^ Sanderson, Christiane (2004). The seduction of children: empowering parents and teachers to protect children from child sexual abuse. Jessica Kingsley Publishers. p. 133. ISBN 184310248X.
- ^ a b c d Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd. p. 11-13. ISBN 0754622975.
- ^ Cite error: The named reference
worldcongresswas invoked but never defined (see the help page). - ^ "Child Pornography Not a Crime in Most Countries" (PDF). International Centre for Missing & Exploited Children. 2006. Retrieved 2009-09-19.
- ^ Child Pornography: Model Legislation & Global Review, 2006 (page 7, footnote 15)
- ^ World Congress against Commercial Sexual Exploitation of Children
- ^ AFP (2007-07-17). "Queensland man charged over SMS child pornography".
- ^ "Simpsons cartoon rip-off is child porn: judge". The Age. 2008-12-08. Retrieved 2009-11-18.
A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.
- ^ Swati Deshpande, TNN 16 February 2009, 05:59am IST (2009-02-16). "Browsing child porn will land you in jail". Timesofindia.indiatimes.com. Retrieved 2009-10-16.
{{cite web}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link) - ^ Internet Watch Foundation - R v Bowden http://www.iwf.org.uk/police/page.99.209.htm
- ^ "Remarks of Arnold I Burns Before the Florida Law Enforcement Committee on Obscenity, Organized Crime and Child Pornography". NCJ 109133. National Institute of Justice. 1987-12-03.
- ^ "Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties (as directed in the Sex Crimes Against Children Prevention Act of 1995, Section 6, Public Law 104-71)". United States Sentencing Commission. 1996: p9.
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External links
- National Center for Missing and Exploited Children (USA). "Child Pornography Fact Sheet".
- National Society for the Prevention of Cruelty to Children (UK). "Child abuse images and the internet: A reading list".
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| Child sexuality | |
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