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Sentencing in child pornography cases:
A Response to the
Sentencing Advisory Panel's Consultation Paper
By Tom O'Carroll, 2002
speaker at the
This paper addresses fundamental issues before turning to questions of detail such as those posed by the Sentencing Advisory Panel. In doing so, extensive use is made of the COPINE classification. The view is taken that this is a useful descriptive tool but not suitable for most sentencing purposes. The analysis begins (Section A) by proposing that offences at COPINE levels 1-6 inclusive should be considered separately from those at levels 7-10. It is contended that offences at the lower levels are vulnerable to challenge under Article 7 of the European Convention on Human Rights because of the vagueness of the word "indecent" in the legislation, and that sentencing needs to be consistent with human rights requirements. Suggestions are made as to how this can be achieved.
With regard to the higher level offences (Section B), it is suggested that the seriousness of the offences needs to be assessed strictly in relation to the stated purpose of the legislation and that the cultural, sub-cultural and personal contexts of offending inhere in such an assessment. Relevant scientific research and developments in other major jurisdictions are discussed before proposals for sentencing are made.
Sections C-G inclusive deal with specific questions and problems. Sections C and D are organised respectively around possession and distribution. Section E discusses the COPINE classification, Section F the Sex Offenders' Register and Section G the defendant's character. The final part, Section H, addresses the role of the Panel.
A: Key issues at COPINE levels 1-6
(1) A human rights problem
As a poorly-drafted private member's bill, adopted under pressure and against its better judgement by the government of the day, the Protection of Children Act 1978 can be expected to come under increasing human rights challenge. So can section 160 of the Criminal Justice Act 1988 and indeed section 42 of the Customs Consolidation Act 1876. All of these measures invoked against "child pornography" rely fundamentally on interpreting the highly elastic word "indecent" (My quotation marks in this sentence reflect the contested nature of the terms within them. I do not, however, mean to deny the existence of material which any reasonable person would describe as "child pornography"). As such they are open to challenge under Article 7 of the European Convention on Human Rights, adopted in the UK by the Human Rights Act 1998, which requires that "criminal offences should be clearly defined in the law, so that people can regulate their behaviour so as to stay within the law". (1)
If, however, the Sentencing Advisory Panel is disposed to take this factor into consideration in its recommendations, the sting could be drawn from the strongest potential human rights challenges. Whether the Panel would consider such tactics to be a proper exercise of its functions is not a matter I propose to address. My principle concern in what follows is merely to make suggestions that would enable sentencing in relation to "child pornography" offences to be as consistent as possible with human rights under current legislation. Laws fully consistent with such rights in respect of defendants, and indeed consistent with the protection of children, lie outside the Panel's remit. Accordingly, I shall not waste the Panel's time day-dreaming about what our laws might look like in a more nearly ideal world.
What I feel is necessary, though, is to examine a little more fully the dangers of injustice to children as well as to defendants inherent in the current legislation, so as to illustrate the caution with which sentencing under it needs to be approached.
In a commentary on an early draft of the Protection of Children Bill, Geoffrey Robertson QC said the Bill would have "the result, if not the purpose, of extending censorship and will make the protection of children considerably more difficult". He pointed out that the Home Office took the view that the existing legal safeguards were adequate. Robertson said he agreed with the Home Office on this, subject to a short amendment of the Indecency with Children Act 1960. (2)
Harriet Harman QC, now the Solicitor General and then Legal Officer of the National Council of Civil Liberties, made an effort to dilute the impact of a Bill she too appeared to regard as potentially oppressive. In an NCCL response to the government she proposed amendments that would have required the definition of "indecent" to be qualified so that an image would not be considered indecent (a) by reason only of depicting nudity; or (b) unless it could be shown that the child depicted had been harmed. (3)
That the concern expressed by Robertson and Harman was shared by the government of the day was expressed very clearly during the Second Reading of the Bill in the House of Commons by Home Office minister Brynmor John. He said he had received "a great volume" of letters from his constituents, nearly all of whom had appeared wrongly to assume the existing law could not be used against "child pornography". As for the indecency test, he said:
The reasons for Robertson's caution were eloquently and forcefully set out in his book Obscenity. (5) After Brynmor John had expressed his anxieties in the Commons, the Home Office minister in the Lords, Lord Harris, at a later stage gave an assurance in the upper house that "there is no danger that ordinary family snapshots, or legitimate sex education material, would be caught by the terms of the Bill", Robertson said "If the Home Office wished to make illegal only that class of indecency which is designed to appeal to prurient interest, it should have said so in the statute, rather than in Hansard". (6)
The danger lies in the vagueness of the word "indecent". As Robertson says, "Indecencyis assumed to have an ascertainable meaning in law. Jurors and justices who use it as part of their everyday language are trusted to know it when they see it." Yet "Scientific surveys, parliamentary debates and jury verdicts demonstrate no measure of consensus either about community standards or the sort of material which infringes them." (7)
While very few are likely to find this a problematic issue with regard to material in COPINE classes 7-10, it is a matter of the liveliest controversy at levels 1-6.
Cases that hit the headlines thanks to the prominence of those involved, such as that of the newsreader Julia Somerville's partner (8) and the Saatchi Gallery exhibition of artist Tierney Gearon, (9) tend to be characterised by a high-profile police investigation followed by an entirely proper reluctance by the Crown Prosecution Service to bring charges. Those by contrast who may be just as innocent of prurient motivation, but who cannot command the sympathies of the media or the art establishment, face much rougher justice.
At the heart of the confusion that besets the POCA is not merely the fact that the indecency standard was always questionable, even in its older applications. Additionally, and crucially, the difficulties were compounded when this standard was pressed into service for "child pornography" law. This is because the declared purpose of the POCA is radically different to that of those older laws. (10) The POCA was promoted as a measure designed to protect children against exploitation arising in the production of "child pornography". This contrasts radically with more traditional indecency laws, such as the Vagrancy Acts, which prohibit offensive public displays. These have been aimed against "a public nuisance, an unnecessary affront to people's sense of aesthetic propriety". (11)
When deciding what can be regarded as a public nuisance, and what does affront most people's sensibilities, it makes some sense to ask a jury what they think about the matter. For who could be better placed than these iconic representatives of "the people" to pronounce on public standards? In such cases "applying the recognized standards of propriety" (the 1972 test of indecency in Stamford, which is also the test applicable to the POCA (12)) is appropriate. As applied to public standards, this test has the merit of both temporal and spatial flexibility. Standards over time, as one wit put it, "go up and down with the length of the skirts". Juries or justices are able to respond accordingly. Likewise, the test allows metropolitan sophisticates to take a more liberal line with material in their area than would be considered appropriate in a conservative rural shire.
However, it makes no sense at all to have such a subjective, variable standard when the protection of children in a photograph is at issue. The children depicted may live in any part of the UK or the world. They may indeed be Victorian children, long gone to the grave and far beyond the ability of the law to protect them. And if the level of protection afforded to children by the measure is arbitrary, the effect on defendants is more dangerously so. Robertson refers to the judicial gloss in the 1973 case of Knuller, when Lord Reid said of indecency: "it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting or revolting." In other words, as Robertson says, " 'Indecent' in law is that which marginally shocks ordinary modesty. It is a standard so vague and arbitrary that no citizen can know, at least before a court has found him guilty, whether or not he has committed an offence." (13)
This confounds the elemental protection of due process. As a friend of mine put it, it is like a driver being told there is a speed limit in force but not told the speed at which it is set. Indeed the limit in Manchester may be quite different to that prevailing in a place with comparable traffic conditions such as Birmingham. Likewise the authorities in various rural areas may have differing ideas as to what is a safe speed. Compounding the problem, the limits can be expected to change from year to year. The poor driver only gets to know what the limit is when a police car pulls him over and tells him he has been going too fast, and when a court upholds the police view. Indeed the rule is a chimera made for improper application. Individual police officers will tend to apply their own subjective view as to what is a safe speed, so that a charge may be brought against one driver but not to another doing exactly the same speed in identical circumstances.
(2) The purpose of the law
In view of this ghastly problem of uncertainty, it is more than ordinarily important in "child pornography" cases for sentencing to be firmly anchored to a clear principle and that this principle should clearly reflect the purpose of the legislation. I propose to start with the purpose of the POCA and to what extent, if any, sentencing under this Act and subsequent "child pornography" measures can be deployed to serve this purpose.
In the text of the statute, the POCA's purpose is stated briefly in the first line as "An Act to prevent the exploitation of children by making indecent photographs of them". The SAP has put forward the view that "An image of a child or children involved in explicit sexual activity actively records the commission of a serious sexual offence. Images that are relatively less harmful (such as a still photograph of a naked child in a sexually suggestive pose) may still involve the exploitation or degradation of the child or children. (14)
While I have no quarrel with the stated purpose of the POCA no-one would declare himself in favour of exploiting children, even in a country that once sent them down the mines and up the chimneys to work in appalling conditions it seems to me far from self-evident that "indecent" photographs necessarily involve exploitation in their making, especially as regards those at the lower end of the scale, in COPINE classes 1-6. Indeed, the SAP concedes this point by saying "Images that are relatively less harmfulmay still involveexploitation or degradation" They may. Or they may not. Unfortunately, the SAP fails to pursue the logic of this ambivalence. Taking a shotgun approach, the Panel opts to assume the worst and blast away regardless.
This approach risks serious injustice to defendants who may not have behaved in an exploitative way. Worse still, by encouraging the view that marginal cases are suitable for investigation and prosecution, the SAP is guaranteeing the fulfillment of Robertson's dire prediction that the protection of children would be made "considerably more difficult" by the POCA. How so?
We need only to look at how the Act has been applied, and how thinking along the lines advocated by the Panel has brought significant distress and palpable harm to children in the firing line and I refer here to the said shotgun approach, not to the shooting of photographs, which is not intrinsically harmful, and nor does an erotic element to the images necessarily make it so.
Where the law is vague, as lawyer Lawrence Stanley has pointed out, it will be enforced shotgun fashion to its furthest reaches. In a book (15) written in connection with a then impending law reform in the Netherlands, he described one such case that came before the British courts with what must have been a devastating effect on the 12-year-old girl concerned. The case was that of Arthur Cotterill, an artist and photographer, who was acquitted on appeal following charges of taking indecent photographs of her. Although the images were of mere nudity (COPINE level 2) and there was no indication that the defendant ever attempted to seduce the girl, she was placed into care when her father was charged with allowing her to pose naked. Six weeks later the girl was allowed back to the family home and the charges against her father dropped.
One can imagine the anxiety and distress this episode must have caused the child for six weeks that must have seemed a lifetime and which must have given her a very dim view of the authorities who were supposed to be acting for her "protection". But this aspect of the ordeal was only part of a story which saw first the investigation, leading to Cotterill's conviction at a magistrates' court, and then the passing of a full year before the finding of guilt was overturned at Guildford Crown Court. In the Crown Court the defendant was permitted to introduce expert testimony (a rare, perhaps even unique, concession in a POCA case) from Constance Nash, an artist who has exhibited at the Royal Academy, on the role photographs can play as "sketches" used as a basis for an artwork. The judges said they had reviewed all 69 photos at issue and found none of them to be indecent. (16)
Unfortunately Cotterill lacks weight as a precedent with regard to the finding that depicting a child's mere nudity in a photograph is not indecent. Nor does the later leading case of Graham-Kerr appear to establish this with certainty. From the account given in Rook & Ward (17) it seems that the two photos at issue of a seven-year-old boy were nude shots. However, no judicial pronouncement as to the acceptability of images recording child nudity per se is recorded either here or in Archbold. Presumably it was felt that this must be a jury decision in every case. In the absence of any binding precedent on nudity, we may be sure many other children and their parents and friends have been harassed and needlessly put in fear of their future thanks to the over-zealous enforcement of the POCA.
