The Trade in Child Pornography
Jan Schuijer and Benjamin Rossen [*]
IPT Journal Vol. 4 - 1992
The Shock
The first media exposés about a purported massive trade in
child pornography started in the U.S.A., England and
Scandinavia at the end of the 1970s. They reached the
Netherlands for the first time in 1984, causing shock and
fascinated indignation, in part because of the claims of the
enormous volume of business. In the Netherlands, child
pornography had only appeared in the media as incidental to
other stories. An example is the so-called "Mini-love
affair," where a complaint was lodged against parents who
had permitted a pornographer access to their children, and
against the photographer himself. [*1]
However, child pornography was not a
public issue in the Netherlands, even though photographs of
children were openly for sale in most pornography shops.
In the classified advertising section of Vrij Nederland,
[*2] undisguised offers of child pornography regularly appeared.
[*3] That changed in July 1984, when police raided a number of
Amsterdam sex shops. The raids were featured prominently
in press and television news. Police spokesman Klaas
Wilting said the situation had "completely run out of
hand." He said the market for child pornography was
large, representing millions of guilders. He claimed the
sex shop owners told him child pornography was half of their
turnover. Also, contents of the confiscated material
were described as shocking.
"On the films and
videos you can see that the children have been used against
their will. The horror radiates from their faces."
[*4]
The media reported eight cubic meters of child pornography was
seized. This was repeated as fact in the Lower House
[*5] and not questioned by the Minister of Justice, [*6] although the quantity was actually a small fraction of
that. [*7] Most of the media, knowing nothing about the subject, accepted
the information as true.
In November, 1984, at hearings in the
U.S. Senate the claim was made that child auctions for the
purpose of sex slavery and pornography were held regularly in
Amsterdam. In the same month a group of American
Senators visited the Netherlands to show their dismay and put
pressure on the Dutch government to act. Disbelief and
indignation mixed with the suspicion that some of the stories
must be true and that a serious response to the American
allegations was needed to prevent an impression of
laxity. Of print media, only Vrij NederLand [*8] published a critical article expressing skepticism over the
claim that 50% of the total pornography trade was child
pornography. [*9]
The senior detective inspector, Dutch
Central Police Investigations Information Service (Centrale
Recherche Informatiedienst) Mr. M.J.M. Rijk, later told
quite another story:
We pressed, more or less, the people in the shops to stop
selling child pornography. We said "We will
arrest you if you continue with it, because it's forbidden
and we won't allow you to have it (in stock). We will
be very strict in future." And they said,
"Well, it's only 1% of our turnover and we don't like
to have problems with the police. It's not big
business for us, so we will stop." [*10]
Nevertheless, Mr. Wilting's claims
appeared to be confirmed in May 1987, when the large child
pornography scandal broke out in the village of Oude Pekela
[*11] in the northern province of Groningen. Dozens of
children were said to have been enticed away by child
pornographers dressed as clowns, and then abused, filmed and
drugged before being returned to parents who, it was later
reported, had never noticed anything. Claims of
sacrificial offerings, and drinking of blood and satanism
[*12] were overshadowed by the stories of pornography manufacture,
which touched a sensitive chord among Dutch people.
The stories confirmed the recurring
theme in the media charging laxity by the government which, it
was said, had slept while the child pornographers went freely
about their business. [*13] Defence for Children International
(DCI), a private
international organization for the protection of children
recognized by the United Nations as a Non-Governmental
Organization, continued hammering on the theme. It
claimed that annual profits of five billion dollars were made
on child sex and child pornography. [*14] Sometimes the claims escalated to ten billion dollars,
[*15] and sexual exploitation, trade in children, and child
pornography was said to be increasing.
Where the figure of ten billion came
from remains unclear. The claim was also not supported
in the final report of the U.S. Senate Commission on child
pornography and pedophilia which came out in 1986, under the
chairmanship of William V. Roth, Jr. The Commission
concluded that:
The most generous estimates of the value of foreign child
pornography entering the United States — according to
known seizure figures — would probably not exceed $5
million. [*16]
Emphatic assertions by independent
individuals claiming an enormous trade existed, followed by
denial in official reports, formed the pattern of the public
discussion during the 1980s. It should be borne in mind
that these reports periodically appeared after the time
Parliament and the Justice Department took a stand against
child pornography. As a result of official actions
against child pornography, the trade, which had actually never
been large, disappeared almost immediately, as confirmed by
Mr. Rijk. Before that, in the 1970s and early 1980s, a
visible market for child pornography existed, which, until
now, has never been accurately charted. The total number
of children involved has also remained unknown. [*17]
In this study we made an attempt to analyze this trade
quantitatively and qualitatively. We made an estimate of
the turnover, the number of children involved and performed an
analysis of the content of the pornography. It should be
remembered that such an analysis cannot be exact. The
data had to be collected from here and there and in some
instances we had to use information from pornographers and
traders.
We considered this acceptable, since our
conclusions on the basis of this information confirmed the
claims made by institutional opponents of child pornography,
namely the governments involved. Our conclusions were
never disconfirmed with hard evidence by third parties such as
DCI and other anti-pornography crusaders, whose unsupported
claims were often several orders of magnitude greater.
In our study we narrowed the range to a more realistic level.
The Origin of the Myths
In 1976 Robin Lloyd, correspondent for NBC, published For
Money or Love: Boy Prostitution in America ()().
[*18] In the book, for which a U.S. senator had written an
introduction, Lloyd claimed that a huge network of
prostitution involving 300,000 boys existed. The notion
that child pornography trade is big business was initiated in
this book. Yet, nowhere in the book is there any
empirical basis for the number 300,000. Indeed, Lloyd
admitted that it was a working hypothesis which he had
suggested to a number of experts to test their reactions.
[*19]
This didn't prevent Judianne Densen-Gerber, director of Odyssey
House, a chain of residential treatment clinics for drug
addicts, from taking over the figure as if it represented a
reliable statistic. She set about to mobilize public
opinion against child pornography to which, she said, Lloyd
had alerted her.
The media followed the stories of child
exploitation in detail. In the national periodicals
during 1977 nine articles appeared. [*20] The New York Times,
a paper known to avoid sensationalism, printed 27 articles
that year compared to one in the two years before. When
in May, 1977 the highly popular television series Sixty
Minutes devoted a program to child pornography, a
tidal wave of letters to politicians resulted. [*21]
That spring a subcommittee of the Committee on the Judiciary
of the House of Representatives held a series of hearings on
the subject which lasted until autumn, keeping child
pornography in the news in the U.S.A. A platform was
established by crusaders against child pornography, and in the
prevailing climate of moral panic their cries for stronger
measures received wide political support.
The chairman of the committee was
Representative John Conyers Jr., who had organized the
hearings to pass judgment on the proposal of Representatives
Kildee and Murphy for a first Federal law against child
pornography. It was this series of hearings that would
make the question of child pornography a national issue.
The first hearing was dominated by the appearance of Judianne
Densen-Gerber. Equipped. with some child pornography
magazines, she shocked congressional representatives with her
claim that she had, together with Robin Lloyd, counted 264
comparable publications that, according to her, appeared
monthly (an exaggeration by a factor of several orders of
magnitude as we shall see). The figures which Robin
Lloyd had mentioned as a working hypothesis were repeated by
Densen-Gerber as fact:
Lloyd's book documented the involvement of 300,000 boys,
aged 8 to 16, in activities revolving around sex for sale.
[*22]
She then multiplied the number by two,
because her intuition told her that 300,000 girls were also
involved in such activities. She then multiplied it
again by two since, according to Lloyd, the real figure was
"twice what he (could) statistically validate,"
[*23] and this lead to something like a million children. The
chairman Conyers multiplied this again by two since, he
reasoned, America had not only one million runaways but
another one million school drop outs. In this way the
contours of a national disaster were drawn. According to
Conyers:
"So we have somewhere possibly in the neighbourhood
of 2 million kids who form a ready market for sexual
exploitation from pornographers and the like." [*24]
Densen-Gerber could not agree more. The Kildee-Murphy
proposal was made law without any opposition: 401 for, 0
against.
