NOTES

NOTES:

(1) A Guide to the Human Rights Act 1998; Justice; December 2000.

(2) Opinion submitted to the National Council for Civil Liberties and made available to me at the time, when I was regularly attending meetings of the NCCL Gay Rights Sub-Committee.

(3) Letter from Harriet Harman, then Legal Officer of the NCCL, to Home Office minister Brynmor John, 25 April 1978.

(4) Hansard, 10 February 1978, col. 1850.

(5) Geoffrey Robertson; Obscenity; Weidenfeld & Nicolson; London; 1979.

(6) Ibid. p304.

(7) Ibid. p206. In the context of indecent assault, the meaning of "indecency" was further explored by Professor Glanville Williams in an article which began thus: "No statute defines indecency, yet this is the element that makes the difference between common assault (a summary offence, maximum six months) and indecent assault (maximum now ten years). In gross cases no question arises; the trouble is with the marginals." Following many thousands of words of deliberations, he opens his concluding remarks by saying "My suggestion is that the concept of indecency has proved to be so difficult that we should try to get rid of it." (Glanville Williams; The Meaning of Indecency; Legal Studies 20: 20-33; 1992)

I also note that following its recent examination of the law on sex offences, a government review body issued a report proposing reforms which go a long way towards meeting Williams' recommendation. The report suggested replacing the laws of indecent assault, gross indecency and indecency with a child under 14, with new legislation not reliant on the words "indecent" or "indecency". The offence of indecent exposure would be clearly defined under the proposals, leaving only the common law offence of outraging public decency lacking a clear definition among the offences reviewed. These did not include the POCA. (Setting the Boundaries: Reforming the law on sex offences; Home Office; 2000.)

(8) See, for instance, The Sun, 16 November 1995. The front-page lead headline read: "Julia's lover took 28 nude pics of girl, 7".

(9) See, for instance, The Observer; Sunday, March 11, 2001: Family photos aren't porn insists Saatchi row artist.

(10) See page 7 below.

(11) Robertson op. cit. p175.

(12) Archbold: Criminal Pleading, Evidence and Practice; 50th Edition, ed. James Richardson; Sweet & Maxwell; London; 2002; section 31-108; p2552.

(13) Robertson op. cit. p176.

(14) Consultation Paper, para. 28.

(15) Lawrence A Stanley on pages 88-90 of his book Regarding Proposed Changes to Article 240b of the Dutch Penal Code. This work was published privately in 1994.

(16) Stanley op. cit. p90.

(17) Rook (P) & Ward (R) on Sexual Offences 2nd Edition; Sweet & Maxwell; London; 1997; section 6.96; pp204-5.

(18) Stanley op. cit. pp81-2, referring to a radio programme aired on 21 February,1994.

(19) Don't shoot the photographer, Independent Magazine, 11 September 1993, cited in Stanley op. cit. p95. The letter, written by Avedon Carol and Niki Wolf, was written following police investigations into the photographic work of artist Graham Ovenden and society photographer Ron Oliver. Neither man was ever charged.

(20) The Independent, 6 November 1995.

(21) Report by Rebecca Fowler and Decca Aitkenhead in The Independent, 6 November, 1995.

(22) Hansard p542.

(23) Stanley op.cit. p94.

(24) Saatchi photographs are not obscene, says CPS, by Jason Bennetto, The Independent, 16 March 2001. Unlike the headline, the text of the story has the CPS saying the photos were not indecent.

(25) The paedophile bogeyman and the paranoid parents, by Melanie Phillips, The Sunday Times, 18 March 2001.

(26) Michael Hames; The Dirty Squad; Little, Brown; London; 2000; p84.

(27) A Guide to the Human Rights Act 1998, Justice, December 2000, p19.

(28) Edward Brongersma; Loving Boys, Vol. 2; Global Academic Press; Elmhurst, NY; 1990; p460.

(29) Ibid. p462.

(30) Ibid. p461.

(31) Ibid. p461.

(32) Queer As Folk; Channel 4 TV; 1999.

(33) Amy Adler; The Perverse Law of Child Pornography; Columbia Law Review; March 2001; p268, note 322.

(34) See, for instance, Kenneth Plummer; Telling Sexual Stories: Power, change and social worlds; Routledge; London; 1995.

(35) Jeffrey Weeks; Sexuality and Its Discontents; Routledge & Kegan Paul; London; 1985.

(36) M G Wyness; Contesting Childhood; Falmer Press; London; 2000.

(37) J Gathorne-Hardy; Alfred C Kinsey: Sex, The Measure of all Things; Pimlico; London; 1999.

(38) Kinsey A C et al; Sexual Behaviour in the Human Female; Saunders; Philadelphia; 1953; p138.

(39) Kinsey A C et al; Sexual Behavior in the Human Male; Saunders; Philadelphia; 1948; p195.