Generally it is only the exceptional cases, where a well-known artist is involved, that come to our attention. But a dramatic indication of the potentially large unseen problem was given after Portfolio Gallery owner Nikki Akehurst was featured on the Radio 4 programme Start the Week in a discussion of the POCA. Three parents who had been arrested for allegedly indecent photos of their children phoned her. All of them had been threatened that unless they pleaded guilty their children would be taken into care. The prosecutions were eventually dropped. (18) As Feminists Against Censorship aptly put it in a letter published by Independent Magazine, "In cases like this, the so-called protection of the police doesn't stop child abuse; it is child abuse." (19)
Home Office minister John Patten had given a public assurance in 1988, when the "possession" law was brought in, that "it had never been the intention to target innocent family snaps of naked children in the bath or on the beach". (20) Whether deliberately "targeted" or not, such snaps have fallen foul of the authorities though. A report in The Independent described what happened to one family in southern England:
In the House of Lords committee stage of the Protection of Children Bill even the noted anti-pornography campaigner Lord Longford had been at pains to emphasise that the Bill was not intended to catch mere nudity. (22) He said: "We are not talking, after all, of nude photographs; we are talking of indecent photographs." These days the distinction is in danger of being lost, not least thanks to the kind of talk we have been hearing from the SAP talk inspired, it seems, by a body of empirically unsupported dogma promoted by the child abuse lobby. The claims made in this connection, relating to the supposed harm caused by the creation of even marginally immodest material and its possession by "paedophiles", constitute a theme to which I will return.
The distinction made by Lord Longford, supported at the time by Baroness Faithfull, who introduced the Bill in the House of Lords, was in any case always a dubious one. It was prayed in aid, one suspects, in order to smuggle through parliament what was intended to be a censorious measure by those who had lobbied for it. The reassuring words were just a smokescreen to cover those intentions. Lord Longford must have known that in ordinary usage the word "indecent" can, as Robertson has pointed out, have a very low threshold. When someone answers the doorbell and shouts through the door "Hold on a minute, I'm not decent", what they intend to convey is that they are not fully dressed. Total nudity in this context would certainty count as indecent, or at any rate "not decent".
Police specialists have certainly interpreted the POCA in an equally broad way, according to Stanley. During discussions following a raid under the POCA on professional photographer Ron Oliver, Sergeant Platt of the Obscene Publications Squad informed solicitor Donald Galbraith that it was the position of the OPS that any portrait of a child posed nude is indecent under British law. (23) The mixed messages resulting from a series of government and CPS (see below) announcements apparently at odds with both the police and the text of the POCA can only create intolerable confusion.
At this point I would simply note that the vagaries of the word "indecent" mean that the entire terrain of COPINE levels 1-6 remain a legal no-man's land in an ongoing battle. While the star of censorship has undoubtedly been in the ascendant in recent years where images of children are concerned, it should be recalled that as recently as last year the Crown Prosecution Service, according to a report in The Independent, put forward the view that the images in the Saatchi Gallery's I Am A Camera exhibition were not indecent, even though they included COPINE level 6 material. (24) I refer not to the much-talked about image by Tierney Gearon of a six-year-old boy urinating outdoors into snow but another by Nan Goldin. This photo is described in The Sunday Times as being "of a naked child on the floor, with her legs splayed and the camera lens pointing up her private parts, staring up at the crotch of an older child who was partially clothed". (25) Admittedly, the waters of the CPS approval were muddied by a statement in which the Service reportedly said: "In reaching this decision, the CPS considered whether the photographs in question were indecent, and the likely defence of the gallery, i.e. whether they had a legitimate reason for showing them." The subtlety of this nuanced position appears to have gone unnoticed by The Independent and would surely not have been grasped by many ordinary people trying to "regulate their behaviour so as to stay within the law ".
In this atmosphere of uncertainty over the word "indecent", confusion has additionally been allowed to develop over what it means to "prevent the exploitation of children", which, as we have seen, is the declared purpose of the POCA. While no-one could seriously doubt that the stated aim of the Act is laudable, it has in practice provided cover for moralists within the law enforcement agencies to pursue their own agenda, which at times can oppress young people rather than protect them.
Superintendent Michael Hames, former head of the Obscene Publications Squad, provides an example in his autobiography The Dirty Squad. He described how in one case a young man aged 17 had "confessed" (Hames' own word) to having sex with an older man. At that time the youth had been below the age of consent for sex between males, but Hames' language shows he regarded the younger party as a moral offender rather than as a victim. The youngster was told he would not be prosecuted, but this was made conditional on him testifying against his older partner in the witness box. (26) In such a law enforcement atmosphere Hames would not have risen so high if his views were regarded as unusual one may be sure that children under 16 who protest that they enjoy being photographed nude run a severe risk of being treated as juvenile delinquents. Can this be regarded as preventing their exploitation? As protecting them? From the child's point of view it may seem more like a protection racket than real protection.
(3) Sentencing at the lower levels
So far I have confined my analysis to the manifest and seemingly unavoidable confusion that besets all the measures in which the term "indecent" is relied upon as a standard. These include the original version of the POCA, subsequent "child pornography" measures and section 42 of the Customs Consolidation Act 1876. As I have indicated, I believe that this confusion renders the Act incompatible with Article 7 of the European Convention on Human Rights, at least as regards COPINE levels 1-6 inclusive. The Justice guide to the HRA includes a section addressing the question "What if an Act of Parliament is in breach of the Human Rights Act?" Here it is stated: "Where a higher court tries to interpret a provision of legislation in a way that is compatible with Convention rights, but finds that it cannot, it may make a declaration of incompatibility, which states that the legislation is incompatible with Convention rights." (27)
No higher court in the UK has yet made such a declaration. The SAP referred in paragraph 27 of the Consultation Paper to an unsuccessful challenge in Smethurst under Articles 8 and 10 of the Convention, but it appears that no challenge has yet been made under Article 7. I note that Article 7 is an absolute right, unlike 8 and 10 which are both qualified rights. In my view, the courts could not properly be "robustly" dismissive of human rights arguments brought under Article 7, as reportedly occurred in Smethurst.
Accordingly, my suggestion is that the SAP should ask the Court of Appeal to consider making a declaration of incompatibility with regard to the POCA and all other legislation reliant on the word "indecent" as a test.
I further suggest that the SAP should make no recommendations with regard to sentencing at COPINE levels 1-6 inclusive beyond expressing the opinion that no sentence, not even an absolute discharge, can be considered appropriate in these cases. No such cases, in other words, should be brought, and if they are they should result in acquittals. Indeed I hope that the SAP will convey this opinion to the Crown Prosecution Service, so that the whole sorry business of these controversial prosecutions can be avoided.
B: Key issues at COPINE levels 7-10
(1) The importance of context
So far I have confined my analysis to the weakness of the "child pornography" legislation resulting from its reliance on the concept of indecency. This weakness in my view renders these measures useless when applied to offences at the lower end of the scale. It is a different matter at COPINE levels 7-10. In cases where the images depict overt sexual activity no-one could reasonably claim such images had not exceeded the threshold of decency, as commonly understood. They could not claim the law lacks sufficient clarity for them to "regulate their behaviour so as to stay within the law".
This does not, however, mean that all offences at this higher level should necessarily be regarded as serious. Some should. Some should not. The criteria for judging the seriousness of an offence at COPINE levels 7-10 should reflect the stated purpose of the legislation, which is the protection of children from exploitation. Accordingly, the most severe sentences should be reserved for those cases in which there is evidence that substantial exploitation has taken place and that this has harmed the child or children depicted. In this respect I have been inspired by the proposal made, as mentioned above, by Harriet Harman QC, the Solicitor General, in her earlier incarnation as a civil libertarian.
It will be objected that in many cases brought under the POCA little or no information is available as to the circumstances under which the images were created. Even if the accused is charged with taking, as opposed to distribution or possession, it may not be possible to interview or even identify the child or children in question. The presumption in these cases appears to be that exploitation, and harm to the child, can be inferred from the nature of the images.
This is a serious fallacy, the implications of which strike at the heart of the legislation. The key variable in whether a child is exploited and harmed by the creation of erotic images of them, and to what extent, is not the level of the sexual activity depicted but the cultural, sub-cultural and personal contexts in which those images are made.
(a) The cultural context
Let me illustrate this at the cultural level by reference to a point made by the SAP. In paragraph 38 of the Consultation Paper it is stated "Any image at the top end of the scale (from level 7 upwards) will, by its nature, record the commission of a criminal offence involving the sexual abuse of a child or children." Paragraph 28 even suggested such an offence would be necessarily be "serious". While it will generally be true that a crime at some level is disclosed in such photography it is not always so, and, more to the point, the relevance of the remark is limited.
Consider this: "Some years ago the Italians made a documentary film about the most impressive fertility rites of the African Kuru tribe. When it came time to sow the fields, the adolescent boys went naked to the hillside, where they dug little holes. After rubbing their penises to erection, the boys lay down, face to earth and, inserting their genitals into these holes, copulated with the earth and gave it their seed. The vision of all those graceful young bodies lying next to each other, buttocks moving up and down to make the soil fruitful, was strikingly beautiful and most solemn."
So wrote the lawyer Dr Edward Brongersma, who was for many years chairman of the Judiciary Committee of the Dutch Senate. (28) Not everyone will share the writer's opinion about the scene he depicts, but neither, I suggest, can it be rationally be established that his view is "wrong". Nor does the film of which he speaks depict either criminal behaviour in the Kuru tribe or exploitation of the boys depicted, even if they are all under 16. The cultural context is such that it makes little sense to judge the activity depicted in terms of UK law.
Orgies of group sex do not feature in the COPINE classification either, but bearing in mind what the acronym stands for one can well imagine that those who devised the scheme would regard the involvement of children in such events as most certainly a level 10 offence, a case of the utmost depravity. But even this cannot be considered a straightforward judgement.
As Brongersma reports, in many societies the orgy has performed a noble, self-sacrificial function, expressed in the fact that no partner is rejected: "the participant must accept the person who presents himself or herself, age or beauty being immaterial. One must abandon oneself unreservedly to old and young, the ugly as well as the handsome, to the silly and weak as well as to the brutal and macho". (29)
And in case it should be thought such practices may be all very well in a pagan society we should remind ourselves not only that Britain today is a multi-ethnic, multi-cultural country but that "Before the Christian Church organised itself into an official religion, the Agapes ("love feasts" of the faithful) were much like the pagan mysteries. There was music and dance. The women were naked at baptism, phallic cakes were distributed at Mass. Sexual promiscuity was not then considered debauchery: it was held to be symbolic of Christian unity." (30)
Citing the Austrian sexologist Borneman, Brongersma says "And so sex, elsewhere engaged in because of the pleasure it affords, becomes in this context a sacrifice. Rather than an act of taking, it is transformed into an act of giving. It is no longer the atomised egoistic copulation of two people withdrawing from the rest of humanity to enjoy their private pleasure: the aim is now to join with all. The aged and the young, the beautiful and the ugly, man and beast, father and daughter, mother and son, brother and sister, man and man, woman and woman, child and child they all join their bodies before the eyes of everyone. There is nothing secret, no shame, no guilt, because the act is sacrificial." (31)
These points briefly address the immense cultural variation in attitudes to sexuality across time and space, albeit without even touching upon the vexed issue of paedophilia. The cultural context can thus be seen to shape and colour the meaning of any particular sexual act in the most profound ways. Mere depiction of a particular act, at a particular COPINE level, tells us little or nothing as to whether the act involved exploitation or degradation, or whether child participants are distressed or harmed.