Researching the Facts
The claims of the crusaders that lay at the foundation of
the new law turned out to be exaggerated. Two large
scale government investigations concluded that the claims were
not based on any facts. One investigation was carried
out by a commission of the Illinois State Legislature: The
Illinois Legislative Investigating Commission (ILIC).
The immediate reason for the investigation was the claim made
by Judianne Densen-Gerber in 1977 that Chicago was a stopover
for boy prostitutes who were being transported back and forth
between New York, Los Angeles, Houston and New Orleans. [*25]
After a three-year investigation in
cooperation with the FBI and
the U.S. Postal Service and
the U.S. Customs,
the report of the ILIC was published in 1980. Undercover
actions were organized and persons in the commercial sex
world, in addition to known sex criminals, were
interrogated. The report concluded that the largest
underground publication containing erotic images of children
and teenagers
"could attract, at most, 1,000
individuals. Even if each individual passed his copy on
to several others, it takes a stretch of the imagination to
think that there are 50,000 to 100,000 readers of child
pornography 'out there,' particularly given the nature of the
other operations we have mentioned in this part of our
report." [*26]
The stories of child prostitution must
have conjured up frightening images in the imaginations of the
public. The fact that police and justice functionaries
had not been able to discover organized groups of teenage and
child prostitutes anywhere made no difference to the growing
panic, and the original claims were repeatedly cited as
"facts." In the ILIC report it was determined
that the claims, given in evidence and written in books,
appeared undocumented and the authors were not able to support
their claims with any facts. This was true for
Densen-Gerber's claim that Chicago was a center of teenage
prostitution. Furthermore, the report revealed that at
least one other of her anecdotes was completely invented.
[*27]
According to an employee of Odyssey
House, everything that Densen-Gerber claimed to know about
youth and child prostitution had been taken from Robin
Lloyd. Lloyd was also criticized. He had first
used the figure of 300,000 boy prostitutes, but that later
turned out to be based on nothing. To the ILIC, Lloyd
stated that he had "thrown out" a figure of
30,000. When it was suggested to him by police and
justice department people that this might be a conservative
estimate, he revised the figure to 300,000. [*28] When asked, however, he was unable to name any individuals or
cite any source for the statistic.
The figure of 30,000 was also given to
the ILIC by Lloyd Mar, an investigator of the Los
Angeles Police Department. This was his personal
"conservative estimate" of the number of boys that
were exploited by pimps and pornographers in the Los Angeles
region alone. [*29] He gave no source either and it appears that he too had
"thrown out" 30,000 to see what would happen.
To the ILIC Lloyd Martin said that he had based his estimate
on Robin Lloyd's claims. [*30] He was unable to name any other source.
The other investigation was carried out
by the FBI. At the end of 1977 the FBI started a sting
operation under the name of Miporn. [*31] Pornography distributors throughout the nation were raided and
their premises searched. The ILIC report summarized the
findings of this investigation as follows:
In their two years of searching for (child pornography)
on a commercial level, none was discovered.
Furthermore, none of the 60 raids resulted in any seizures
of child pornography, even though the raids were
comprehensive and nationwide. [*32]
The trade in child pornography had only marginal value and
was vulnerable to pressure from outside. The public
indignation and the high penalties proscribed by the new laws,
in combination with the insignificant turnover and small
profits, were sufficient to bring the trade to an end.
The Spread of Rumors
In 1986 the Senate Commission [*33] under the chairmanship of William V. Roth, Republican from
Delaware, came to the same conclusion as the ILIC
report. Nevertheless, neither the Roth report nor the
ILIC report were able to dampen the spread of rumors about an
enormous trade. Even in 1986, the claims of Lloyd and
Densen-Gerber continued to come up as facts in official
reports: the Meese Commission, initiated by the Reagan
administration to prepare a drastic sharpening of the
anti-pornography laws, uncritically took over these claims.
[*34]
According to the Meese Commission, Congress had discovered
that child pornography and child prostitution "have
become highly organized, multi-million dollar industries that
operate on a nationwide scale." [*35] The monthly appearance of 264 magazines (Densen-Gerber) was
again reported as truth, alongside the 30,000 exploited
children of Los Angeles (Lloyd Martin).
The U.S. Supreme Court took over these
claims in their first child pornography case, New York v
Ferber (1982), saying that child pornography comprised,
"highly organized multimillion dollar industries that
operate on a nationwide scale." [*36] The otherwise dignified court was so upset by the alleged
extent of the problem that the solicitor for the accused,
Herald Price Fahringer, lost his composure and fled the
sitting as fast as he could. [*37]
The claims of Lloyd and Densen-Gerber
also appeared outside the U.S.A. The report, Exploitation
of Child Labour, which was submitted in 1981 to the
Commission for Human Rights of the United Nations, claimed:
"In the United States there are at least 264 pornographic
magazines specializing in pornography concerning
children." [*38] It was claimed that in 1977, 15,000 slides and 4,000 films of
child pornography had been intercepted by the police, which
was, according to the report, 5% of the total stock in
circulation.
According to the United Nations report,
the value of trade in child pornography in 1977 was estimated
at $500 million. Such estimates are not based on any
kind of empirical evidence, and are easy to refute. If
these claims were true then the allegedly intercepted slides
and films would have had a value of thousands of dollars each.
[*39] In reality, these films were sold for much less, which can be
checked with reference to the advertisement brochures of Deltaboek,
publisher of homosexual pornography and literature. From
here it is apparent that the Golden Boys film series, produced
by COQ in Denmark, cost 85 guilders each, which is
about $35.
In 1986, Defence for Children
International prepared a report on child prostitution in which
they claimed: "Estimates on the number of child
prostitutes vary from 300,000 to several millions for the U.S.
and Canada." [*40] A year later these figures were taken over by the
Norwegian
Ministry of Justice. [*41] This report was later submitted to the Ministers of Justice of
the member countries of the Council
of Europe.
Within the Council of Europe a report on
child exploitation was written in which it was claimed that:
"A study of boy prostitutes had suggested that there were
300,000 boy prostitutes in the United States, many of whom are
designated runaways." [*42] The claims of the United Nations report were also
repeated.
As late as 1988 the Dutch language world
development magazine, Onze Wereld (Our World), claimed
that:
"The American (sic) periodical [*43] Child Abuse and Neglect reported that in the United
States at least 264 different child pornography magazines are
in circulation. The kiddieporn stars are drawn from the
numerous American runaway teenagers." [*44]
The same article made similar exaggerated claims about alleged
illicit trade in donor organs obtained from children killed
for the purpose. The story about donor organs had also
appeared in the report of the Council of Europe, although
there was never any evidence and the story was not credible
from the beginning. [*45]
The alleged size of the child pornography trade and the
many children said to have been involved, are little more than
myths. They are the result of the arbitrary
multiplication of arbitrary numbers of alleged victims made by
a journalist. The claims had taken on a life of their
own.
The fact that these claims had by 1980 been
rejected by thorough official investigations was insufficient
to prevent the claim from reappearing, not only in the media
but also in other official circles, including the United
States Senate, the United States Supreme Court, a Commission
of the American Justice Department, the United Nations and the
Council of Europe. After the number had been cited in
the Hearings of the House of Representatives, it became
associated with an ostensibly reliable source. The fact
that the original source was anything but reliable was
forgotten.
New Laws, New Business
Offense against Decency, or Crimes of Abuse?
There was one main cause of the rise of child pornography
trade around 1970. In many countries the existing
anti-pornography laws were being dismantled at the legislative
and at the judicial levels. Except perhaps for some
traders, no one could predict what possibilities this would
open up for the emerging pornography industry.
