Child pornography: an international perspective
Date: August 02, 2004Source: United Stated Embassy Stockholm
By:
This paper was prepared as a working document for the World Congress against Commercial Sexual Exploitation of Children by Margaret A Healy for ECPAT
EXECUTIVE SUMMARY
Child pornography is a problem of international proportion. The global community has recognised that children are at risk from those who engage in the production, exhibition, distribution, and consumption of child pornography and that children can suffer serious negative effects as a result of pornographic exploitation. The United Nations Convention on the Rights of the Child ("UNCRC"), which has been ratified by an overwhelming majority of the nations of the world, identifies child pornography as a violation against children and requires that nations who are parties to the convention take measures to prevent the exploitative use of children in pornographic materials. Despite the notable efforts of many nations, child pornography remains a serious issue.
Challenges to any study of international child pornography include: 1) the lack of any uniform definition of what child pornography entails; 2) lack of data regarding the production and distribution of child pornography in many parts of the world, particularly Africa and Latin America; and 3) shifting global patterns of production and consumption of child pornography.
Furthermore, the development of home video equipment and computer technology has revolutionised the international production and distribution of child pornography. Rapidly expanding international access to increasingly inexpensive technology has transformed child pornography into a sophisticated cottage industry. Computer alteration of images and the potential for creating computer generated pornography pose formidable challenges for courts and law enforcement officials throughout the world.
This paper begins by providing a definition of child pornography, examining the scope of the problem, and describing the characteristics of both victims and exploiters. It presents a discussion of the uses of child pornography and of the effects that child pornography may have on both child victims and on potential and actual offenders.
The paper also identifies some of the major centres of global production and consumption of child pornography and spends considerable time discussing the impact of computer technology on the production and distribution of material that sexually exploits children. The remainder of the paper is dedicated to a discussion of individual national strategies designed to counter both traditional and computer child pornography through regulatory measures. While only a small number of countries can be surveyed due to space considerations, this paper assumes that child pornography is a pressing problem on local, national and international levels and that all nations have an important part to play in the solution.
I. DEFINITION OF CHILD PORNOGRAPHY
The question of what constitutes child pornography is extraordinarily complex. Standards that are applied in each society or country are highly subjective and are contingent upon differing moral, cultural, sexual, social, and religious beliefs that do not readily translate into law. Even if we confine ourselves to a legal definition of child pornography, the concept is elusive. Legal definitions of both "child" and "child pornography" differ globally and may differ even among legal jurisdictions within the same country.
The legal definition of a "child" varies among nations. The UNCRC defines a child as a person under 18 years of age. This definition, however, is far from being universally adopted. For example, in all Australian States and Territories, child pornography legislation defines "child" as a person under 16 years of age. In Canada (Penal Code Sec. 163), a minor, for purposes of child pornography, is a person under 18 years of age. In various jurisdictions of the United States (U.S.), minors as young as 15 may legally consent to sexual activity with an adult. However, that same adult could not create, distribute, or possess a visual record of that activity because federal child pornography statutes (18 U.S.C. 2252, 2256) define a minor as any person under that age of 18 years.
Despite national differences, some international bodies have been able to arrive at common definitions of child pornography, most of which focus on visual, rather than written material. The Council of Europe defines child pornography as "any audiovisual material which uses children in a sexual context." Council of Europe, Recommendation R(91)11 and Report of the European Committee on Crime Problems (1993).
International Criminal Police Organisation ("INTERPOL") delegates define child pornography as "the visual depiction of the sexual exploitation of a child, focussing on the child's sexual behaviour or genitals." Interpol Recommendations on Offences Against Minors, INTERPOL 61st General Assembly (1995).
For the purposes of this paper, recognizing that each country's legal definition of "child" may be different, the term "child pornography" will refer to a "sexually explicit reproduction of a child's image." Kenneth V. Lanning, Child Molesters: A Behavioural Analysis 24 (1992). Child pornography is to be distinguished from "child erotica" which is "any material relating to children that serves a sexual purpose for a given individual." Id. at 26. Child erotica includes such items such as toys, games, children's clothing, sexual aids, manuals, drawings, catalogues, and non-pornographic photographs of children. Child erotica is not illegal but is frequently used by prosecutors as corroborating evidence in cases against child molesters Some experts distinguish "sexual molester" or "abusers" from "sexual exploiters" employing the term "sexual exploitation" to describe only commercial interactions or to distinguish extra-familial abuse from that which occurs within the family. The terms "child molester" and "child abuser" will be used interchangeably in this paper to denote a significantly older person who engages in sexual activity with someone who is legally a child. The term "child exploiter" will include those who sexually molest children as well as those who sexually exploit children through the production, distribution, and/or collection of child pornography. or child pornographers.
The definition of child pornography, in some countries, is harm-based. For example, U.S. law, which is characterised by an elaborate commitment to the protection of free speech, has addressed the issue of child pornography from the perspective of preventing harm to child victims rather than censoring expression. Child pornography is criminalised in the United States because it represents "the permanent record of the sexual abuse or exploitation of an actual child." Lanning, supra note 3, at 24. As stated previously, it may be legally permissible to engage in sexual activity with a 16 or 17 year old in some jurisdictions. The filming of that encounter would be illegal under federal law but the depiction could not be considered a record of the abuse of a child. The Films, Videos, and Publications Classification Act (1993) promulgated in New Zealand makes similar reference to child pornography as a "permanent recording of the exploitation of children or young persons for sexual purposes." The approaching technological capacity to produce lifelike computer generated pornography will challenge such harm-based definitions of child pornography.
II. SCOPE OF THE PROBLEM
Child pornography is an international phenomenon. Most of the data that exists regarding the extent and nature of the problem has focussed on North America and Northern Europe--regions which have played a key role in the production, distribution and consumption of child pornography. "The U.S. market for child pornography is widely thought to be the most lucrative in the world." Child Pornography and Paedophilia: Report Made by the Permanent Subcommittee on Investigations, U.S. Senate, 99th Cong. 2d Sess. 34 (1986) [hereinafter U.S. Senate Report]. In developing countries, the reality of child pornography is dwarfed by the magnitude of other problems such as poverty, infant mortality, illiteracy, hunger, and disease and often there is little reliable data on the subject. Nonetheless, the pornographic exploitation of minors is a phenomenon that exists throughout the world.
1. Identifying the Victims
Girls and boys of all ages, including infants, are used to produce pornography around the world. Estimates of the number of children worldwide involved in child pornography range from thousands to hundreds of thousands. While impossible to obtain accurate data, a perusal of the child pornography readily available on the international market indicates that a significant number of children are being sexually exploited through this medium.
As to the gender of the victims, Federal Bureau of Investigation ("FBI") personnel estimate that over 50% of all child pornography seized in the United States depicts boys rather than girls. Canadian Customs puts that figure at 75% for Canada. The data regarding childhood sexual abuse in most countries, including the U.S. and Canada, does not reflect the same predominance of boy victims. Virtually all studies have...
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