(b) The context of sub-cultures
It may further be objected that in the Britain of the 21st century it is fanciful to cite such exotic practices, although the Italian documentary film mentioned above could result in a POCA prosecution if a copy of it were found in the possession of someone suspected of being a paedophile, as opposed, say, to being kept in the BBC archives of anthropology. However, the cultural level is not the only significant one. We have our own distinctive "take" on sexuality at what I have called the sub-cultural and personal levels as well. For some purposes, such as its nationwide (largely) legal, political and media infrastructure, Britain may be considered as a single culture. But in many respects it is a country not just of many sub-cultures along ethnic and religious lines but also many different social groups in which attitudes towards lifestyle and sexual behaviour vary widely.
There are those, for instance, who practice naturism. This long-established sub-cultural group is characterised by a liberal attitude to public, social nudity, including that of children. Broadly speaking the naturist movement is now tolerated as benign after decades under suspicion, thanks to the unflagging respectability of its public relations effort and a genuine absence of scandal that must make the Church of England and the Catholic Church green with envy. We will also find, if we look hard enough, that many naturists have a very positive view of child sexuality. They do not share the view, advanced ever more insistently by the child abuse lobby in recent years, that sexual activity between children should be regarded with great suspicion and inspected minutely for evidence of abuse of a younger child by an older one.
What, then, if a naturist family is found in possession of photos or films featuring children spontaneously engaged in sexual activity at a naturist resort? Are the responsible grown-ups to be regarded as criminals on account (essentially) of their beliefs? Are the children to be considered as exploited when what has been recorded photographically may well have been a beautiful experience? Should not such a record count as a valid souvenir, a treasured part of the family album?
And then there is "the gay community", so-called, which actually comprises various communities each with its own complex sociology; there are even those who habitually engage in homosexual activities while also leading a family life and not identifying with "gay culture" at all. The gay world, like that of naturism, has by and large been keen to present a publicly acceptable face in at least one respect: whatever divergent views and feelings might hold sway in private, the gay movement has seen a long and largely successful campaign to put as much distance as possible between homosexuality and paedophilia. This strategy alone has been hugely important in enabling gay men and lesbians to win the considerable measure of toleration, and indeed real acceptance, that they now widely enjoy.
So much so that in recent years the movement has become more confident and less defensive. A major manifestation of this was to be seen in the fact that in 1999 Channel 4 television felt able to screen the ground-breaking series Queer As Folk, which clearly depicted a sexual relationship between a man and a 15-year-old boy. One lingering sequence, in plain view, showed the man licking the boy's bare bottom a POCA issue, some would think, were it not for the fact that the younger character was played by an actor aged a little over 16.
The significance of this is to be detected in the fact that gay viewers did not angrily reject the story-line presented. On the contrary, the confident, dashing, devil-may-care style of the older man's behaviour, which would undoubtedly be seen as predatory through homophobic eyes, was widely applauded as a refreshingly honest, if perhaps slightly larger than life, depiction of a well recognised character type in the gay world. Even more significant, it may be felt, was that few quarrelled with the way the boy was depicted. Far from being portrayed as an "innocent" victim, he was clearly seen to be bursting to bed the older man. The first sexual encounter between the pair powerfully disrupts any expectations the script will be one of predator and prey. It is the boy who climaxes first, in his virginal abandon. (32)
That this scene should have considerable resonance in the gay community and outside it renders absurd the idea that everyone is spellbound by the dominant discourse of childhood. That discourse, in which the child is seen as either "innocent" or "corrupted", has been increasingly hegemonic in recent decades but there have been significant points of resistance, especially among gay, or gay-influenced, writers in academia. As the jurist Amy Adler noted: "when it comes to the precarious subject of child sex, it seems dangerous to invoke Foucaulthe seems to go beyond any analysis of discursive power and to envision a free sexuality between adults and children." (33)
Sociological discourse in this country has likewise featured the work of figures such as Ken Plummer, (34) which can be read as sympathetic to both child sexuality and paedophilia, and Jeff Weeks, (35) who has promoted a vision of sexual diversity which is likewise not inimical to the possibility of cross-generational sexuality. Also, the new sociological paradigm of childhood of the last decade, in which children are being constructed as agents in the present, not just as "future adults", potentially presents an enormous challenge to the protectionist paradigm, in which children are seen not as agents, as subjects in their own right, but as passive objects of the attentions of others." (36)
(c) The personal context
The third level of context I identified in which "child pornography" might be generated, beyond the cultural and sub-cultural levels is the personal level, including the immediate family. We vary enormously as individuals in the level of our sexual libido, the ways in which we choose to express or repress it, our attitude to our lusts and loves and the age at which sexuality comes to be a conscious and important part of our lives. Our stance as individuals will inevitably be coloured by our family background.
Our sexuality is also a profoundly gendered phenomenon. Alfred Kinsey, whose reputation as the greatest sexologist of the 20th century has recently been reconfirmed after a period under attack, (37) found that many females do not begin to masturbate until their thirties or even later, unlike males, in whom the practice is all but universal by adolescence. (38) As for general variance, one fully-grown person may be a little taller than another, or maybe up to twice as tall. Sexually, though, one person may differ from another by a factor of hundreds, or even thousands. Kinsey pointed out that among males the average frequency of sexual outlet between adolescence and the age of thirty was three times per week. He found one male who had ejaculated only once in thirty years and another who had done so thirty times per week over a similar period nearly 50,000 times in all! (39)
Regarding children under 16, Kinsey's data and other sources point to boys' sexuality as in general more irrepressible than that of girls but in both sexes orgasm has been observed from infancy onwards. (40) While one should be hesitant of leaping from an "is" to an "ought" the fact that children often have strong sexual feelings does not necessarily mean they ought to be expressed the ways in which the criminal law is applied need to take account of this personal context. It is not helpful to the growing child to insist his or her sexual expression in front of a camera is a matter of exploitation, or victimisation, in circumstances where the child's own perspective may be very different.
(2) Public concern
Each of the three levels of context in which "child pornography" is produced cultural, sub-cultural and personal thus reveals different ways in which a one-size-fits-all policy of legal suppression is inappropriate. The 1978 law was an ill-conceived, populist measure passed in a hurry with little debate. It did not combat a substantial social peril. The same applies to its subsequent extension, including the "possession" law of 1988, which did little or nothing to reduce the exploitation of children. Panic over the advent of cyberporn, electoral rivalry between the major parties as to who could be toughest on crime, and meretriciously-motivated media campaigns have since then served to ratchet up the level of so-called "public concern" to a level not remotely justified by the issue and have led to the introduction of the present draconian sentences under the POCA earlier this year.
The activities of child abuse lobbyists, politicians and the media have together undoubtedly contributed to an atmosphere in which a considerable proportion of the public is panicked over "paedophilia" and "child pornography". The public perception of what these terms stand for is dictated almost entirely by relentlessly distorted propaganda, a stream of exaggerations, misrepresentations and outright lies so outrageous they might have made Goebbels blush. These tricks have been well documented and the readiness of public figures to mouth the most ridiculous drivel on the subject was brilliantly exposed by comedian Chris Morris in Channel 4's Brass Eye programme last year. (41)
The problem would be bad enough if confined to tabloid sensationalism and to football stars and radio DJs fronting crass campaigns demonising paedophilia. What is far more sinister is when, as is happening, even those who keep government informed senior public servants and the "quality" news media also play a dirty game. To give an example from the press, there is the saga of The Guardian's Nick Davies and "the Bjorn tape". Davies wrote an award-winning "exposé" series called "The most secret crime" that occupied seven full pages over four days in The Guardian. (42) Unfortunately, the fact that the series appeared in a newspaper of generally good reputation may have helped give it undeserved credibility. What the judges who gave Davies a major award must have failed to spot is one very telling discrepancy between "The most secret crime" and an earlier "Special investigation" in the same paper covering overlapping ground. This earlier article, co-authored by Nick Davies and published the previous year, had made much play on a pornographic video dubbed "the Bjorn Tape"; it was implied this was a "snuff" movie and that a young boy in it called Bjorn had been murdered. (43) Bjorn is featured again in the later, award-winning, series, but this time he is alive and well! Readers are told nothing of his miraculous revival! (44)
Yet in the full knowledge that he had got it wrong before, Davies uses further dark insinuations to prop up seven pages in which, effectively, anyone who finds children sexually attractive is made to appear a potential snuff movie maker. The technique is to start by describing a grave, horrible alleged offence. This is then depicted in lurid, loving detail with an immense amount of trickery rumour, innuendo, false generalisation, loose use of terminology, use of extremely dubious informants with an interest in telling lies, exaggeration, misuse of statistics in order to tar with the same brush people quite unconnected with the alleged crime in question. If such tricks were used against black people, Muslims, or Jews, instead of paedophiles, the writers would rightly be denounced as fascist bullies.
The readiness with which even honest journalists leap onto the shock-horror bandwagon is neatly illustrated by a 500-word story in The Independent (45) about babies being eaten on the Internet, replete with a quote from Detective Inspector Clive Driscoll saying "The pictures are awful. It is your worst nightmare unfolding in front of you. I took them to a very senior forensic pathologist a man I have a lot of faith in and he looked me in the eye and said 'These are the pictures I hoped I would never see'." What later emerged, though, was that the pictures on the Californian website in question showed, not human sacrifice, but the work of a Chinese performance artist who had been shocking audiences in the Far East with his images of cannibalism. Writer Jeremy Laurance, who had been responsible for the original story, bravely came clean about his error in a later article. (46)
As for the dirty game played by those in public service, it is generally a much more subtle affair, couched in the language of law and high principle but governed by the selective use of evidence. Doubtless there are many sincere public servants, "true believers" among those playing the game consciously and cynically. Either way, politicians are guaranteed to be served up with what will make an easy populist sell, rather than what is in the best interests of the children they ostensibly aim to protect. And well placed lobbyists are able to push their dubious theories as facts while hiding behind a camouflage of quasi-judicial objectivity.
A case in point is to be seen in the recent work of the review body on reforming the law of sex offences. The then Home Secretary Jack Straw, in his Foreword to the first report of the review, assured us that it had started from first principles, while Betty Moxon, chairing the review, claimed in her Introduction that "we have taken full account of the findings of research". (47)
Neither statement is true. First principles ought certainly to have addressed the positive role sexuality can play in the lives of all of us, including children. In this document, by contrast, the emphasis was almost entirely negative. Discussion at this basic level was pre-empted by offering as a supposed "basic principle" the unfounded assertion that "those who induce or encourage children or other vulnerable people to participate in, or be exposed to, sexual behaviour are criminally culpable". As for research, Volume 2 of the report Supporting Evidence, contains contributions of undoubted value regarding the state of the law in both practice and theory but, despite the title, ignores a substantial body of scientific evidence relating to children and sexuality. The result is that legalism and tendentious, unempirical, social theory are disastrously allowed to stand proxy for a properly informed fundamental review. (48)
(3) Scientific evidence
Crucially, the review took no account of scientific evidence relating to child-adult sexual contacts researched outside clinical and penal settings. The review body makes no reference for instance to the 1998 landmark paper by Rind, Tromovitch and Bauserman. (49)
Based on 59 studies of college students (with a total of 35,703 participants) showing the effects on those who had been involved as children in sexual encounters with adults, this meta-analysis provides an important corrective to the view that such encounters are always gravely traumatic. A careful statistical analysis showed that many problems which the original researchers had uncritically assumed to be caused by sexual abuse could more plausibly be attributed to generally inadequate family environments, with which they were much more strongly correlated. This study gives the lie to claims that sexual offending is uniquely damaging. Indeed it puts in grave doubt the conventional wisdom that child-adult sexual contacts are damaging at all unless the child is forced or bullied into them. That this is often not the case is conceded by leading anti-abuse figures. (50)
The fact that such findings are not more widely recognised and accepted owes much to constraints of political correctness on science that Galileo would recognise. Scientists have generally been obliged to cast their findings in language derived from rhetorical, non-scientific sources. As the distinguished Cambridge University criminologist D J West has noted, the use of terms such as "abuse", "perpetrator", "victim", and "survivor" has incorrectly reinforced the idea that any sexual incident with a child is likely to cause great and lasting harm. He noted further that this usage has "introduced a tone of moral revulsion alien to scientific inquiry". (51)
West also points out that there has always been tension between the findings of retrospective surveys of adult populations, which suggest a casual sexual encounter with an older person during childhood is too common an occurrence to be routinely and seriously damaging and, in contrast, the experience of clinicians that incidents of child sexual abuse provoke posttraumatic stress disorder, adult sexual maladjustment, and psychiatric illness. Where relationships have involved a willing child participant, however, there is scant evidence of such clinical problems except in cases where they can be attributed not to the sexual events themselves but rather to the reaction to their discovery when they are rendered "heavy" by the angry or intensely anxious response of parents and other responsible adults, and by unwarranted legal interventions..