Apparently, this was a result of the fact that the law was not
concerned with the protection of those who posed for the
making of pornography, both adults and children; indeed, the
distinction was hardly made.
In the decades before, the
justification for pornography censorship was the hypothesis of
a negative moral effect on the consumers. It was the
moral scandal that was combated. No one seemed to have
the idea that protection of models and actors was the task of
justice. Indeed, pornography actors were perceived by
many as fallen individuals, among whom no moral fiber was left
to protect. In some places that is still the prevailing
attitude. In Belgium, for example, the model can still
be prosecuted for violation of public morals.
Accordingly, the manufacture and trade in pornography was
constructed as an offense against decency.
When liberalizing the pornography law
in the Dutch parliament was debated in 1984, arguments based
on questions of morality or decency hardly played any
role. Discussion of the possible effect of pornography
on the consumer was restricted to concern that pornography
might encourage sexual violence or discrimination against
women. On the other hand, the fear that female models
may be abused and exploited for the manufacture of pornography
had become the key issue. Members of progressive
Democrats (D66) and Christian Democrats (CDA) proposed making
the trade of pornography involving abuse or exploitation of
models illegal. [*46] These legal redefinitions would have made certain instances of
pornography trading into crimes of abuse.
The distribution of child pornography
can certainly be classified as a crime of abuse. In the
prohibitions against distribution of child pornography, as
those in the U.S.A. and England in 1977, in Denmark in 1980,
and in the Netherlands in 1984, the criterion of obscenity was
absent. Professor T.M. Schalken, a Dutch expert on
pornography law, expressed it as follows:
The question is not whether looking at photographs
offends the moral sensibilities of the person looking, but
if the co-operation of children in sexual conduct damages
their sexual integrity. They are protected by the new
article 240b (the prohibition on trade and public display of
child pornography). We should not concern ourselves
with those whom we may judge in moral terms, but with those
who actually need our protection. [*47]
The U.S. Supreme Court confirmed this
in the case New York v Ferber, with the reasoning that
punishing child pornography did not depend on the question of
its obscenity, a criterion which applied to pornography in
general:
Here the nature of the harm to be combated requires that
the state offense be limited to works that visually
(italics in original) depicts sexual conduct by children
below a specified age. [*48]
The Law in the Netherlands
When the current Dutch Penal Code took effect in 1886, it
reflected the liberal political climate that had been
inherited from the previous two centuries and that dominated
intellectual circles throughout most of Europe. [*49] The law makers did not see it as their duty to combat
voluntary moral decay. The government sought to
intervene only when the sexual integrity of persons or public
order was threatened. Article 240 of the new law
prohibited the public distribution of "leaflets"
[*50] that "offend decency." [*51]
The political turnaround was not far
away. [*52] As long as the franchise was limited to the small, taxpaying
elite, the liberal parties dominated the political
scene. But the extension of the franchise, starting in
the 1890s, benefited both the Socialist and Christian
parties. The increase in the number of seats of
religious parties in parliament had an effect on the morality
laws.
The devoutly Roman Catholic Minister of Justice,
Mr. Regout, defended his law for combating immorality [*53] with references to the escalating moral degradation which,
according to him, the land was falling prey to. The sale
of all pornographic material, text and image, was prohibited,
and offering of commercial pornography to youth under 16 was
forbidden. In 1936 the limit was increased to 18 years
and non-commercial pornography was brought under the
prohibition. Although according to the law, persons 16
and over were permitted to engage in (hetero)sexual contact,
they were no longer permitted to look at depictions of it; and
for that matter, were also not permitted to use
contraceptives.
In the meantime the Supreme Court was
able to draw certain limits on the all too zealous
prosecutorial activity of the Public Ministry of Justice. In
1927 this court determined that public exhibition of naked
images was not automatically forbidden. Nudity itself
was not taken to be offensive to decency. [*54] It also established precedent to make an exception for the
arts and science (the exceptio artis et scientiae) that
work with a serious scientific or artistic value became exempt
from the prohibition.
A formal relaxation of these articles
came eventually in 1986. However, by that time the
judiciary had passed the legislature. The 1960s had
given rise to a rapid shift of attitudes towards sexual
morality in a more libertarian direction, and the judiciary
adjusted its practices accordingly. After a number of
controversial judgments in the lower courts, the Supreme Court
took the critical step. In a decision over Chick,
the "sex magazine for the worker," the Court
determined that text or an image could be classifiable as an
offense against decency if "an important majority of the
population" considered it as such. [*55]
The result was that judges could no
longer rely on their intuition to determine if an image was
offensive. Furthermore, the opinions of the "large
majority" were rapidly becoming more permissive.
The effect of this decision was effective elimination of the
prohibition on pornography. The effect on law
enforcement can be documented: between 1961 and 1970, 447
convictions for offenses against the anti-pornography articles
were made, between 1971 and 1980 there were only 135, of which
only 13 occurred after 1976. [*56]
An attempt by the Minister of Justice
A.A.M. van Agt to resist this progressive tide by prosecuting
sex film theaters backfired. In the decision over the
hard porn film Deep Throat, the Supreme Court in 1978
determined that the non-public exhibition of pornography to
persons above 18 years of age, after informing the viewers of
the nature of what they are about to see, is not punishable.
[*57]
Indeed, one may assume that someone who goes to see such a
film after being informed of its contents will not be offended
by it. In 1984 the Supreme Court carried this further by
finding the postal distribution of child pornography on order
not punishable: the recipients, after all, had ordered the
material and it can therefore be concluded that they would not
be offended by it. [*58] The Deep Throat decision had hollowed out the
anti-pornography law: while the law remained on the books it
was in fact an ineffective relic of past morally righteous
times.
Attempts to adjust the law failed
twice. The advice of the government advisory commission
for morality laws, under the chairmanship of the professor of
law from Leyden University, A.L. Melai, [*59] collided with the stubborn inflexibility of the Minister A.A.M.
Van Agt, a conservative Catholic.
Van Agt's successor,
J. de Ruiter, accepted the advice for a large part, but in
1981 was confronted by the rising influence of the feminist
movement which typified pornography as an incitement to sexual
violence and discrimination against women, and also pointed
out the absence of attention in the law to child pornography.
[*60] In 1984, De Ruiter's successor, F. Korthals Altes, was able to
carry the new law through the Lower House despite the vote
against by all members of the religious parties. The new
law took effect in 1986, bringing us to the current position
in the Netherlands. Today the following acts are
punishable:
The Law in Other Places
At about the same time in most other countries the existing
pornography laws became more sharply defined. In the United
States, where the judiciary can declare a law invalid on the
grounds that it contravenes the Constitution, [*61] first amendment protection for pornography was eliminated by
the 1973 Supreme Court decision in the case of Miller v
California. [*62]
The Court formulated the criterion of "obscene,"
which became the basis for this exceptionalism, as material
that "appeals to the prurient interest of the average
person" and that the images are "patently
offensive." After 1982, however, these requirements
were no longer necessary as a result of a decision by the same
court in the case of New York v Ferber. Child
pornography enjoyed no constitutional protection, nor was the
exceptio artis et scientiae any longer applicable. [*63]
In the United States and the
Netherlands laws were kept in place which prohibited the sale
or public display of films or photos that offended
decency. Although the laws did not mention child
pornography specifically, these items were included, so the
sale and public display of child pornography could to some
extent be prosecuted under these general laws. In
Denmark the situation was different, since the sale of
offending material, including child pornography, was not
illegal. The anti-pornography laws had been repealed in
1967 (for writings) and 1969 (pictures). Sweden had
followed in 1971. [*64]
Both countries retained prohibitions of undesired
confrontation with pornography. A booming trade in
pornography was the result. However, the boom petered
out when Sweden and Denmark got fiercer competition from other
pornography centers, for the large part Germany and the
Netherlands. The general increase in freedom to publish
led to the appearance of material in the media and in ordinary
shops that was once available only in specialized pornography
shops. The need for such specialized shops diminished
rapidly in Denmark and Sweden.