(40) Ibid. p177.

(41) The programme received massive media attention. Billing Morris as "the man who set Britain talking", an article by Euan Ferguson in The Observer (5 August 2001), titled Why Chris Morris had to make Brass Eye, probes the serious intentions behind the satire.

(42) The Guardian, 2-5 June 1998.

(43) The Guardian, 5 April 1997; article by Nick Davies and Eamon O'Connor.

(44) I examine The Guardian's handling of the Bjorn saga in detail in my paper Sexual privacy for paedophiles and children; Symposium on Sexual Privacy; International Academy of Sex Research, Paris, 2000.

(45) The Independent, 21 February 2001.

(46) The Independent, 1 March 2001.

(47) Setting the Boundaries (see Note 7) Vol. 1; page i (Foreword) and page ii (Introduction).

(48) The underlying theory appears to be derived largely from feminist analysis of "patriarchy" and the abuse of male power. This analysis has undoubtedly made for some lively debate over the years leading to a critique which accords well with my own view that society needs to aim to empower both women and children. Feminist influence becomes just as pernicious as male supremacism, however, when it proposes that women, because they know all about oppression by men, should be left to call all the shots where children's lives are concerned. This is like saying that Israel, because it knows all about the oppression of Jews under the Nazis, can be trusted to protect the Palestinians. Theory directed towards "protecting" the vulnerable as opposed to working towards sexual self-determination for children, mentally handicapped adults and other arguably vulnerable groups is also espoused by Christian fundamentalists as well as psychiatrists and child abuse industry professionals with a vested interest in problematising children's sexual expression. For a discussion of the forces ranged against such expression in relation to the scientific evidence about paedophilia, see my paper Is paedophilia violent?, presented at the World Congress of Sexology, Paris, 2001

(49) B Rind, P Tromovitch, & R Bauserman; A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples; Psychological Bulletin 124: 22-53; 1998.

(50) See, for instance, David Finkelhor; Sexually victimized children; Free Press; New York; 1979. At pages 51-2 he acknowledges that some adults report a positive view of their childhood sexual experiences with an adult. At pages 63-4 he says that in some cases adults report having initiated such experiences.

(51) D J West; Boys and sexual abuse: An English opinion; Archives of Sexual Behavior; 27, 539-559.

(52) Richard Green; Sexual Science and the Law; Harvard; 1992; p160, citing Howard League Working Party; Unlawful Sex; Waterlow; London; 1985; p161.

(53) Crown v John Robin Sharpe, Supreme Court of British Columbia, 1999; Docket: XO50427; Registry: New Westminster. Canadian Supreme Court hearing: Indexed as: R. v. Sharpe Neutral citation: 2001 SCC 2. File No.: 27376. 2000: January 18, 19; 2001: January 26.

(54) Personal communication with the defendant.

(55) G A Moonen v Film & Literature Board of Review, Court of Appeal of New Zealand, 8 November 1999; CA42/99.

(56) Kinsey, Human Male pp 500-503; Human Female pp138-146.

(57) Numerous sources e.g. Floyd M Martinson; The sexual life of children; Bergin & Garvey; Westport, CT; 1994.

(58) See, for instance, Joel Best, Threatened Children: Rhetoric and Concern about Child-Victims; University of Chicago Press; Chicago; 1990.

(59) Stanley op. cit. p 12. In Note 11 Stanley refers to a content analysis of materials sold in Dutch sex shops in 1981; "child pornography" constituted only 5.1% of the total, yet the Netherlands at that time was widely held to be the world's biggest supplier of such material.

(60) Paedophile Ring Smashed; Sky News; Wednesday March 20, 07:31 PM.

(61)Thomas Kirk v. The Procurator Fiscal, Kirkcudbright [2000] ScotHC 104 (16th November, 2000); Appeal Court, Scotland; Appeal No: 2307/00.

(62) Commentator Simon Jenkins said of the British Crime Survey: "It has the massive advantage over all impostors in being what it claims to be, a survey of British crime as it is, not as it appears to the police." The crime that dare not breathe its name; The Times; 18 October 2000.

(63) David Finkelhor; The Decline in Child Sexual Abuse Cases; Juvenile Justice Bulletin; January 2001.

(64) Associated Press report, 15 January, 1999. In legal terms, this assumption is stated in Canada as "a reasoned apprehension of harm". The apprehension may be supported by arguments that sound reasonable but they have no grounding in fact: the assumption remains an assumption.

(65) B. Kutchinsky; The effect of easy availability of pornography on the incidence of sex crimes: The Danish experience; Journal of Social Issues 29 (1973), pp. 163-181.

(66) B. Kutchinsky; Pornography and its effects in Denmark and the United States: A rejoinder and beyond. Comparative Social Research 8 (1985), pp. 301-330. See p319 for West Germany.