Dr Richard Green, head of psychiatry at the Charing Cross Hospital, London and one of the world's leading experts on gender identity, has written: "research suggests that cases leading to official legal action rather than being dealt with informally produce more severe and lasting ill effects on children." He also cites a study by the Howard League for Penal Reform which said "The degree of lasting harm suffered by victims seems to flow predominantly not from the sexual nature of the experience, but rather from other sources of shock associated with it, notably the use of violence or intimidation or the abuse of parental powers. The subsequent intervention of parents, or other authorities, in order to bring the offender to justice often seems to aggravate the damage caused by the offence itself." (52)
(4) Other jurisdictions
With regard to the perceived level of harm attributable to "child pornography", it should further be noted that leading jurisdictions have by no means been unanimous. Unlike the Court of Appeal in Smethhurst, the Supreme Court of British Columbia decided that considerations of harm did not outweigh a defendant's right to privacy and freedom of expression in the case of Sharpe. (53)
An appeal by the prosecution to the Supreme Court of Canada was upheld but the right to the private possession of "child pornography" was established, albeit in narrowly defined circumstances, in accordance with the Canadian Charter of Rights and Freedoms. The judgement was all the more remarkable in view of the fact that neither the initial constitutional ruling by a single judge, nor the appeal to the provincial supreme court, nor the Supreme Court of Canada, heard expert testimony against the intrinsic harmfulness of "child pornography". The defendant's lawyers advised against going down that route. (54) Had they decided otherwise, in my view, Sharpe's case in the highest court of the land would have been found compelling.
An even clearer demonstration of the contested nature of "child pornography" is to be found in the Court of Appeal of New Zealand decision in Moonen v Film and Literature Board of Review in 1999. (55) Under its powers, this review board had judged as "objectionable" certain literature and photographs Gerald Moonen had attempted to import. The literature was described by the board as a book containing nine stories which described sexual activity between men and boys under the age of 16. With regard to the photographs, the board had said this:
This description suggests material at COPINE level 6. Nevertheless, under the New Zealand Bill of Rights the court found in favour of Moonen's right to possess both the book and the photographs.
(5) Sentencing at the higher levels
Having reviewed several sources of error which lead to "child pornography" being seen as inevitably exploitative and harmful, we are now better placed to consider sentencing at COPINE levels 7-10. I do not propose to argue for specific degrees of severity at any of these stages. In accordance with the principles outlined above I would simply reiterate that what is at issue is not the level of sexual activity but the proven levels of exploitation and harm, if any, to the children who are photographed. Bearing this principle in mind, there is no reason why sentencing should not be set at levels similar to what might be imposed in respect of the psychological or physical harm arising in other criminally culpable ways, such as from child neglect or cruelty.
In practice, one suspects, cases yielding such evidence are a rarity. Evidence of harm cannot reliably be inferred from any but the most extreme filmed evidence and hardly at all from still photography still less from computer generated images which can be "enhanced" to produce "pseudo-photographs". Such visual evidence would need to plainly show the use of force, which might include the threat to use a weapon or some other form of violence, or to show a child who is clearly in a state of distress. A state of mere undress, or sexual activity, would not be sufficient. And in many cases where direct evidence of harm is available from the testimony of the victim, or another source, it is both possible and preferable to lay charges of sexual offences against the photographer, rendering further charges under the "child pornography" laws arguably redundant. Even a photographer who has not himself engaged in, say, an indecent assault on the child in question, can be charged with aiding and abetting such an offence.
The findings of D J West and Richard Green, discussed above, have implications for the SAP. They imply that society's aim of avoiding harm to children is not well served by heavy-handed legal interventions which really means any cases other than those in which children have been unwillingly involved. While the decision to initiate cases lies outside the SAP's remit, the findings are also inconsistent with a sentencing policy which itself is heavy-handed in an undiscriminating way. There is a place for severity but it should be confined to those cases in which children have clearly been exploited. There may even be occasions when it will be appropriate to apply the recently introduced 10-year maximum sentence in the case, for instance, of someone who has been convicted of filming the rape of a child. Such a sentence would certainly not be justified in the event of what is known in some jurisdictions as "statutory rape". Indeed, because the unqualified word "rape" has suffered considerable linguistic inflation in recent years it would be necessary to ensure such a sentence were reserved for cases in which the sexual act had been accompanied by the use of serious violence.
What this analysis so far leaves unexamined is that unlike cases of neglect or assault, whether sexual or otherwise, the POCA and the 1988 "possession" law together set out a tier of offences from "taking", at the top level, down through "distribution", to "possession" at the lower end, in a descending order of culpability as the offence becomes progressively more remote from the original "exploitation". It would follow, however, from what I have said about the reasonableness of a requirement for evidence of harm, and from the fact that such harm can seldom be reliably inferred from inspecting a still photograph or moving images, that mere distribution or possession imply a much lower level of criminal responsibility than that borne by the photographer.
Bearing the above restrictive principles in mind, I would suggest that even where "taking" is concerned, the SAP should not normally consider custodial punishment for a first offence in respect of material at COPINE levels 7-10 in cases where there is no evidence of harm. In grey area cases of "taking", in which the child's willing participation in the photography is put in doubt by what is depicted but no other evidence is available, the custody barrier may be marginally crossed. Where distribution is concerned a conditional discharge would generally be appropriate. Whether such distribution is on a large scale or a small one, commercial or non-commercial, will usually be a relatively minor factor in the equation compared to the original event directly involving the child, as I shall argue in a later section. In the case of "grey area" material a fine or community service would be appropriate.
This leaves "possession" to be considered. Notwithstanding the "robust" judgement in Smethurst, this issue raises many questions and accordingly I propose to devote the following section to them. For the sake of completeness, however, I will now finish my survey of sentencing recommendations at the general level by baldly stating that defendants in cases in which the charge is solely one of possession should normally be given an absolute discharge.
C: Mission creep and the possession obsession
(1) The scope of the law
The aim of the POCA as set out in the first line of the Act is "to prevent the exploitation of children by making indecent photographs of them; and to penalise the distribution, showing and advertisement of such indecent photographs." The emphasis is mine. The words "of them" are important because they make clear that the intention of the Act is to protect children who may be photographed. This is the full extent of what parliament agreed.
Parliament did not pass a law aimed at preventing "indecent" or "pornographic" images falling into the hands of "paedophiles". It did not address its legislative endeavours to whether the so-called "cognitive distortions" of such people would be reinforced by the possession of such material, or whether such possession would inflame their lust such that they would be more likely to commit a sexual offence against a child. It did not take measures to prevent offenders from using material illegal under the POCA to show to children in the course of "grooming" them (In any case, researchers and law enforcers are aware that adult pornography is far more likely to be used in this way. Why, then, single out "child pornography" for criticism in this regard?)
Parliament could have done any of these things but the fact is it did not. For this reason alone they should be discarded as matters justifying the punishment of mere possession. The SAP, in this respect, has endorsed a measure of "mission creep". Paragraph 29 of the Consultation Paper states: "There is evidencethat active child abusers commonly use and are influenced by pornography. It is said that paedophiles use pornography in order to reinforce and justify their will to abuse." These may be thought valid issues of social concern. But they are not sentencing issues under the POCA or under the 1988 Act under which possession is forbidden. The latter measure was merely a short section in the Criminal Justice Act of that year. It is explicitly (in Clause 4) an extension of the POCA and implicitly linked to the aims of that Act with no additional aims stated. The government introduced this new measure "in an attempt to break paedophile groups" according to a report in The Times (1 March, 1988). However, if this really was the intention it should have been made clear in the statute. Instead this move, which makes severe inroads into the right to personal privacy, was introduced with little fanfare or debate as part of a much more wide-ranging Act.
The final sentence of paragraph 29 goes even further. "In some cases," it is said, "pornography is shown to children to encourage them to think of sexual activity as normal". This is curious indeed. If sexual activity is not normal one is hard put to explain the survival of the human race. This is not what is meant, of course, but if the SAP intended to say sexual activity is not normal for children, the Panel would be just as much in error.
Children have a capacity for sexual activity from earliest infancy. (56) Children masturbate at all ages, and when they are not discouraged from doing so will often engage in sexual activity with each other by nursery school age. (57) And surely no-one needs any persuading that by their early teens many youngsters engage in sexual intercourse, often in the teeth of adult disapproval. Society may decide it is undesirable for children under 16 to be sexually active, but that hardly equates with such activity being abnormal. The SAP would be going well beyond its proper remit, I suggest, if it tries to use the POCA as a means of censorship, to deny the facts of child sexuality and to impose a false ideology of childhood "innocence".
(2) Wild speculation
The SAP is on somewhat firmer ground when considering possession based on the reasoning in Wild, as mentioned in paragraph 28 of the Consultation Paper. Although users of "child pornography" are not directly responsible for "corrupting" children, it is said, they do have an indirect responsibility because, in the words of the Court of Appeal, "unless there were people willing to take into their possession images of this kind, they would not be created in the first place." The SAP's reasoning appears well founded in that it addresses the purpose of the legislation: to prevent the creation of exploitative images. The Court of Appeal's point is of only limited validity, though, based as it appears to be on a commercial model.
The first crusade over "child pornography" in 1977-8 was characterised by hyperbolic talk of a "multibillion dollar industry". (58) These early claims were later generally acknowledged to be wildly exaggerated, albeit only after legislation had been passed, first in the United States and then in this country. Research has found that during the pre-Internet era, the level of commercial activity involving "child pornography" was always tiny in relation to that derived from pornography featuring adult participants. (59) Unlike the latter, which typically involves paid participants working in professional studios, both the children and the adults featuring in "child pornography" have almost always been amateurs. As such, in many cases they would be engaged in sexual activities that would have taken place anyway, without the presence of a camera. The Court of Appeal's assertion that images would not be created in the absence of people to possess them loses much of its force in cases where the children had already been sexually active: they would have been "corrupted" irrespective of the photography.