A Gap in the Market
Some pornography dealers were quicker to find the gaps that
the law had left open than the legislative members
themselves. The Dane, Willy Strauss, one of the first
legal pornography dealers, boasts:
At most of the shops in Copenhagen there was only one
kind of pornography to buy. I saw very early on that
there was something better than ordinary pornography
... In 1971 I was the first to sell child magazines,
at least with photographs. [*65]
In fact, although Strauss was one of the
"pioneers" of this market, he was not the first as
we shall see later. Child pornography appeared in 1970,
almost immediately after the prohibition had been repealed.
Other than the United States, where
public sale of child pornography brought Congress into action
almost immediately, the trade in a number of European
countries, including Sweden, Denmark, the Netherlands, and
West Germany, was able to proceed for a decade without any
resistance. Although the trade was much smaller than the
trade in adult pornography, a small boom of sorts did take
place. There was no sign of public indignation.
The Dutchman Joop Wilhelmus had a run in with the police after
the publication of his first child pornography magazine, Lolita.
[*66] However, after the Chick decision, activity from the
police and the Justice Department against such pornography
receded. Under the Minister of Justice, van Agt, trade
in pornography was treated as a question of offense against
decency and the Department of Justice therefore concentrated
on pornography films with adults in theaters for the greater
public, [*67] where this offense was considered to take place on the largest
scale.
There was in the Netherlands, as
elsewhere, little tradition in fighting child
pornography. Social developments, [*68] including the report of the Melai commission, made it unsure
if child pornography was offensive for an "important
majority of the population" (the criterion of the Chick
decision).
Until the 1970s there existed film censorship
for all ages, making it possible for the Dutch government to
prohibit films in which homosexual contact between adults and
minors was suggested, such as Schermerhoorn and IJ
dijk, both directed by Matthijs Seip. In the 1970s,
however, puberty sex taboos were broken. [*69] Eva Ionesco (12), Laura Wendel (11) and Martin Loeb (17) in Maladolescenza
shed their clothes, while Natasja Kinski (14), Mariel
Hemingway (13), Brooke Shields (11), Benolt Ferreux (15) and
Linda Blair (12) appeared in revealing scenes.
Prosecution for child pornography
received little attention in the media at that time, except
for some incidental reports. In November 1970 the
Amsterdam police acted against Guus Dijkhuizen, the publisher
of the booklet Mini-Love. The book contained 65
naked and sexual photos of an 11-year-old girl and a
12-year-old boy. The media were more upset over the way
in which the children were interrogated by the police than
about the book. The children had been removed from
school without the knowledge of their parents and interrogated
for a long period by two officers. Two years later
Dijkhuizen was acquitted of the charges of
"fornication" and "enticement to
fornication." [*70] He had not been charged with disseminating pornography.
[*71]
In January 1971 Joop Wilhelmus, the
publisher of Chick, was arrested for distribution of
the Lolita booklets, [*72] containing prototypical child pornography. This did not
prevent him from publishing more than 50 other issues of the Lolita
series, a magazine featuring some very young girls. In
1986 the report of the U.S. Senate Commission on Child
Pornography and Pedophilia described the magazines as
"the most notorious of the foreign commercial child
pornography," with good reason. [*73]
In 1975 Wilhelmus was prosecuted again,
this time for photographs of 12-year-old twins from the town
of Arnhem, a boy and girl. Small articles appeared in
some papers and the news died out quickly. Chief Editor
of the sensationalist magazine Panorama, Gerard
Vermeulen, called for increased penalties for the parents who
had provided the opportunity for the making of the
photographs. However, he discredited his appeal shortly
thereafter by publishing in Panorama the photographs of
a 13-year-old Danish girl who "stripped for grandma and
grampa." [*74] Those were different times.
Criminalization
Shortly after child pornography had been made punishable in
the United States, people in the Scandinavian countries began
to call for legal prohibition. Denmark and Sweden had
been pioneers in the liberalization of pornography and were
also among the first to discover the negative
consequences. A Swedish television program, broadcast at
the end of 1976, in which a forceful position was taken
against school girls posing in the nude for photographs and
the production and sale of child pornography through the
Netherlands and Denmark (who were experiencing at that time
the peak years) set the tone for the new way of thinking.
[*75]
Members of Sweden's parliament pressured for action against
child pornography. A government committee, set up to
draft rules for freedom of media other than the printed press,
produced an advisory report in which prohibition of production
and distribution of child pornography was recommended.
Criminalization followed, taking effect on January 1,
1980. The maximum penalty was set at six months of
imprisonment. [*76]
Denmark followed half a year later. The prohibition
concerned commercial distribution only and the punishment was
restricted to a fine. In both countries the legal
prohibitions were soundly prepared. The criminalization
was motivated by the need to protect the sexual integrity of
children. It was a question of protection from abuse.
Denmark was the only country where the
possible positive effects of the availability of child
pornography played a role in the political debate; it was
suggested that child pornography could serve as a outlet for
tensions that might otherwise lead to actual child
abuse. This argument was proposed by the criminologist
B. Kutchinsky. In earlier research he had shown a
connection between the increased availability of hard
pornography and a correlated decrease in reported cases on
voyeurism and sexual crimes against children. [*77] He also argued that a prohibition could give rise to a black
market.
Because of this, Denmark was the only country in
which any significant opposition to the prohibition of child
pornography occurred. The Criminal Law Committee, [*78] a permanent advisory organ of the government, after discussing
the pros and cons, went no further than to refrain from
speaking out against a prohibition. The proposal for
criminalization was eventually made law with 126 for, 22
against and 7 abstentions. Left-wing members of
parliament argued that, while they disliked child pornography,
they disliked censorship even more. They remained
unconvinced that the law would protect children.
The discussion in the Netherlands
followed a different path. The proposal of 1979 to
reform the pornography law was based on the 1973 advisory
report of the Melai Commission, [*79] which was still based on the notion that the distribution of
pornography was an offense against decency. It held that
undesired confrontation [*80] with "offensive" material (the term was retained)
should be prevented. Children below 16 years should be
protected from seeing pornography, and should even be
protected from seeing nakedness on nude beaches.
However, the last proposal didn't make it into the draft of
the law. There was no mention of child
pornography. Also the proposals of the Ministers De
Ruiter and Korthals Altes included no child pornography
clause, despite repeated pressure from the Christian Democrat
fraction. These ministers took the existing prohibition
on sex with children as sufficient to combat the production
and distribution of child pornography. That argument is,
however, questionable, since the origin of much pornography is
not known, so that tracking down and prosecuting the producers
is often impossible. It should be remembered that the
main thrust of the proposed reforms was the repeal of old and
useless legislation.
The shift in public attitudes occurred
as a result of a number of developments during the early
1980s. The passage of the proposal for reform of the
pornography law had been languishing, partly under the
influence of the feminist movement. Instead of being
sexually liberating, pornography was portrayed by feminist
ideologues as an incitement to sexual violence and hatred of
women. It was said that "pornography is the theory,
rape is the practice" with ideological rather than
empirical force. A shock effect was created as a result
of the aggressive attacks by Joop Wilhelmus on the "Keep
off my Body" [*81] refuge houses for abused women.