(67) M Diamond & A Uchiyama; Pornography, rape & other sex crimes in Japan; International Journal of Law & Psychiatry; 22:1, 1-22; 1999.

(68) M Diamond; The effects of pornography: an international perspective. In Porn 101: Eroticism, Pornography and the First Amendment; ed. James Elias et al; Prometheus; New York; 1999.

(69) Kazunori Takada; Cases of molestation jump by 25% in Japan; Reuters, Tokyo, 13 October 2000.

(70) Dennis Howitt; Pornography and the paedophile: Is it criminogenic? British Journal of Medical Psychology 68:15-27; 1995.

(71) Nor it seems do most people in culturally diverse modern Britain, and jurists appear gradually to have accepted the point in most contexts since the days of the Devlin-Hart debate. I addressed the issue thus in a recent paper on the right to sexual privacy (see Note 45 above):

It is instructive for considerations of privacy rights to look back to the early and mid-1960s, to the time before the upward progress of the gay movement and the reciprocal descent of paedophiles into demon status. The prominent English lawyer Lord Devlin was at that time credibly able to oppose the very concept of sexual privacy rights; his support came from the conservative legal establishment and for him there was no area of private "immorality" that was not the law's business. He believed sexual behaviour should not be legally tolerated if the reaction to it of the "man in the street", or the "reasonable man" was one of "intolerance, indignation and disgust". Devlin proposed such a public opinion test because he saw a shared, consensus morality as the cement that binds society and distinguishes it from a mere collection of individuals. Those who broke the moral code were thus seen as threatening the fabric of society.

In the light of my comparison between the changing relative public perception of homosexuality and paedophilia, it is interesting to note that "Devlin considered homosexuality analogous to treason because he saw both as destroying society through the process of changing society." (R Green op. cit. p256. Green has an interesting discussion of the Devlin-Hart debate, including its 19th century philosophical roots in the work of John Stuart Mill and his critic James Stephen.) Only in a society generally acknowledged as already perfect could such a static, conservative position reasonably withstand challenge. Devlin's chief opponent in a protracted and celebrated public debate of the era, H L A Hart, argued "that if respect for homosexuals who are accomplished citizens changes society's views on sexuality, the analogy with government 'is not the overthrow of ordered government, but a peaceful change in its form'. To Hart, the risk of democratic rule by the majority is to tell the man in the street that if 'only he feels sick enough about what other people do in private to demand its suppression by law no theoretical criticism can be made of his demand'."

Society in Devlin's day was of course by no means either perfect or static and Hart's view has prevailed. Many, though significantly fewer than of old, still look upon homosexual behaviour with "intolerance, indignation and disgust" but that is now more likely to be considered a reason for according such behaviour legal protection than for outlawing it: the law is more likely to be seen as a tool for supporting social diversity and minority rights than for the imposition of conformity to a single standard.

(72) Following constitutional rulings by the courts in British Columbia and by the Supreme Court of Canada, the Sharpe case went to trial recently in Vancouver, where John Robin Sharpe was acquitted of charges of intending to distribute "child pornography" through a collection of S/M stories. He was found guilty of two charges of possession of child pornography related to the seizure of photographs of children and awaits sentence as I write. Two expert witnesses had testified that the stories had literary merit, and Justice Duncan Shaw said Sharpe's work "should be considered an attempt at artistic expression in the same way as the writings of the Marquis de Sade". Sharpe's lawyer, Paul Burstein, hailed the acquittal as "a great victory, not only for Mr Sharpe, but for artistic and literary freedom in Canada". (Pornographer acquitted by his "artistic merit"; Andrew Buncombe; The Independent; 29 March 2002.)

(73) Glitter Drops Jail Sentence Appeal; Yahoo! news; 17 November, 1999.

(74) Child homicide study highlights importance of links between child protection agencies and mental health experts; Southampton University news release Ref: 01/16214 December 2001. This report is based on a study by Colin Pritchard & Christopher Bagley in the Journal of Forensic Psychiatry; Vol 12 No2; pp273-290.

(75) Jailed! Beast who preyed on boys; Daily Mirror; 14 October, 1978; p7.

(76) I discovered many details about the case in connection with my work for the NCCL Gay Rights Sub-Committee and discussed the issues at length with Saunders himself before he was sentenced.

(77) Information from COPINE's website.

(78) See Christopher Marquis; US Says It Broke Pornography Ring Featuring Youths; The New York Times; 9 August 2001

(79) Tom O'Carroll; Paedophilia: The Radical Case; Peter Owen; London; 1980; pp201-2.

(80) Larry Constantine; The sexual rights of children: implications of a radical perspective; in Larry L Constantine & Floyd M Martinson (eds), Children and Sex: News Findings, New Perspectives; Little Brown; Boston; 1980.