What is more, the Internet is thought not to have altered the amateur, small-scale way in which "child pornography" typically makes its appearance. Major police operations against "international rings" using the Internet make for sensational headlines but my understanding based on published reports is that these are a comparative rarity when set against a multitude of individuals swapping "home made" images via Internet "news groups" and perhaps, latterly, private Web space. (60) Large-scale commercial activity would probably be viable only via public sites on the World Wide Web accessible by keyword search, with displays of product ranges and prices, such as are to be found in connection with mainstream pornography. Internet surveillance by law enforcement agencies and a multitude of organisations such as the Internet Watch Foundation, ensure that such open operations cannot possibly thrive for more than a very short time and those who would seek to make money in this way run a severe risk of being traced and suffering criminal penalties.
In a case solely of downloading 716 images, including some as high as COPINE level 8, the Scottish Court of Appeal in Kirk recently declared that this type of offence is victimless. (61) Lords McCluskey and Weir said in their judgement: " nothing [Kirk] did had any direct or consequent effect upon any other person, adult or child. In that sense at least, the appellants behaviour, consisting of operating his computer in his own home, was a victimless offence."
Their lordships also expressed a clear rationale for this view in an analysis which you may feel accords well with my argument above that those who merely possess "child pornography", including after downloading, by no means necessarily encourage the production of such material. Examining why it would be mistaken to see downloading as analogous with receiving stolen goods, which is correctly regarded as criminal because it directly encourages and facilitates theft, they said:
(3) The case for catharsis
This is not to deny that the total quantity of "child pornography" in circulation may well have risen immensely thanks to the Internet: it is after all among the most distinctive features of cyberspace that vast amounts of data can be accessed and copied around the globe with zero dependence on large-scale commercial distribution systems. This too has implications which, perhaps surprisingly, take the sting out of suggestions that mere possession generates child victims.
In order to understand this point we need to consider the relationship between the prevalence of possession and the level of sexual offences against children. Studies of such offences in this country are made complicated by the fact that data on criminal convictions in relation to such offences as indecent assault do not necessarily distinguish between those offences against adults and those against children. The British Crime Survey, which theoretically provides an alternative way of getting at relevant figures, has not in fact done so as yet because the volume of such crime is too small to make a viable statistical category in the context of overall crime a point which gives perspective to the hysteria whipped up by the tabloids over sex crimes against children. (62)
With regard to the United States, however, an interesting picture is emerging. In a recent study of "child sex abuse" cases in the US, David Finkelhor, the doyen of child abuse research, discovered that substantiated cases of such "abuse" decreased from a national estimated peak of 149,800 cases in 1992 to 103,600 cases in 1998, a decline of 31%. (63) Finkelhor examines possible reasons for the decline and says: "While the evidence demonstrates that a dramatic decline in reports and substantiated cases of child sexual abuse has occurred, the reasons for the decline are less clear. The available data suggest that this decline is not simply explained by trends in other types of maltreatment but is instead something particularly affecting child sexual abuse cases."
What Finkelhor has not apparently thought about (or does not wish to) is the fact that the very years he studied saw the Internet coming into widespread public use and that those with an interest in "child pornography" would certainly have been highly motivated to be among its early users. Those who claim that the "exponential" growth in the availability of "child pornography" on the Internet, beginning in these years, would inevitably lead to vastly more children being "abused" would thus appear to have a lot of explaining to do in the light of Finkelhor's findings.
While it is always dangerous to leap from correlation to causation, the dramatic negative correlation in this case between the CSA figures and the availability of Internet "child pornography" strongly suggests the possibility that many people who are sexually attracted to children have been using such pornography cathartically, as a substitute sexual outlet. Thus "child pornography" on the Internet may very well be helping to reduce sex crimes against children, a fact which would have huge implications for public policy towards it. As Justice
Duncan Shaw admitted in the Sharpe case, the contention that materials depicting sex with children actually prompt people to commit such acts was "only assumption." (64)
A sceptical reaction to the catharsis theory would be understandable if there were no further evidence of the negative correlation in question. But this is not the case. Kutchinsky provided powerful evidence of just such a relationship in Denmark. (65) "Child pornography" up to and including COPINE level 10 material was readily available in that country for a number of years, when the criminal law against pornography was repealed. Yet Kutchinsky's study disclosed a decline in sexual offences against children in the Copenhagen area during this period of easy availability in the late 1960s. Moreover, he said "Various factors suggest that the availability of pornography was the direct cause of this decrease." His findings were supported by another study of the same era relating to the then West Germany. (66) More recently the pattern was repeated in Japan in the 1970s, as reported by Diamond and Uchiyama; (67) Diamond also critically surveyed an international range of findings in this field; (68) nowhere did the data confound the catharsis thesis. Under international pressure a law against "child pornography" was introduced in Japan in 1999: the number of molestations rose by 25% in the same year. (69) Can all this just be coincidence?
Macro-level analyses in this connection, such as the study of crime statistics, have had many critics. But alternative approaches, notably laboratory studies, have failed to yield any convincing evidence of a positive connection between pornography and sex crimes, despite vast research endeavours. Adopting a different approach, Howitt studied paedophilic sex offenders in a clinical setting, focusing on their use of pornography, the nature of their sexual fantasies and how these were generated. Despite what may be felt a highly relevant and promising line in enquiry, he found "no evidence that early exposure to pornography was a cause of later offending". (70)
(4) The sovereign realm of fantasy
Surely, though, it may be felt, society would be failing its children and sending out entirely the wrong moral message were it to resile from the hard line now established against the possession of at least the most truly shocking material? Nudity, where the child had not been exploited, might pass muster, or even mild sexual activity between children if it appeared to be spontaneous. But surely the possession of hard-core, nasty material at COPINE level 10 should be marked in no uncertain manner by a tough custodial sentence?
Firstly, I would not agree that it is the task of the criminal law to send out a particular "moral message" or to suppress material kept in private merely because many people would find it "shocking" if they knew about it. Secondly, bearing in mind the weakness of the argument that possession begets production, I would suggest that the connection between simply possessing photographic material and any possible responsibility for exploitation depicted in that material, is too indirect and remote for criminal culpability. The SAP mentioned the drugs analogy in this context and I do think it has some force. (71)
Nor is the mere possession of COPINE level 10 material a good indicator of a sinister and dangerous mind-set. There are those who believe such possession indelibly marks the possessor as a paedophile and if the material is of a sado-masochistic nature as someone who represents a severe danger to children. The argument in such cases is not that possession should be penalised in order to discourage production, but that seizing the pornographic collection of a paedophile, leading to a court conviction, will "nip things in the bud" with regard to his own future behaviour. He will have a criminal record, he will be registered as a sex offender, the police will be able to keep an eye on him. He will be publicly shamed in the media, punished by the court and probably assigned to a sex offender treatment programme.
This is not just using a sledgehammer to crack a nut: the nut itself is an illusion. We have seen that "child pornography", far from being proven to be criminogenic, appears to play a cathartic role a feature which actually becomes more beneficial, not less, when it provides a substitute sexual satisfaction for a more highly anti-social desire (gratification achieved through inflicting pain or submission) than for something less unacceptable.
The case of Robin Sharpe provides a living example. Sharpe, a retired town planner, freely admitted his sado-masochistic inclinations in the British Columbia case already mentioned. Until the law intervened in relation to his possession of nude pictures of boys and S/M written material, Sharpe had led a blameless life. In all his many years it had never been suggested that he was a danger to children: pornography was his "safety valve", the means by which he could safely accommodate his socially unacceptable desires. Clearly, the courts in British Columbia were persuaded on this point. (72) Sharpe had been a respected, productive member of society. To sacrifice such people on the altar of public taste and misplaced apprehensions is itself a crime in my view. The most criminal error criminal, that is, when committed by those in authority who ought to know better is to confuse thoughts and fantasies with behaviour. There must be hardly a man in the land who has not at some time fantasised murdering his boss, or his wife or his screaming infant or surly adolescent son; nor, I am told, are women exempt from similarly unworthy thoughts. But doing the deed is quite another matter.
In this country, the pop singer Gary Glitter was pilloried for downloading, or "making" a large collection of "child pornography", some of which appears to have been at COPINE level 10. I would agree with the SAP that "making" is an offence at the same level as possession, so that is a technicality on which I need not dwell. Glitter, or Paul Gadd, to use the name under which he was charged, was a glamorous figure for many youngsters and had plenty of opportunity to spend time in their company. Yet it was not suggested in court that his apparent interest in sadistic fantasy had caused him to act out such fantasies in real life. On the contrary it was his private world, the world purely of his own thoughts that was engaged. The most sinister thing suggested about him was that he got a young girl to call him daddy and dress in a school uniform, in a case of underage sex in which he was found not guilty. And despite the dark innuendoes appearing in the media, there was no indication from his trial that children had actually suffered in front of the cameras in order to produce the images he amassed. Rather, what we had from the judge was a hint that violence depicted in one particular image, singled out by him as the most objectionable in Glitter's collection of 4,000, may have been staged rather than actually inflicted. (73)
Being sexually attracted to children, or even harbouring dark fantasies, about them, is irrelevant and misleading where sentencing under the POCA is concerned. Speculation as to defendants' thinking does not address the aims of the POCA with regard to the children photographed; nor does possession provide a reliable indicator that the possessor is a dangerous type who must be stopped in his tracks. As Pritchard has reported, (74) a record of violent behaviour combined with one of sexual assault together provide a much better actuarial tool in predicting what type of offender presents a serious danger to children.
D: Distribution and 'degradation'
(1) Harm by defamation
The mere existence of "child pornography" is for some people so ghastly they feel anyone involved with it must be guilty of a serious offence, not just by creating the images but also by doing anything to disseminate their contents or by possessing them. We have seen that possession, in my view and that of the Scottish Appeal Court, is in essence a victimless crime. What about "dissemination", as I have dubbed it? This could be one person merely showing a photo to another. It may not even be a conscious act. The offence could arise when police or Customs officers raid a house and find nothing more offensive than a single framed photo of a naked child hanging in pride of place in the lounge, if it could be proved someone had seen it. That someone could be the wife or husband of the photographer; or it could be a child of the couple, perhaps the same child as the one in the offending photo. It would almost certainly not have been on display, perhaps visible to passers by through the window, had the couple thought it indecent. But if the authorities took another view both of the parents could be in trouble one for taking the photo and possibly the other for framing and displaying it.
Such a scenario would not be the one uppermost in the minds of enthusiasts for the POCA but we nevertheless do well to remember that the offences of showing, distribution and advertising covered in section 1(1)(b), (c) and (d) of the POCA cover a broad range of activities not confined to the large-scale commercial publication of hard-core material and indeed seldom reaching this level.
Going back again to the aims of the POCA, I suggest the most relevant question to ask about the seriousness of any form of dissemination is whether or to what extent it exploits or harms the child depicted. It is not an issue of whether "childhood" in general is violated, or whether the allegedly pervasive spread of "child pornography" lowers the tone of society. As discussed earlier (see Note 71), the idea that the criminal law in our diverse and changing society should be used to enforce questionable moral ideals is these days seen as unrealistic and ill-founded. If any particular individual is confronted with material they find offensive they could raise it as a matter of "outraging public decency" under the common law, but that is not the issue here.
It is often suggested that children can be harmed by "degrading" images being put into circulation. Indeed it is hard to imagine how such images could ever be harmful if no-one were ever to see them, except perhaps that once an image is in existence a child might experience distress through a mistaken belief that others had seen it, or might fear this could happen in future, a fear which could in some circumstances be used as the basis for blackmail (though as a child grows up he or she may well be in a much stronger position to blackmail the photographer). Harm caused by actual circulation of the images, as these fears and forebodings imply, depends on by whom they are seen, in what context, and what attitude is brought to them.