Among other things, he
published the confidential addresses of these centers. [*82] The result was a shift of sympathy towards the feminist
viewpoint and the politicians who argued for liberalization of
the pornography law, instead of being seen as fighters for
civil rights, became identified with shadowy figures from a
sexist underworld. The Labour Party member of
parliament, Hein Roethof, described the feminist initiatives
against pornography as "the old morality crusading in a
new disguise." [*83]
Sharp reactions in the media followed
and Roethof lost his position in the ballot in the next
election. [*84] The feminist criminologist, Yvonne Quispel, argued in the Journal
of Rehabilitation KRI for suspension of the liberalization
of the pornography bill until clarity could be obtained about
the effects of pornography on criminal behavior. [*85] The Emancipation Council agreed in response to a request for
advice from Minister of Justice De Ruiter. [*86]
The fact that the existing law had ceased to function as a
result of precedent set by the judiciary and therefore offered
complete freedom was for the most part ignored by the
lobbyists. In addition, their claims that the
pornography had become more sadistic, was not supported by
empirical evidence. A 1981 study found that 8.7% of
pornography found in sex shops carried images of violence,
while 3.1% comprised child pornography. [*87]
When Korthals Altes in July, 1984 let
it be known that he wanted to go ahead with the reforms, still
without any mention of child pornography, pornography had
already been reconstructed as suspect and potentially
dangerous. Nevertheless, while all the non-religious
parties were in accord with the proposal, they had become
conscious of the opposition. The Democrats (D66), with
the Christian Democrats (CDA), came up with a proposal to
criminalize the distribution of pornography which had been
made by committing a crime. This proposal would have
automatically included at least some child pornography. [*88] The minister argued that this was not necessary since the
distribution of such pornography already fell under "heling,"
[*89] and was thus already punishable. [*90]
A proposal sent in by the NVSH [*91] and the COC
[*92] received a great deal of sympathy in the Lower House. As
long as people were not concerned about the notion of
"offensiveness," but about publications that incited
violence, hatred or discrimination against women, then it was
the latter that should be combated. [*93]
The minister considered, and later accepted, a bill to this
effect, which in 1987 was at last presented to the parliament.
[*94] This reflected the prevailing atmosphere, wherein the
legislature felt compelled to make gestures of goodwill to the
opponents of pornography. In this climate a blanket
prohibition on child pornography was likely to receive wide
support.
The eventual criminalization of child pornography and
turnaround in public attitudes had a lot to do with the series
of spectacular child pornography police raids in Amsterdam sex
shops. The debate in the Lower House took place while
the memory of the first Amsterdam raids was still fresh.
Korthals Altes added to the proposal a prohibition on child
pornography: Article 240b of the Penal Code made the
dissemination and public display of child pornography a
crime. The maximum penalty was set at three months in
jail or a fine of ten thousand guilders.
The text of the article read as
follows:
The manufacture, import, export, transport or holding in
stock of images for distribution or public display, or the
distribution or public display of images, or the information
storage device containing such images, of sexual demeanor,
involving a person who has apparently not yet reached the
age of 16 years, shall be punished with a prison term of at
the most three months or a fine of the third category. [*95]
This article was added to the new law
at the last moment during debate in the Lower House.
Because of this, caution with the formulation of wording with
respect to the meaning of "sexual demeanor" [*96] was insufficient. The written preparation and the advice
of the Council of State [*97] were missing, and so the proposal was only handled verbally in
the Lower House. [*98]
The members, Rempt-Halmmans de Jongh (liberal), Kosto
(social-democrat) and Groenman (democrat) made attempts to
nuance the formulation. "Innocent" images,
namely ordinary photographs of naked children should not fail
under the prohibition. According to Mrs. Groenman, in a
comment that passed unchallenged in the House, "There
are, after all, pedophiles and they find naked children
beautiful," [*99] a comment that would no doubt have cost her the following
election had she been an American Congressional
Representative. The minister later indicated in his
memorandum of reply to the Senate, the intended connection
with child abuse:
The determination is intended to render illegal any
expression that arises as a result of the abuse of a child,
including those that are stored in electronic media. [*100]
For the neutral observer it would have appeared that the
nuance in the approach of Minister and Parliament had set
limits to excessive use of the law. Photos that had not
been made as a result of the sexual abuse of children would
not become the object of prohibition. At least, that is
what it looked like.
The Problem of Definitions
If there is a market for child pornography, what are its
characteristics? We begin this analysis with a
definition of terms "child" and
"pornography."
What is a Child?
To be more specific, we are interested here in the question
of what counts as a child for the purpose of appearance in
pornography. [*101] This issue raises the problem of comparison between nations,
since the ages of consent for appearance in pornography vary
from one country to another. In Europe this is usually
the same as the legal age of consent for sexual contact: 13 in
Scandinavia, 16 in the Netherlands.
As long as the
identity of the child remains unknown, the limit in practice
is lower: the child depicted shall only be regarded as a
"child" (Danish law) or be taken as "apparently
below the age of 16 years ..." (Dutch law), if the child
is clearly below the age of consent.
The American law of
1984 attempted to get around this problem by increasing the
age limit to 18 years. Effectively this would raise the
age of consent "probably not to 18 years, but perhaps to
16." [*102] The American law that came into force in August 1989 requires
that the names and birth dates of all models appearing in
pornographic publications be registered, so that the age can
be checked, and in the absence of registration the age would
be taken to be below 18 years.
The differences in age limits means
that material which is considered child pornography in the
United States is not necessarily defined as child pornography
by European law. This was brought home to the American
(governmental) task force on child pornography in January 1985
when they handed over to their Danish colleagues material
which had been seized by the U.S. Customs as child
pornography. They were told that, according to the
Danish law, the material was not illegal. [*103] Since the amendment of 1989 the difference between American
and European definitions has become too great for official
statistics to offer any meaningful comparison. American
statistics on the trade, seizures and prosecutions cannot be
regarded as an indication of the trade in child pornography
for current European understandings.
What is Child Pornography?
The term "child pornography" is misleading.
Ostensibly it is a form of pornography in which one or more
children appear. However, the term is often used to
refer to images which would not be regarded pornographic had
the person depicted been an adult. One general criterion
for pornography is its offensiveness to decency or, as in the
U.S. precedent Miller v California, material depicting
children which is "obscene." With the
establishment of child pornography distribution as illegal in
the Netherlands it was always clear that the
"offensiveness" was not the criterion. This is
by implication confirmed by the fact that the notion of
"offensiveness" is not taken up in the article 240b
of the Penal Code (the article on child pornography), while in
the article 240 on pornography in general it is
retained. Thus a photograph of a naked child does not
have to be offensive to fall under the prohibition. The
impression given by the words "child pornography,"
that the law only concerns photographs in which children are
being sexually abused or are engaging in offensive sexual
activity, is not correct. Other criteria, however, need
to be satisfied. In the Netherlands, the photograph
should depict "sexual demeanor."
The criteria, both in the United
States and in the Netherlands, have been broadly
interpreted. In New York v Ferber the Supreme
court declared the "exceptio artis" not
applicable to depictions of naked children. [*104] The Dutch courts have not made a determination on this matter,
however, the Minister of Justice declared to the Senate during
the debate over article 240b that prosecution of works having
undeniable value as works of art was excluded. [*105]
The question of what criterion can be used to judge if a
photograph of a child has such undeniable artistic value has
not been answered. Nevertheless, the jurisprudential
expansion of the definitions which has taken place in the
United States has followed a roughly parallel course in the
Netherlands. In essence the illegality became a function
of the intended effect of the image on the viewer; images that
the court judges were intended to arouse the viewer have
become illegal.
The American legislature that wrote
the first federal child pornography law in 1977, intended to
prohibit images of sexual demeanor including "nudity, if
such is to be depicted for the purpose of sexual stimulation
or gratification of any individual who may see such
depiction." [*106]
The Department of Justice was not pleased with the
formulation, for it would be impossible to decide upon a
criterion for "sexual stimulation or
gratification." Nevertheless Stanley [*107] shows that the judiciary has used the same criterion which was
rejected by the Justice Department in the cases United
States v Dost [*108] and United States v Wiegand.
