A typology of online child pornography offending
Date: May 16, 2005Source: Australian Institute of Criminology
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The Internet has increased the range, volume and accessibility of sexually abusive imagery, including child pornography. Child pornography depicts the sexual or sexualised physical abuse of children under 16 years of age. Australia has joined many other nations in an international effort to combat this multi-faceted global menace that combines both heavily networked and highly individualised criminal behaviour. This paper examines the typology of online child pornography offending, as well as law enforcement responses to the problem. This work is a result of a collaborative program between the Australian Institute of Criminology and the Australian High Tech Crime Centre.
Toni Makkai
Acting Director
Child pornography existed before the creation of the Internet. It is not possible to say whether the advent of the Internet has fuelled the demand for child pornography and expanded an existing market, or whether it simply satisfies in new ways a market that would have existed in any event. It is clear, though, that the Internet provides an environment for the proliferation of child pornography and the creation of an expanding market for its consumption. This paper explores three important questions:
- What is online child pornography?
- Is there a typology of offending online?
- If so, what are the implications for law enforcement?
What is child pornography? A non-legal definition
As pointed out by Taylor and Quayle (2003), the legal definition of child pornography does not capture all the material that an adult with a sexual interest in children may consider sexualised or sexual. As they argue, understanding why child pornography is produced and collected requires us to think beyond the legal definition of child pornography. Based on a study of online content at the Combating Paedophile Information Networks in Europe centre (COPINE), Taylor and Quayle identified 10 categories of pictures that may be sexualised by an adult with a sexual interest in children. Material in some of these categories does not come within the legal definition of child pornography. For example, in the first category are non-erotic and non-sexualised pictures of children in their underwear or swimming costumes from commercial or private sources, in which the context or organisation by the collector indicates inappropriateness. The second category comprises pictures of naked or semi-naked children in appropriate nudist settings. The third category is of surreptitiously taken photographs of children in play areas or other safe environments showing underwear or varying degrees of nakedness.
Although material in the first category and some of the material in the second and third will not be caught by the legal definition of child pornography, all may be indicative of a sexual interest in children and are therefore potentially important in the investigation of child pornography offences.
The legal definition of child pornography
The Australian regime to regulate pornography (whether online or not) essentially relies on state and territory laws (for convenience referred to here as 'state laws'). The provisions prohibiting the possession of child pornography are listed in Table 1. There are also provisions against the manufacture, distribution or sale of child pornography with more severe penalties.
| Jurisdiction | Provision | Year | Maximum penalty |
|---|---|---|---|
| ACT | s 65, Crimes Act 1900 | 1991 | 5 years |
| NSW | s 578B, Crimes Act 1900 | 1995 | 2 years/100 penalty units |
| NT | s 125B, Criminal Code | 1996 | 2 years/$20,000 corporate penalty |
| Qld | s 14, Classification of Publications Act 1991 | 1991 | 1 year/300 penalty units |
| SA | s 33, Summary Offences Act 1953 | 1992 | 1 year/$5,000 |
| Tas. | s 74, Classification (Publications, Films and Computer Games) Enforcement Act 1995 | 1995 | 1 year/50 penalty units |
| Vic. | s 70, Crimes Act 1958 | 1995 | 5 years |
| WA | s 60, Censorship Act 1996 | 1996 | 5 years |
Child pornography is generally defined as material that describes or depicts a person under 16 years of age, or who appears to be less than 16, in a manner that would offend a reasonable adult. However, this legal definition can be difficult to apply (Grant et al. 1997) because of jurisdictional differences. For example, in some states there must also be the depiction of sexual activity by the child or some other person in the presence of the child. Difficulty also arises from the fact that child pornography laws usually require a judgment to be made whether material is offensive or not.
The state laws regarding child pornography intersect with federal censorship laws contained in the Classification (Publications, Films and Computer Games) Act 1995 (Cwlth). In two jurisdictions (NSW and NT) the legal definition of child pornography also includes material that has been refused classification under this Classification Act.
The Broadcasting Services Amendment (Online Services) Act 1999 (Cwlth) created a non-criminal process for reporting web sites that host material which would be refused classification (as well as X- and R-rated material that is easily accessible without adult verification). The Australian Broadcasting Authority (ABA) can issue a take-down notice to have Australian-based web sites remove this content. If the site is hosted overseas, the ABA can notify content filter developers to add it to their lists of offensive sites (Chalmers 2002).
Proposed national law
In June 2004 the Australian government introduced a Bill to enact federal laws, tied to the power to regulate telecommunications, covering child pornography and grooming (Attorney-General's Department 2004). The Bill defines child pornography in terms of the depiction of a child under 18 years of age and provides for a penalty of 10 years for possession of child pornography, and 15 years for online grooming.
Children actually or apparently under 16
It is not necessary to prove that a child depicted was in fact less than 16 years of age at the time the image was created. It is enough that they appear to be under that age. The legislation therefore applies to images of a person over the age of 16 who is made to appear younger than that. Standard medical indicators of the physical developmental stages of children may be used to assess whether an image depicts a child under the age of 16 (Censorship Review Board 2000).
Morphed images of children
The definition of child pornography may include morphed pictures. Taylor (1999) refers to such images as pseudo-photographs, and they are classified according to three types:
- digitally altered and sexualised images of bodies, such as a photograph of a child in a swimming costume where the costume has been electronically removed;
- separate images in one picture, such as a child's hand superimposed onto an adult penis; and
- a montage of pictures, some of which are sexual.
The ease with which a morphed collection can be put together, even without the capacity to digitally alter images, is illustrated by the case of convicted double murderer and serial rapist Lenny Lawson. Lawson was one of Australia's longest serving prisoners when he died in custody at the age of 76, three days after being transferred to a maximum-security unit. This transfer followed the discovery in Lawson's cell of a collection of video tapes which in part contained images from Sesame Street spliced with other program material to produce what was described by the prison psychologist as a collection of 'voyeuristic sexual fantasies and sexual perversion, often associated with children' (Mitchell 2004).
Creating fictitious children under 16
Child pornography can be created without directly involving a real person. The words 'describing or depicting' are capable of including text, images and three-dimensional objects. While these laws were initially framed in relation to photographs, videos and film, the language extends to cover the development of online pornography. The offence provisions do not require a real person to be described or depicted, and they include fictional characters in text or digitally created images of fictional characters.
In Dodge v R (2002) A Crim R 435, a prisoner in Western Australia who was serving a long sentence for sexual offences against children was convicted of further offences after writing 17 sexually explicit stories about adult males involved in sexual acts with young children (mostly boys aged...
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