The effect could be like that of a slander or a libel, especially if the child had been old enough to be judged complicit in the production of the pictures: they could have a defamatory effect, lowering a person's reputation in ways that could dog them into adulthood. The worst such effects would be those experienced by the child in his or her own social circle, perhaps starting at school, and perhaps later on influencing the child's educational, employment, or even marital prospects, especially within a small, tightly-knit community in which everyone knows everyone else.
One such case arose back in 1978, the first year of the POCA, although that Act played no part in the proceedings. An ex-teacher, John Saunders, was given a prison sentence of 10 years for indecent assault against a number of boys, some of whom had apparently been willing participants in the "assaults". He had also taken photos of them that had been used in soft-porn (COPINE level 5) magazines, which is how matters came to light after a Daily Mirror investigation. (75) The youngsters, who were all from deprived backgrounds at least one was the son of a prostitute liked Saunders and came back time and time again to be "abused". They were also keen entrepreneurs regarding the photography. They had never had much pocket money before and welcomed the fact that Saunders was selling the photos and giving them all the profits. (76)
One boy, photos of whom filled an entire magazine called A Day in the Life of Chuck, was proud of the production. His reaction on seeing it was delight, saying "How many kids have had a whole book about them?" While some will doubtless see this as a sad reflection on his upbringing and the "corrupting" effect Saunders had on him, the boys themselves saw no harm in the pictures and certainly did not feel exploited by a grown-up who was giving them a sense of pride in their bodies. The fact that other people would want to look at them and find them sexy was a source of joy to them, not shame.
It will surprise no-one to hear it all ended in tears for "Chuck". But not because of anything his grown-up friend or any other paedophiles did with the pictures. No, his distress was owed entirely to the blind stupidity or indifference of the media. Photos from the magazine were shown on television with the "naughty bits" obscured but the boy's face clearly recognisable. The next day the child discovered to his cost that not everyone at school shared his own positive view of the magazine. What had been a matter of pride was turned into one of shame as he found himself taunted and reviled.
The documentary TV footage had apparently been produced in co-operation with the police, which makes one question their role in the affair. The boy's identity had already been known to the police, having been discovered earlier by the Daily Mirror. There could be no "legitimate reason" for handing any photos or magazines to the media with a view to an appeal to the public for help in tracing a child. Such a reason would in any case only be valid if the child's life appeared to be in danger. Going public as was done in "Chuck's" case did not save a victim, it created one.
It may be felt Chuck was too long ago to be relevant. Since then the police, if not the media, have shown signs of getting their act together on sensitivity to victims' needs. I note, however, that even now an organisation apparently respected by the SAP namely COPINE has an active "Victim Identification Project" which is studying "transnational data" in connection with "both victim identification and subsequent intervention and support". (77) One hopes the "intervention and support" envisaged will not be used within this jurisdiction to provide "help" in ways children would be better off without.
(2) The influence of context
Bearing in mind that transatlantic influence in these matters tends to be strong, I would particularly hope the SAP will not wish to underwrite techniques used by the FBI and agents of the US Postal Service, in which "child pornography" is routinely used as bait in magazine and Internet inducements, enticing people through "sting" operations to obtain illicit material. Those who might never otherwise have committed a crime can be "entrapped" in this way, an issue particularly relevant to the SAP's deliberations in paragraph 46 on the defendant's character, a topic to which I will return below. While British police do not appear to have undertaken such tactics themselves, they have been co-operating with them in international operations directed from the US. (78) Also, one is driven to ask, if disseminating "child pornography" is in itself an abuse of the children depicted, should law enforcement agencies really be engaged in it?
The truth is, I suggest, that the degree to which children are "exploited" and "degraded" by the dissemination of "indecent" images of them is highly dependent on context, just as is taking such pictures. To the boys in the Saunders case it was really no big deal until the heavy-handed intervention of the authorities made it so. The same can be expected to apply to many, many cases in which children are willingly involved in the production of the images. One can imagine children within naturist culture being perfectly happy that their bodies will be seen by others. And the likely viewers must be considered too. It is not paedophiles, erotically aroused by seeing pictures downloaded from the Internet, who are going to give children cause to feel ashamed and degraded. They are not the ones likely to bring shame on their heads by telling their parents and school friends and doing a town-crier job about it through the media: that is more likely to be a police "achievement".
It is also true, to be sure, that people change their minds. Photos have a degree of permanence. A child who was happy to be photographed may become an adult with other ideas, coming to despise the photographer and those who might see the photos. Such people may genuinely come to feel exploited, abused and sullied by the experience. Unfortunately, our society seems bent on encouraging this negativity through lobby group and media coverage persuading people they have been damaged for life through sexual abuse, when the idea might otherwise never have occurred to them. In such cases the idea may represent the whole of the reality: without it, there would be no symptoms, no problem.
(3) A positive plan to reduce harm
Society's seemingly endless appetite for victims to be paraded and sympathised with, will not make paedophilia or "child pornography" go away; they will merely ensure a continuing supply of those who disastrously and quite unnecessarily come to see themselves as victims.
This is not to say that individuals who feel they have been exploited should not be heard out. As already indicated, I would be content while the POCA remains on the statute book for prison sentences to be imposed on photographers in cases where harm to the child can be proved. Such harm would in most cases probably relate to unwilling involvement in the photography or any associated sexual offences and the primary responsibility would be borne by the photographer, as mere disseminators could not be expected to be aware of such unwillingness unless it was obvious from the images themselves. But disseminators would be aware that any child photographed could change their minds later, and arguably they should share some responsibility for this. As with the "grey area" offence of which I spoke, I feel a fine or community service would be appropriate in cases where evidence of harm is upheld.
As a society, though, we should be thinking not just of picking up the pieces when a child has been harmed. We should be actively working to avoid such harm. I would accordingly ask the SAP to include as part of its report a recommendation that not all "child pornography" should be prosecuted, even at COPINE level 10, if it is produced under supervised conditions. Such conditions could ensure that children are willingly involved with the approval of their parents or guardians. In the context of a strong basis of family acceptance and government approval, it is highly unlikely that any children would grow up to regret their participation. This could be achieved within the POCA as it stands thanks to the provision in the Act that prosecutions can only proceed with the authority of the DPP.
This is an idea both Professor Larry Constantine and I separately committed to print over twenty years ago, not long after the POCA was introduced. It was not taken up then and in today's political climate I can hardly expect the SAP's enthusiasm for it to be boundless. Nevertheless, I still believe the plan has potential. This is the most relevant part of what I wrote: (79)
Why not have Government-sponsored erotica, produced and distributed at rates which would undercut illicit [commercial] material? Via the Arts Council, say, it would be possible to create bursaries for artists working in the field of erotica, including child erotica, thus encouraging the emergence of really first-rate non-commercial material. (81) The National Secular Society (82) has in this regard made the sensible, and perfectly feasible, suggestion that child labour laws could be invoked, like those that prevent the exploitation of child labour in factories and other places of employment. In a monitored, and legitimate erotica industry, it would be possible to enforce a minimum wage, and children capable of acting, as well as of an elementary erotic response, might become valued stars in a whole new genre of film
E: COPINE and "the paedophilic gaze"
(1) A flawed understanding of "severity"
In the course of the above analysis I have made many references to the COPINE typology set out at paragraph 37 of the Consultation Paper. Clearly, I have found it useful. But it is also very misleading and indicative of a dangerously flawed way of thinking about "indecent" images. It is admitted to be "a descriptive analysis of the range of images collected by paedophiles". As we have seen, this is not the issue where the POCA is concerned.
A more useful and relevant list would be the range of possibilities of exploitation and harm to children, not the degree of indecency of the images. While I agree with COPINE that "sadistic" images are particularly suspect and are correctly at the top end of the scale because of the possibility that real pain and distress may have been suffered in their making, the rest of the COPINE typology is skewed in ways which see the level of sexuality as the issue rather than the degree of distress or harm caused by the involvement of children (especially those participating unwillingly).
It is a fundamental mistake to equate greater erotic content in an image with greater harm to a child, a mistake which the COPINE classification makes abundantly. Many studies of "child sexual abuse" have been based on this incorrect presumption, in which the term "severity" of abuse is often used, with mere "indecent assault" (COPINE level 8) ranking below penetration (COPINE level 9) in terms of "severity".
This ranking may well be valid with regard to forced or unwelcome sexual acts but the picture changes completely when the element of coercion is missing. The Rind team demonstrated that children are not necessarily harmed at all by sexual intimacy at the most "severe" levels. (83) On the contrary, in the context of an affectionate relationship such intimacy can be the highest expression of joy, whereas an unwelcome intrusion at a much less "severe" level, such as an indecent exposure, might well be traumatic. Even the strongly anti-abuse figure Finkelhor found himself obliged to face the facts in this regard. (84)
Likewise to categorise "bestiality" as necessarily at the top end of the scale does not bear rational scrutiny. The moral philosopher Peter Singer has recently questioned the ethical basis for the taboo against sex with animals and pretty much concluded that there isn't one. (85) Forcing children to perform sexually with animals might reasonably be seen as a worse offence than forcing them to have sex with humans because they might well feel more degraded by it a feature arising from the taboo itself, not from anything intrinsic to the act. But here too the situation is utterly different when force and coercion are not involved. As Kinsey discovered, (86) sex with animals is spontaneously practised more by children than by adults!
(2) "The mind of the paedophile"
The term "legitimate setting" from COPINE level 2 is based on an unsustainable concept which appears to have been imported from the United States, where its shaky foundations have been thoroughly exposed. One would think, for instance, that a beach could be regarded as quintessentially a "legitimate setting" in which to photograph naked children playing in the sand, if what is meant by a legitimate setting is a place and social context in which it is acceptable for them to run around naked. But no, not according to the US government. In a recent case, the government argued, albeit unsuccessfully, that the setting of photographs of children on a beach was sexually suggestive because "many honeymoons are planned around beach locations." (87)
The absurdity of this assertion may at first sight be thought to illustrate little more than the crassness of the lawyer who made it. But it also demonstrates the lengths to which the prosecution will go in order to win, when they are allowed get their creative juices flowing on a notion as rich in imaginative possibilities as "legitimate setting".
This raises the question as to how "legitimate setting" ever became an issue in such cases. In the US it was in the context of a "child pornography" law anchored not in the concept of "indecent" photographs but in the prohibition against using a child in a "sexual performance," meaning "any play, motion picture, photograph, or dance" which included "sexual conduct." Sexual conduct was in turn defined to mean "intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." The federal 1984 Child Protection Act adopted most of this definition from the earlier landmark case of Ferber but changed the word "lewd" to "lascivious." (88)
Lasciviousness in the US, like indecency here in the UK, is an exceedingly vague standard, open to multiple interpretations. Lawyers there have made great rhetorical play with this vagueness. Rather than leaving those adjudicating to make up their own minds as to whether contentious photos amount to a lascivious display, using their own understanding of the word lascivious, prosecuting lawyers have successfully argued that these adjudicators must get inside "the mind of the paedophile" in making their judgement.
Amy Adler has analysed the profound effects of this approach, (89) an impact she sees as disturbing. Here she describes this mind-reading exercise and hints at where it is taking society:
It is also a logic utterly at odds with the intuitive idea of a "legitimate setting" that I advanced above and one which begs the question as to what sort of setting might be considered legitimate, and why. While I know of little evidence so far that this kind of thinking has been advanced in the UK, it easily could be. Just as courts in America are being invited to ponder what might be lascivious to a paedophile, so juries and justices here could be invited to regard anything as indecent if it might appeal to a paedophile.