[*109] The American Federal Law, therefore, has been stretched and
the result has been sentencing on the basis of the opinion of
a judge that the maker intended the work to be sexually
stimulating. Current American practice is quite
unrestrained in the prevailing climate and simple naked
photographs of children are no longer exempt from prosecution.
Developments in the Netherlands are
parallel. The original circumspection in the formulation
of the law has not been respected by the judiciary. This
is the result of the decisions of the Supreme court in the
case of the Ministry of Justice v Donald Mader. [*110] The Supreme Court accepted "an image of a youthful person
in such a pose that thereby apparently the stimulation of the
sexual arousal was intended" as satisfying the criterion
of "sexual demeanor." [*111]
This definition had been proposed by the De Wit child
pornography work group which had been established by the
minister of Justice in 1985. [*112] The definition finds a counterpart in the American
jurisprudence in the cases Dost and Wiegand.
In both the U.S. and the Netherlands, the judiciary gave their
own interpretation of the law and sought a criterion for the
prohibition of child pornography in the moral effect on the
public and the consumers, namely, the arousal value of the
images.
Pornography here concerns photographs
and films. In the Netherlands, drawings also fall under
the prohibition "because serious consideration may be
given to the possibility that the drawings are not made
directly from the imagination." [*113] There has been no prohibition on pornographic text in the
Netherlands since the change of the law in 1986; including
text about sex with and among children. In the U.S. at a
federal level there is no specific prohibition on drawings and
text, although they would be prohibited if they satisfied the
criterion for "obscenity" formulated in the Miller
v California decision.
It is obvious that the laws and
jurisprudence offer little ground for an objective analysis of
the trade in child pornography. Not only is it difficult
to compare the facts from one country to another because of
varying definitions, but the legislature and judiciary have,
in the course of the years, stretched the definitions.
This has reached a point where, in principle at least, all
naked photographs, including the photographs which one is
likely to come across in art galleries and family albums, fall
under the prohibitions. Without a consistent and
specific definition, any attempt to measure the volume of the
trade is a hopeless undertaking. It would be more useful
to use the description given by Korthals Altes during the
verbal debate over article 240b in the Lower House, which
seems to have been forgotten since then:
Mrs. Rempt (VVD; Liberal party) has enquired about the
notion of' sexual demeanor. She is concerned that this
would be too loosely interpreted. I am assuming a
reasonable application of the law by the judiciary. I
believe it is sufficiently clear that this is not about
innocent behaviour. One must realize that it concerns
material that is sold in sex shops. It seems to me not
unlikely that this also includes much innocent
material. In any case it is certainly not the
intention of this formulation. [*114]
As a result, material which is for sale in sex shops can be
viewed as (commercial) child pornography, despite the fact
that much of this material is, indeed, quite innocent.
For example the Danish magazine Boy (published by COQ
in Holbaek), of which dozens of issues appeared, contained
overwhelmingly ordinary naked photographs, often taken
outdoors in a nudist setting.
The Volume of The Trade
American Import
Two distinct categories of claims are made about the extent
of the trade in the United States — the claims not based on
research and others which are. The first category
includes claims that the trade was valued at millions and even
billions of dollars. The second category includes the
Senate Commission under William V. Roth, which investigated
the trade and came to the conclusion that the most generous
estimate of the value of annual import to the U.S. was $5
million. The commercial child pornography which had been
seized in the U.S. did not even reach the neighbourhood of $5
million, according to the Commission. [*115] The Roth Commission also determined that there was no evidence
for the existence of large underground networks of commercial
traders, despite the claims regularly made in the media and
some official documents. Child pornography was made
almost exclusively for private use by the makers:
The fact is that the overwhelming majority of child
pornography seized in arrests made in the United States has
not been produced or distributed for profit. [*116]
Estimates of the extent of the total
pornography trade in the U.S. range from $1.5 billion to $8
billion per year. [*117] The high estimates come from Robert Showers, head of the
National Obscenity Enforcement Unit of the American Ministry
of Justice, established as a result of the Meese report.
The unit had the tendency to estimate the pornography problem
as being much greater than it is. The actual turnover of
the retail trade, including much soft pornography, is
therefore more likely to lie closer to the lower figure.
[*118] Roth's most generous estimate implied that the total import of
child pornography to the United States was at the most 0.33%
of the total American pornography trade.
That is less than the Work group on
child pornography of the Dutch Ministry of Justice had
suggested. This group, chaired by the Amsterdam Officer
of Justice (public prosecutor) Mr. L. De Wit, had been
established with a mandate to determine the volume and
direction of the trade in child pornography in the Netherlands
as a response to the allegations on Dutch involvement made by
the U.S. administration. Before legal prosecution
occurred in the Netherlands, child pornography, according to
the work group, was said to be 1% of the total turnover of all
pornography. [*119]
If we assume that the pornography
market in the Netherlands (which in the 1970s had a population
of 14 million) was the same as the U.S. market per capita then
we should have had an annual turnover of between 100 and 500
million dollars; 1% being 1 to 5 million dollars. If a
large part, say one quarter, had been sold to Americans, then
the export from the Netherlands to the United States would
have been between 0.25 and 125 million dollars. The
Netherlands, Denmark and Sweden were, according to sources
cited by the Roth Commission, [*120] jointly responsible for 85% of the export to the U.S.
The Netherlands was said to be responsible for 70% of the
total according to the De Wit work group, [*121] which implies a total export from the Netherlands to the U.S.
of 0.42 to 2.2 million dollars. These estimates suggest
that the 5 million dollar claim of the Roth Commission should
be considered exaggerated. Further, it must be
reiterated that the American definitions are generally much
broader than the European.
Estimate of the World Trade
How realistic is the estimate of 1%? It must be kept
in mind that the statistic applies to the first half of the
1980s, by which time the sale of child pornography had been
seriously inhibited by legal prohibitions in many
countries. For an estimate of the turnover in earlier
years we have made use of an (unpublished) report of Professor
E. Braches, [*122] based on a systematic registration and dating of photograph
magazines and booklets which were available in Europe between
the 1950s up until 1984.
Individual slides and
photographs were not significant elements in the trade.
Films were not registered by Braches. He claims that his
count of European material is more or less complete, while his
count of American material has an incidental character.
Braches argues that the American production was less than the
European (although European publications typically included
photographs made in America), which agrees with the ILIC
report of 1980. His inclusion of some American material,
however, enabled him to show that child pornography became
available in the United States before Europe. The study
cannot be used as a measure of how much material was available
in the U.S.A.
Braches' study shows that production
of child pornography is largely a phenomenon of the
past. About 1980 the production almost completely came
to an end. Our count, which includes the supplementary
material from the years after 1984 up to and including 1990
which was gathered by us, is as follows: 508 magazines
contained exclusively photographs of boys and 288 magazines
contained almost exclusively photographs of girls. Since
the girl magazines are heterosexual in nature they sometimes
contain boys engaged sexually with the girls, but are counted
as girl magazines since the focus of attention is on the
girls. [*123] Between 1970 and 1980 there appeared over the entire world an
average of nearly five new publications per month. That is
less than 2% of the 264 monthly publications that
Densen-Gerber claims to have counted.
The quantity of each issue published,
the primary circulation, [*124] is difficult to assess, since no statistics are available
except those of the producers, which we have accepted as a
good guide in view of the fact that they do not differ
significantly from the claims made by the principal
institutional opponents of child pornography.
According
to Joop Wilhelmus, who published the Lolita series,
25,000 copies of each issue were printed at the high point
which eventually sank to 5,000.125
The Danish trader, Willy Strauss, said that his first magazine
sold 19,000 copies within one week. [*126] We can assume that the market for girl magazines was greater
than for boy magazines since we would expect more heterosexual
then homosexual buyers.