(81) In Ferber, the landmark US "child pornography" case, Justice Brennan assumed that serious artistic value would be a valid defence in a case if it were raised. He wrote that harm to a child and value of a depiction bear an inverse relationship to one another: "The Court's assumption of harm to the child resulting from the 'permanent record' and 'circulation' of the child's 'participation' ... lacks much of its force where the depiction is a serious contribution to art or science", he said. Reported in Adler op. cit., p243, Note 188.

(82) National Secular Society; Evidence to the Williams Committee on Obscenity & Film Censorship, reprinted in The Freethinker 98:5, pp67-8 (1978).

(83) Rind et al; The Validity and Appropriateness of Methods, Analyses, and Conclusions in Rind et al (1998): A Rebuttal of Victimological Critique From Ondersma et al. (2001) and Dallam et al. (2001); Psychological Bulletin Vol 127. No.6; 2001. See discussion of "severity" at p 242.

(84) See David Finkelhor; Sexually victimized children; Free Press; New York; 1979, where he wrote:

Unlike force, sexual activity and duration both are ambiguous in their implications. A longer relationship and one involving intercourse indicate greater intensity. Intensity may be more harmful, but it could also be an indicator in some cases of a positive, or at least. an ambivalent, bond. In contrast, presence of force would almost always signal something negative about the relationship. It is a concise symptom of a whole negative context - the reluctance of the child, the pressure exerted by the partner, the difference in power and control. The primary recollection of the child is of the coercion. That there was sex involved is perhaps less important than the fact that there was aggression. (pp. 104-105)

(85) In Heavy Petting, by Peter Singer, an online review of the book Dearest Pet: On Bestiality by Midas Dekkers; Verso; 2000.

(86) "Of the boys who will ever be involved, a third have had their first contacts by nine years of age; but between 10 and 12 there is a more rapid increase in the active incidence figures. The level which is reached in these years is never again equalled": Kinsey, Human Male pp174-5.

(87) Adler op. cit. p258, note 276, referring to US v. Amirault, 173 F.3d 28, 33; 1st Cir. 1999.

(88) Ibid. p238, note 167.

(89) Adler op. cit.

(90) Rook & Ward op. cit. sections 6.93 & 6.94, p203.

(91) Adler op. cit. p240.

(92) Ibid. p264.

(93) Ibid. p256.

(94) Ibid. pp257-8.

(95) For a description and critique, see David Lister; New editor's controversial "naming and shaming"stunt backfired; The Independent; 13 December 2001.

(96) Consultation Paper on the Review of Part 1 of the Sex Offenders Act 1997; Home Office, July 200; p15.

(97) "Mr Respectable" paedophiles face caution, not court , by Ian Burrell, The Independent, 10 May 2000.

(98) Ibid.

(99) For an extensive scientific discussion of the aetiology of paedophilia see Pedophilia: Biosocial Dimensions, ed Jay R Feierman, Springer-Verlag, New York, 1990.

(100) "Mr Respectable" paedophiles See Note 97.

(101) See Feierman op. cit.

(102) See for instance David Cohen, Soviet Psychiatry: Politics and Mental Health in the USSR Today, Paladin, London 1989.

(103) Conspiracy, BBC television, 2001.

(104) In December 1999 police released details of a massive operation in the UK, involving 20 police forces across England, Wales and Scotland. The officers were reportedly acting and I quote "with no prior intelligence", which I can certainly believe. What was meant by this, however, is that they were not investigating cases in which a child had been abused. They were simply trying to trace individuals downloading images, and used means such as chat-room surveillance to point them in the right direction. In other words, the police were taking draconian action against a private activity of a harmless or even positively benign nature in its overall effects. But raids such as this are far from harmless in their invasive effects on the individuals caught in the net. A similar raid in France in 1996 saw 710 searches. In exactly 500 cases no charge was made, but that did not prevent many devastated lives as a result of the shame the raids brought even to those who had not broken the law. Five of those thus exposed killed themselves in the following weeks, including two who were not even facing charges.

(105) See D. Howitt; Paedophiles and Sexual Offences Against Children; Wiley; Chichester; 1995.

(106) I do not mean to allege that he has been engaged in illicit surgery or medical experiments. I refer to the level of control he exerts over those in his power and the fact that this power is abused in an attempt to destroy his victims' personality and identity. This amounts in my view to mental torture and an outrage against human rights. The nightmarish implications are particularly apparent in cases where convicts deny their offence. As one correspondent put it: "Denial may have no relationship to recidivism. Psychiatrists use it to justify continued incarceration. Some in Canada want complete control over the length of sentences of convicted sexual offenders. The wrongfully convicted are in a particularly onerous position. One's innocence becomes a cognitive distortion. The clinical application of cognitive distortion theory can be used to extract confessions in a manner parallel to the use of torture".

(107) Alasdair Palmer; Silenced witness; Sunday Telegraph; 24 March, 2002.