Such an approach ought in theory to fall foul of the Stamford test, which has been approved for use in POCA cases, as this test says indecent material must offend against "the recognised standards of propriety" (my emphasis). According to a direction to a jury approved by the Court of Appeal in Graham-Kerr, the standard would be one "which ordinary right-thinking members of the public would set". (90) Such a standard would presumably be considered very different from one derived through contemplating what a paedophile might think. Or it would if the test were to be scrutinised, but one can well imagine cases in which the defence may fail to subject the test to proper scrutiny in the face of arguments based on probing "the mind of the paedophile".
The use by COPINE of the phrase "legitimate setting" seems to be a straw in the wind, a hint from our western shores that a dubious element in American legal thinking could be about to insinuate itself here unless checked. I would ask the SAP to notice the similarity between the COPINE classification and the American Dost test. Adler describes this:
While the six-point Dost test and the ten-point COPINE perform different tasks, the former attempting to define a threshold of criminality, the latter to distinguish degrees of "seriousness" within "the range of images of children collected by paedophiles", they are very similar in what they are attempting to address.
Neither the Dost nor the COPINE exercise are concerned primarily with measuring exploitation or harm; nor do they deploy "recognised standards of propriety". Instead they each suggest the need to scrutinise images minutely for supposed evidence of paedophilic appeal. With regard to COPINE, the issue of "legitimate setting" has already been raised; other hints along similar lines are to be found in the search for "erotica" and "surreptitious" material (level 3), "deliberate posing suggesting sexual content" (level 4) and "provocative poses" (level 5).
(3) Everything becomes pornographic
Significantly, all six points on the Dost list concern themselves with marginally indecent material. It is at this level that the most careful scrutiny is required in order to tease out paedophilic content. Likewise the COPINE typology devotes no fewer than six out of its ten classes to material at the margin, below the level of explicit sexual activity.
Adler points out the ominous implications of this scrutiny:
The court then analyses whether such a photograph is lascivious in particular whether the girl expresses a sexual "willingness." The court concludes that the girl does seem sexually inviting. Why? Although "nothing else" about the child's attitude conveys this, the court nonetheless concludes that the girl's "open legs do imply such a willingness [to engage in sexual activity]."
What does it do to children to protect them by looking at them as a paedophile would, to linger over depictions of their genitals? And what does it do to us as adults to ask these questions when we look at pictures of children? As we expand our gaze and bend it to the will of child pornography law, we transform the world into a pornographic place. Our vision changes the object that we see. Child pornography law constitutes children as a category that is inextricable from sex. The process by which we root out child pornography is part of the reason that we can never fully eliminate it; the circularity of the solution exacerbates the circularity of the problem. Child pornography law has a self-generating quality. As everything becomes child pornography in the eyes of the law clothed children, coy children, children in settings where children are found perhaps everything really does become pornographic. (92)
Adler goes on to demonstrate that far from seeing the elimination or reduction of "child pornography", the decades in which the laws against it have been created, and ever more vigorously enforced have seen it become all-pervasive in the public mind. American public discourse far removed from the courtroom now obsesses over "child pornography" in advertising and the media. Among examples she cites is that of a Calvin Klein advertising campaign in February 1999 for children's underwear. (93) The centrepiece of the campaign was a black-and-white photograph of two boys about age four or five jumping on a sofa in their underwear. The company said the ad showed "children, smiling, laughing and just being themselves."
This advertisement was met with a storm of criticism over Klein's "child pornography". Yet a curator at the International Centre for Photography described the picture as a "very ordinary image". It was similar to a family snapshot but with "a sense of nostalgia and classicism."
What made this "ordinary image" become "pornographic", asks Adler, who points out that the same critic who recognised that a "mom" could have taken the photo by accident pointed to the following evidence to show that the picture was not an accident at all, that it was "child pornography": "If the outline of the little boys' genitals can be seen in a photograph taken by a professional photographer, that's not an accident," he said. Adler comments:
In the light of this comment, one has to wonder whether the material distinguished by COPINE as "indicative" (level 1) also relates to "very ordinary" pictures. It would seem "indicative" means the lowest level at which "paedophilic content" is indicated. Thus indicative (bad) would be level 1, comparative (worse) levels 2-9 and superlative (worst) being level 10. This would appear to rule out acceptable material such as passport photos at level 1. Or would it? How could anyone be sure such a picture would not stimulate a paedophile? Anything can be interpreted as pornographic when an attempt is made to view it through the eyes of the demonised Other.
I do not share Amy Adler's angst over the law leading to the growing sexualisation of the child. Children are already sexual and we would do well to face it squarely. But I do commend to the SAP her view that the law is being allowed unwisely to depart from its original purpose of preventing children from being harmed.
F: The Sex Offenders' Register
The SAP makes a good point at paragraph 15, where it is stated: "There is clearly an anomaly where sex offenders who are cautioned are required to register under the [Sex Offenders] Act but offenders who are convicted but discharged are not".
I believe neither category should be required to register. Indeed the register itself appears to be in breach of human rights, chiefly because it is a punishment which for some will be felt as a very severe punishment masquerading as a mere administrative measure. It is a punishment over and above what the court has already determined to be the proper one in any particular case, and is accordingly unjust and oppressive.
Theoretically, the register is a measure aimed at increasing public safety, by identifying those in a community who might re-offend. One might therefore reasonably expect the length of the required registration period to be determined by an assessment of the length of time the offender is expected to be at risk of re-offending. In fact no such assessment is made. The defendant is simply required to register for a time determined by the length of his sentence a period which takes no account of the person's age and circumstances or his likelihood of re-offending.
These flaws are perhaps of less significance at the top end of the scale of offences. To the offender who has served a five- or ten-year prison sentence, the registration requirement may not loom large as an issue. But to someone who has unwittingly fallen foul of the law's uncertainties at the lower end, registration may well be felt a far worse punishment than a caution or either an absolute or a conditional discharge. It may also be worse than a fine, a community service order or even a short prison sentence. It is absurd and utterly wrong that an offender perhaps a bona fide artist or a "normal" parent should be considered a "sex offender" at all. To brand them thus, alongside rapists and exhibitionists, either by virtue of a conviction under the POCA or by a requirement to register, prolongs the injustice and puts it more inescapably into the public arena.
We have seen the pressure exerted by the News of the World with regard to the names on this register. (95) Even if this notorious paper's "naming and shaming" campaign is not repeated, the vilification and mob violence heaped upon its unfortunate victims will live long in the memory. Anyone forced to go on the register will inevitably be put in fear of public humiliation and intimidation which are not only crude, arbitrary forms of punishment, but also wildly disproportionate to the original offence. Defendants in minor criminal cases in this country (though not in parts of continental Europe) have of course traditionally been exposed to extra-judicial punishment via the news media but at least contemporaneous reports give some idea of the minor nature of lesser offences. This moderating factor is entirely lost when a lower-end POCA offender is later disclosed as a "sex offender".
It is noteworthy that the Home Office report of the review of the Sex Offenders Act 1997 itself discloses three grounds for challenges to the register in respect of breaches of human rights. While such challenges have so far been resisted successfully, the report notes that "Were the registration requirement to become more onerous, there could come a point at which the Act could no longer be seen as an administrative requirement." (96) I believe that point has been already exceeded by a long way with regard to its application in respect of lesser offences under the "child pornography" laws.
The Sex Offenders Act was rushed into law at the end of the last Conservative administration, nodded through along with many other bills just before parliament was prorogued ahead of the general election. It was never subjected to full scrutiny in the upper house, where the unease of leading legal figures could have been expressed. As the register is, I believe, wrong in principle, I would suggest the SAP should recommend removing the requirement for registration entirely in relation to "child pornography" offences, including importing indecent material. At the very least there should be no requirement to register for offences below COPINE level 7, and only then if the offence involved harmful exploitation meriting a prison sentence. Likewise, I see no basis for disqualification from working with children following a "child pornography" conviction, unless the case involved harmful exploitation, as discussed earlier.
G: The defendant's character
(1) Logic turned on its head
This comment by the SAP, in paragraph 46, is of great interest: "the Panel questions whether the defendant's good character is relevant. In particular, the Panel believes there are some circumstances in which the commission of such an offence by a defendant of good standing within the community may be regarded as aggravating rather than mitigating the seriousness of the offence."
I would be interested to know what circumstances the Panel has in mind. The phrase "such an offence" fails to give any clues as it appears to be referring to any "child pornography" offence within its remit. Even more interesting would be some inkling from the SAP as to the sentencing principles at work in their thinking. I see from the Panel's website that its membership is not short of either leading academic sentencing specialists or judges. This particular layman is entirely innocent of their specialist arts but cannot help feeling some rather remarkable departure from orthodox sentencing theory must have been brought to bear on this particular point.
Usually credit is given for a defendant's previous good character for what I would have thought are the most obvious of reasons. The most elementary intuitions of basic justice demand that society should take least retribution against those who have offended it least, in the past (to which previous good character relates) as in the present (to which sentencing in the present relates in all respects except the consideration of previous good character).
To overturn this principle would not only be unjust to the defendant but would create problems for society by taking away the incentive to keep a clean record. Suppose a man with an unblemished background is freed on bail pending a Crown Court hearing in a contested POCA case some months ahead. He fears losing the case and knows his good record might be held against him. Would it not be logical for him to go and do a bit of shoplifting and deliberately get himself caught? With a bit of luck he could get himself dealt with quickly by pleading guilty at the magistrates' court, thereby suitably blotting his copy book. This is of course a reductio ad absurdum. It is most unlikely to happen. Nevertheless, I believe the example illustrates that departing from the usual demands of sentencing logic is to invite strange and undesirable consequences.
I can only guess that the Panel were thinking not so much of a defendant with merely "good" standing in the community as ones with "high" standing. Perhaps the person they have in mind is not so much, say, a retired packer or lorry driver who has lived a life of blameless obscurity, but a figure who has been well known and highly regarded perhaps a professional football player or a TV presenter. The Panel referred to "exemplary citizens", so they may well also be thinking of vicars or teachers: people who are widely known in their community and regarded as among those who have a special duty to set a good example. If these people offend, it may be argued, a very clear message should be sent out that they have failed in their duty and that it will not be tolerated. It would not be good, so this thinking might run, to give the impression through leniency that the offence was a minor one, an impression that could easily take hold because cases featuring "role model" figures are sure to attract far more publicity than many others.
Using the criminal law to penalise such people as vicars or teachers selectively, for falling short of their professional standards, seems wrong in principle. Failing to be a good role model can hardly in itself be a matter for criminal sanctions. It could perhaps be argued persuasively, though, that the need to send out "the right message" to the community regarding the seriousness of an offence ought to take precedence over the fine-tuning of justice to any particular defendant.
But such reasoning, had the SAP expressed it, would to my mind hint at a certain resistance from within the community from "right-thinking" people, not just potential offenders to seeing things as the Panel apparently does. When a previously well regarded person gets into trouble over "child pornography", or even over a substantive case of "child sexual abuse", the reaction among those who know him (or perhaps her) is by no means necessarily one of universal condemnation. People who might shake their heads in dismay over their Daily Telegraph or Daily Mail when reading about an "international child porn ring" or a pop singer busted for bedding teenaged boys decades ago, are apt to see things in a different light when things are closer to home. They are less easily influenced by the lies, distortions and deliberate character assassination that routinely pass for "fair and balanced" (as is in theory required by law) court reporting. They are in a far better position to see when a good man is being given a raw deal by the courts and the media.