According to Braches this is
also evident from the greater production regularity and lower
price [*127] of girl magazines. [*128] It seems unlikely, therefore, that the boy magazines reached
the same circulation. According to the Amsterdam
publisher of Paedo Alert News, which contained English
language stories of sex with boys, political information on
pedophilia worldwide, and some nonpornographic illustrations
of clothed boys, the primary circulation of his magazine
worldwide never amounted to more than 2,500 per edition.
[*129]
Using Braches' count, the European
production can be assessed as somewhat over 700 issues,
leaving the American and possible Asian production out of the
picture. The highest available indication of world
production comes from Stanley, in connection with a content
analysis which he was planning: [*130] 1,065 issues, including 540 issues in which at least one child
was depicted engaged in sexual activity. [*131]
If we estimate the primary circulation of each issue at
10,000, which is probably too high for the boy magazines, and
the price per magazine [*132] at $10, then we arrive at a total turnover of $106
million. The sale of films was much less in number, but
significantly more expensive per unit. If we assume that
the monetary turnover was about the same for films and
magazines, then we come to a total world turnover of $212
million. Measured over the 14 years in which significant
production occurred, this comes to $15 million per year.
This is exactly 1% of the $1.5 billion that is a likely
figure for annual retail turnover for the United States.
The $1.5 billion however, is the turnover for the middle of
the 1980s. In the 1970s, when most child pornography was
manufactured, the total pornography turnover must have been
less. On the other hand, this figure is based on the
American market only, so that the world market must have been
larger. In the final analysis, the claim that 1% of all
pornography is comprised of child pornography seems a
reasonable estimate.
These figures give no more than an impression of the order
of magnitude. In view of the number of assumptions that
have been made they should not be seen as a precise
estimate. The assumptions with respect to price and
primary circulation and the role that films played in the
total are generous, so it is very unlikely that the actual
turnover could have been much larger.
The Dutch Share of the Market
Because of the popularity of Lolita, the Dutch share
of the world market may have been relatively large. If
the average primary circulation of all 192 issues is estimated
at about 15,000, then this series alone constituted a quarter
of the total.
At the sittings of the Roth commission
of November 29 and 30, 1984 the Netherlands and Denmark were
accused of responsibility for 85% of the child pornography
import to the U.S.A. According to the De Wit report,
[*133] between April 1, 1984 and April 1, 1985 the American customs
seized 2,069 shipments of child pornography; half of the total
confiscated pornography. A maximum of 70% could have
come from the Netherlands. How reliable are these
facts? Stanley, [*134] on the basis of his count taken from the New York
[*135] Customs' lists of seized pornography came to an estimate of 25
pieces of child pornography per year. As we have already
seen, the U.S. definition of pornography is broader than the
European.
Dutch officials were also given
confiscated material: 85 packets from the Netherlands.
The Roth commission later admitted:
Dutch officials determined that only 42 had return
addresses, 16 were traced to locations outside the
Netherlands and 21 proved to be either false or
untraceable. Only five addresses appeared to be
correct, and they were of firms in Amsterdam, Rotterdam and
Dordrecht. [*136]
The De Wit work group, who mentions
eight rather than five correct addresses, conducted police
investigations. [*137] This "yielded no worthwhile results," according to
the work group, thereby suggesting that the addresses did not
lead to child pornography exporters. It is remarkable to
note that the information received from the American
government by the Dutch government has seldom or never led to
any criminal prosecution. In 1986, when the new article
240b was in force, and the number of seizures of "Dutch
child pornography" handed to the Dutch Department of
Justice by the American customs authorities was reported to be
111, one would have expected at least some prosecutions had
the material actually been child pornography.
The American "facts" also
explain how the Amsterdam police spokesman Wilting could think
that half the pornography trade concerned child
pornography. He must have received this from the
American customs. Indeed, William Von Raab, the
Commissioner of Customs, stated to the Roth commission that
"of the 4,266 pornography seizures made in the fiscal
year 1984, approximately one-half involved the exploitation of
children." [*138] This half was the above mentioned 2,069. Apart from the
reliability of the figures and the differences in definition,
the proportion of seizures obviously does not reflect the
proportion of production that constitutes child pornography.
Convictions as a Measure of the
Market Size.
The relatively small size of the market is also apparent
from the number of convictions. In the United States,
between 1978 and 1984, when prohibition only applied to
commercial exchange, 69 persons were accused and 64 sentenced
on the basis of various federal child pornography laws.
[*139] In 1984, besides trading, the premeditated receipt of child
pornography became illegal, irrespective of the commercial
element.
There were 164 convictions over the following
two years, however, these were for the most part the result of
entrapment operations by American government agencies.
Operations such as "Looking Glass" and
"Borderline" offered child pornography in order to
arrest and bring to trial unsuspecting buyers, some of whom
may not have known what they were buying, or would never have
bought any child pornography if it had not been offered to
them. [*140] In Denmark there were two convictions between 1980 and 1985.
[*141]
In the Netherlands, after the
prohibition to the end of 1988, there were seven
convictions. Table 1 shows that directly after the
introduction of the child pornography law on May 21, 1986, the
number of pornography cases rose briefly. The rise may
have been the result of the pressure on the police from the
Ministry of Justice to act forcefully against child
pornography. [*142] Convictions, however, did not result. Probably many of
the cases were difficult to prove, or the police were on the
wrong track, which is suggested by the number of
investigations that were closed without conclusive evidence
being found. [*143] After 1987, the Justice Department gave less priority to child
pornography cases, which may have been the result of the fact
that hardly any investigations got as far as the courts.
Table 1- Pornography Cases
Articles 240, 240a and 240b of the
Penal Code [*144]
Year |
1985 |
1986 |
1987 |
1988 |
1989 |
Handled by Ministry of Justice |
4 |
11 |
35 |
11 |
8 |
technical
sepot |
2 |
1 |
21 |
3 |
4 |
policy
sepot |
— |
6 |
10 |
3 |
2 |
other
[[*145] |
|
|
|
|
|
|
|
|
|
|
|
Handled by courts |
2 |
3 |
— |
4 |
6 |
guilty |
2 |
3 |
— |
4 |
6 |
acquittal
or dismissal |
— |
— |
— |
— |
— |
|
The Trade Vanishes
After 1984 the magazines and films virtually disappeared
from sight. After that date the only known Dutch
publications were the last seven issues of the David [*146] series which ran from 1983 to 1987. In particular, after
1987 another category of magazines and video films has made a
comeback: these do not show sexual activity, but rather photos
and films in a nude setting or only one child posing.
This concerns German productions in general. Our
analysis is made more difficult as a result of this
phenomenon: it is doubtful whether the photos and films
involved could reasonably be considered child pornography and,
in any case, this is not the kind of material that arouses
great interest among law enforcers. [*147]
In Germany the news and entertainment magazines Jimmy
and Philius are produced, as are the photo magazines B-Engel,
Andy and Boys Art Magazine. The latter two
first appeared in 1989; until the end of 1990 seven issues
were published of each. B-Engel dates from 1987;
between that year and 1990 14 issues came out. Philius
and Jimmy contain mainly news, book and film reviews,
and short stories, and are illustrated with some pictures of
naked boys, though no sexual activity is shown.
It is questionable whether the dissemination of these
magazines is prosecutable. We presume that this is not
the case: the publisher, Medium Verlagsgesellschaft in
Berlin mentions its address, telephone and bank account
numbers in the magazines, rather than keeping them secret, and
it also uses the official International Standard Serial Number
(ISSN) for its publications. Moreover, many books which
contain photos of a similar nature are offered and sold
freely, both in Germany and the Netherlands.