The Saunders case of which I spoke earlier is a good example. This was a man, it will be recalled, who was given a ten-year sentence for "indecent assault" involving a number of boys. It was not his first offence and I do not know how his former colleagues in the teaching profession reacted to it. But I do know about their reaction, and that of others responsible for children, as parents and youth workers, following an earlier conviction of his, also for indecent assault. I have in my possession copies of numerous glowing testimonials. A doctor, who had known him for twenty years, recommended he should be allowed back into teaching. A superintendent of Barnado's wrote "Mr Saunders shows a great understanding of the difficulties and needs of disturbed children He has the ability to form relationships with the most difficult of children which he always uses to great advantage" a comment clearly not intended as ironic. Parents and a headmaster also contribute fulsome praise.
A Miss J Sanders, local government officer, wrote the following after an account of his case had appeared in the local paper: "May I say, for what it is worth to you, that I and many others feel that Mr Saunders is absolutely wasted outside teaching. My own work brings me daily into contact with many teachers, rarely as dedicated as this man I and the local people here have great admiration for his voluntary workI have been with Mr Saunders on many occasions when he has organised and run dances, parties and fetes for the elderly, also mentally and physically handicapped. I can only say all concerned in these activities, including parents and children, have only the most respect for him. In all honesty any child of mine, should I be placed in a position to choose, I would not hesitate to have them placed in Mr Saunders' care, whether for education or leisure activities. He remains a very highly respected member of the community"
(2) Caution needed over "Caution Plus"
A recent development in handling "child pornography" cases reveals the shakiness of the doctrinal ground on which the SAP is standing in respect of a defendant's good character. This is an initiative by the West Midlands Police in which the authorities admit they are targeting "respectable" law-abiding people with no record of sexual assault. Superficially, its effect may seem liberal because the idea is to caution people caught in possession of "child pornography" who would otherwise face a court appearance. However, a condition of being supposedly let off lightly with a caution is that offenders are put on the Sex Offender Register and are obliged to undergo therapy aimed at making them think possessing "child pornography" is at the top end of a slippery slope towards assaulting minors. But, as we have seen above from a number of studies, there is strong evidence to suggest that such pornography is more likely to prevent crime than to cause it.
The scheme, called Caution Plus, certainly makes it easy for the police to deal with defendants who might otherwise have chosen to plead not guilty in court, especially in cases where the material seized was not of a hard-core or definitely pornographic nature. The publicly-expressed rationale for Caution Plus, though, is the "slippery slope" argument. As Detective Inspector Cath Hannon, head of the paedophile and pornography unit at West Midlands Police put it: "We identify people who are developing this [sexual] interest in children and divert them into treatment programmes, which challenge their behaviour and make them understand that it's an activity that could potentially develop into them abusing children." (98)
A misconception appears to be built into this rationale, as revealed by the expression "people who are developing this interest". It looks very much from this as though Hannon believes that sexual attraction to children is something people "develop" voluntarily in adulthood, rather as they might decide to take up fishing or ten-pin bowling. This theory is not supported by the available evidence, which strongly suggests that an adult's sexual orientation is in the vast majority of cases (including those of paedophiles) determined by the age of about six. (99) Further specifying whom the police are targeting, Hannon said: "This is Mr Respectable in every other aspect of their life. Apart from that, they have this deviant thought process which if not checked at an early stage could develop into the sex abuse of children." Again, implicit in what she says is the notion that adults, perhaps as late as middle age or even beyond, may be in the early stages of a "deviant thought process" that can possibly be nipped in the bud.
Presumably, it is felt that exposure to "child pornography" is what sets these adults off on a "deviant thought process". Certainly David Middleton, working on Caution Plus with the probation service, appeared to be thinking along these lines when he said " most of the men we work with who have abused children have started with pornography." (100) But what gives people an interest in setting out on the difficult and dangerous search for "child pornography" in the first place? Why would anyone be tempted to wreck his life by being caught and disgraced unless a very powerful interest were already well established? There are factors at work in the aetiology of paedophilia that long predate puberty; particular regimes of hormonal exposure in the womb have been implicated in the literature and genetic considerations may also be important. (101)
Taking this deep, long-lasting sexual interest in children into account, let us ask again what purpose is served by invading the privacy of people who have managed to conduct their lives "respectably", not assaulting children but on the contrary showing every sign of having made a sensible accommodation with their desires. Having shown themselves capable of living stable, productive lives, sometimes including being good parents, they suddenly face a knock on the door that is bound to be hugely traumatic for them and their families: the role of the police here is essentially one of destabilisation. If a father faces divorce, for instance, when his wife finds out about his secret as a result of police intervention, how is this likely to affect his subsequent behaviour? Having lost his wife and (doubtless) family, and with nothing more to lose in terms of his life as a respectable family man, is he likely to behave with more caution towards children in future or less?
Middleton's point may appear to invalidate what I say, when he refers to abusers whom he believes "started with pornography", but it looks to me as though a certain naivety is at work here: offenders will of course say that pornography set them on the downward path if they think this will provide the excuse a probation officer wants to hear, just as allegedly being sexually assaulted as a child is now being used by criminals of every ilk to explain their behaviour, however improbably. We also need to note that the offenders he is referring to may well consist entirely of impulsive, generally criminal individuals quite unlike the "respectable" figures targeted in Caution Plus.
H: Taking a stand
It will not have escaped the Panel's attention that my contribution has been forthright in its opposition not just to particular points of its recommendations but to some of the main tenets informing its approach. As such, I may have appeared perhaps lacking in respect for a body comprising many figures of considerable eminence and relevant expertise. At the same time I hope my high regard for evidence and scholarship will also be apparent. I certainly respect the immense legal knowledge and keen skills within the Panel. Whether I will be able to respect the ways in which those talents are deployed remains to be seen.
I have to hope so. This text will in any case be read by others, in the academic world, on the Internet and in the media. There is a constituency of unease "out there" waiting to be addressed. The text will join a growing body of work, an alternative discourse probing the shaky foundations of the current order.
I would invite the Panel to cast their minds back to the Soviet Union of the Brezhnev years, bureaucratically sclerotic and ideologically ossified. The Soviet Union of those days may have been no great example to the world but it had its judges and its professors and its worthy figures serving on important public bodies people performing a social function comparable to that of the SAP. Most of them probably believed in the virtues of Soviet communism. Or if they didn't, they knew where their bread was buttered. It was just such people who developed the idea that dissidents must be mentally ill. (102) Why else would anyone wish to oppose the ideal society towards which Marxist-Leninism was daily making progress? Why else would their minds produce "cognitive distortions", bending them away from the official truth?
My point is that intelligent, well-meaning and even honourable figures among the "great and the good" in society are in some circumstances apt to do what is comfortable rather than what is right, to go with the flow of a prevailing ideology, to hold on to their positions of prestige and esteem instead of truly scrutinising what is going on and taking a stand against it when they ought.
I wonder if any members of the SAP saw Conspiracy on television earlier this year, featuring Kenneth Branagh as the Gestapo chief Reinhard Heydrich? (103) Quite a few did, I imagine, for this was flagged as serious drama and became the talk of the chattering classes. The programme was a dramatised reconstruction of the infamous Wannsee conference, at which the Nazi regime started to give shape to a scheme for the extermination of Europe's Jewish population. Conspiracy is said to have followed faithfully the surviving minutes of the meeting and one needed little persuasion as to the authenticity of what was shown. It was a terrifyingly convincing portrayal of events and what made it so was the normalcy of the participants.
What we saw was not the cliché villains of a thousand other films and TV shows. This was not about Gestapo brutality, though the influence of thinly-veiled threats was seen to be a pervasive aspect of the Wannsee decision-making process. The more striking feature was the presence at the meeting not of secret police and military figures but of lawyers: the room was packed with them lawyers who were also constitutional theorists and leading public servants. These were people whose profession was supposedly defined and constrained by the requirements of law and of justice. And there was a leavening of philosophers and historians. Here, as with the SAP, was a sophisticated, civilized body of intellectuals. And what did that body decide? To implement the most appallingly vast and deliberate act of mass murder the world has ever known.
I have no wish to take the comparison too far. The UK today is a prosperous, stable, democratic country with a Human Rights Act. Genocide is not on the agenda. Denouncing various acts of the government as "fascist" or "worse than the Nazis" has itself become such a cliché, so devalued through inflated claims relating to minor cases of alleged unfairness, that I hesitate to join in the squalid game.
And yet I feel I must point out the real dangers that exist, and in doing so the Nazi comparison cannot reasonably be rejected as irrelevant. The danger today is not of our society blindly following a mad dictator down a path of destruction. The threat today comes not from leadership but from followership. What we are seeing in the field of social affairs is populist politicians pandering to the fears and prejudice of a majority whose chief source of information the mass media is generally simplistic and misleading. The result is a tyranny of the ignorant majority.
This is not to belittle people whose busy and productive lives mean they cannot bury themselves in the minutiae of the law and its effects. Nor is it to sneer at their legitimate interest in securing the welfare of their children. But that welfare will not be secured unless policy is thoroughly well informed and led not followed by solid evidence and by the vigorous contribution of bodies like the SAP. Such leadership needs courage, but not unbounded courage. No-one is going to shoot any Panel member who breaks ranks, as would have happened to anybody who had dared to oppose Heydrich. That excuse for silent betrayal of the truth is not available to them.
The worst that those who step out of line can expect is a somewhat less glittering career. Compare that with the fate of those whose futures lie in the Panel's hands as a result of their deliberations. The SAP has the power to grind people to death sometimes literally in the wheels of justice. In recent years we have seen a number of suicides in the wake of "child pornography" investigations, (104) many of them utterly pointless, destructive intrusions in the lives of valuable people, some of them, like John Saunders, having a rare natural rapport with the most difficult of troubled youths. In recent decades we have moved in terms of "therapy" from electric shock treatment and chemical castration to more subtle and hence more hidden ways of torturing child-lovers. Coerced "cognitive-behavioural" treatment, i.e. brain-washing, is now the fashion, coercively backed up by the threat of ever more draconian prison sentences. (105)
Don't kid yourselves such treatments are either liberal or necessary. Ray Wyre, whom the Panel cites as a consultant, is to my mind a Dr Mengele of our era. (106) Another of your consultants, by contrast, Dr Bill Thompson, is a man of courage who should be considered a positive example.
Even as I have been writing this submission there has been an event to take some of the shine off his glittering academic career. By the time you read this you may know that I am referring to him being suspended from his post at Reading University following a police raid on his home in connection with the suspected possession of "child pornography". His only crime if the Sunday Telegraph report (107) of the case is to be believed, and I think it is, has been to make enemies through his appearances in court as an expert witness, work which has prevented a great many miscarriages of justice.
As the Telegraph said: "Dr Thompson's outspoken opposition to many of the techniques that have become standard in child abuse cases has created a great deal of opposition. If he is right, however, there are scores, perhaps hundreds, of men now in prison for offences against children which they did not commit. It is a genuinely 'appalling vista' and one which, as yet, neither the judiciary nor the Home Office seems willing to confront. Meanwhile Dr Thompson, who has been willing to confront that possibility, finds himself facing the allegation that he is a paedophile."
I would add that there are scores, perhaps hundreds, of people who have suffered grave injustice as a result of the "child pornography" legislation. There could certainly be no clearer example of the fact that things are getting out of hand than what has happened to Dr Thompson. When the POCA was introduced solemn assurances were given that those with a "legitimate reason" to handle illicit material had nothing to fear. The falsity of that promise should now be evident to all.
The time has come for the SAP to stop running away from the issues, as most of the judiciary and the Home Office have indeed so far done. The time has come to be as courageous as Dr Thompson, to face the facts honestly and to take a brave stand for justice.
Appendix: The Times, March 1988, Question the legislation, not the need, by Barbara Amiel
Relevant works by the author of this paper, who is a journalist, aged 56, with a long background of interest in social and legal policy:
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