We have not included these books into our count. The
reason is that the magazines are largely traded through sex
shops, whereas we have encountered the books only in regular
book shops. Since the magazines show only marginally or
non-sexually explicit pictures, our definition of "child
pornography" is indeed very wide. The inclusion of
the German productions in our tallies (see Appendix
A) may suggest that child pornography trade is re-emerging
in Europe. However, in view of the marginally-sexual
nature of the material and its relative scarcity, this
conclusion would be exaggerated and premature. Moreover,
a return to the heyday of the 1970s is very unlikely because
of the prohibitions that have since been introduced in many
countries.
In Jimmy, nude pictures of young boys are offered
for sale. These do not show sexual activity either,
although in some of them the boys do have an erection.
Furthermore, another German publisher sells videotapes.
From the brochure it appears that these do not show sexual
activity either, at least not with persons who are apparently
under 16 years of age. Exceptions are a series of eight
Japanese tapes (the age of consent in Japan is reportedly 13
years) and some other tapes that have been recorded in
South-East Asia. However, the age of the Asian boys is
easily underestimated by Europeans.
Police investigations of pornography
businesses sometimes discover small stocks of old leftover
material being sold from under the counter. Apart from
that, there is the informal swap circuit, but no reliable
estimate of the extent is possible except to note that the
volume "traded" in this manner must be small.
Despite the policy of decisive police intervention in cases of
suspected sex with children the number of cases where
pornography has been discovered and sold remains
incidental. One case concerned four Englishmen operating
in Amsterdam. [*148]
In 1990 a Dutchman was arrested for mailing videotapes to the
United States for $200 to $300 each. The tapes, as could
have been predicted, had been intercepted by the U.S. Customs.
[*149] He got a suspended sentence of three months and a fine of
3,500 guilders (about $l,700). [*150] The identities of the children were never established, and the
opinion of a pediatrician was used as evidence that the models
were below age 16.
In any case, the major channels for retail trade of child
pornography, the pornography shops, were as good as closed by
the middle of the 1980s. After the published magazines
vanished the amateur photographer, Fred V., who had been one
of the suppliers during the peak years of the industry,
continued to sell photographs to a small circle of individual
contacts after the disappearance of commercial channels.
In 1988 he was arrested and sentenced, but the charges were
for the sexual activity ("fornication") arising from
the making of the photographs and films, not for the
dissemination thereof. A second case against him for
trading in child pornography never eventuated, despite
attempts over two years by the Public Ministry of
Justice. The photographs and films which were implicated
in the criminal proceedings against him were apparently not
traded on any significant scale.
It is clear that the new laws and the
actions of the Justice Department have essentially eliminated
the trade in child pornography. Indeed, the new
prohibitions had been immediately effective in every country
where they had been enacted. The sales were of such
insignificant volume for the pornography dealers that the
advantage of trading was greatly outweighed by the
disadvantage of the increased risks. That is confirmed
by the absence of criminal prosecutions, despite the efforts
of the police and the Justice Department. The opinion of
the Officer of Justice in Utrecht, that three months' jail was
such an insufficient disincentive that the "commercial
lads waltz whistling into the jail" [*151] seems not to be based on an adequate understanding of the
facts.
The Production
The Method
According to the De Wit work group, child pornography is
both made by individuals and published commercially. In
recent years, according to De Wit, the commercial material is
no longer available. [*152] That is not entirely true as we shall see. The privately
made material may be retained by the individual photographer
for personal use only, or may join the informal
"swap" circuit, or it may be sold to commercial
producers.
The work group suggested that the American
claims that 70% of all commercial material comes initially
from private sources was correct. Typical of this
material is the generally poor quality, and usually black and
white photographs. The photographs were apparently not
made with publication in mind. One may also conclude
that a small price was paid for the photographs: [*153] Joop Wilhelmus offered a gift magazine in exchange for each
photograph received from his readers, as became evident from
his correspondence with the U.S. undercover agent, Toby Tyler.
[*154] In the magazines Wilhelmus also offered $350 for the
opportunity to take the photographs himself. [*155]
An example of commercial production is
reported in the final report of the Roth Commission.
[*156] The British citizen, Eric Cross, invited two Florida girls of
10 and 11 for a holiday excursion with the knowledge of the
parents. In a hotel he made hundreds of naked
photographs of them, returned them to their parents, and left
for Amsterdam with the exposed films. Some of the
photographs were intercepted in a photolab in Amsterdam and
handed over to the police. Cross was arrested, found to
be wanted in England, and was handed over to the British
authorities. He was eventually brought to Florida where
he was sentenced to 28 years and after an escape and rearrest,
to another 95 years. Apparently not all the photographs
were seized, and a number of them were published in three
booklets titled Linda and Patty, which according to the
title page was produced by Delphi Press in Copenhagen.
In the case of Cross, the commercial
aim was clearly premeditated. This is not so with the
majority of the material found in commercial
publications. Examples of leakage of private photographs
into the commercial trade are easy to find. In the
Netherlands between 1983 and 1987, the series which appeared
under the title David, contained photographs which came
from the collection of a private individual who, apparently,
never intended them for publication. [*157] After his death the photographs fell into the hands of a
relative who turned them to profit.
Almost all other magazines consisted of photographs sent in
by individuals. In order to avoid criminal proceedings
for indecent assault or sexual abuse of children, some
publishers used only photographs made in other
countries. The same applies to films. Many films
were produced by the firm COQ in Holbaek in Denmark,
under the title Golden Boys. The ambiance (clothing,
landscape, housing style) of various films we saw suggests
that these were made in the United States, possibly in the
West.
One of the most active photographers
of the naked child in the Netherlands was Fred V., [*158] who worked under the name of Akki. In September of 1988
he was arrested when a client of his attempted to bring
photographs into the United Kingdom. The arrest of three
Dutchmen, friends of Fred V., followed: Chris, Anton, and
Ferdinand. [*159] Ferdinand and Anton had often visited Fred in the company of
their young boy friends. This case, which would be
described as a child sex ring operation by Kenneth Lanning,
[*160] is fairly typical of situations that lead to pornographic
photography of children and, in the past, the leakage of the
photographs into the commercial circuit.
The story of this affair is described
below (Child Sex Ring Discovered), an analysis of the police
dossier is set out in Appendix
D, and interviews with three of the boys in Appendix
E. The media images of very small children,
kidnapped, drugged, violently sexually abused, often alleged
to have been subjected to bizarre perverse abuse before being
murdered and buried in deserted places, [*161] are as exaggerated as the claims of millions of children and
billions of dollars.
For example, according to Kenneth
Herrmann of DCI: "The hundreds of millions of children
involved in this broad problem all suffer irreparable
damage" (our emphasis). [*162] While we do not in any way condone the exploitation of the
boys in this case, the facts which emerge from our
investigation into the way in which the children themselves
experienced their involvement provide a more balanced picture
of reality than popular views about child pornographers and
their victims suggest.
Here we are concerned with the modus
operandi of Fred V. Apart from the photographs he made
for the pornography trade, he also worked for ordinary youth
magazines which gave him a degree of legitimacy and easy
access to events where many children participated. The
international youth soccer tournament in Oslo, the Norway
Cup, was one of his regular assignments. Here he
had access to the changing rooms to take photographs.
However, at these events he produced no hard
pornography. He dealt commercially in his non-hard core
work.
During the 1970s he earned money from these
activities, but donated it to charities, among others, Mother
Theresa and third-world children. [*163] While he cannot be accused of large scale commercial
production of child pornography, he is certainly guilty of
abusing the trust of many boys and their parents. Fred
V. knew how to get on with boys, and was often away on camping
trips with groups of boys, with the knowledge of their
parents.
The parents did not suspect that his caravan (travel
trailer) served as a mobile pornography studio. Fred V.
encouraged the boys to play sex games with each other, which
he then filmed and photographed "as part of the
fun." Some of this material was hard core, showing
the boys engaged in a variety of activities. The boys
were told that the photographs were exclusively for Fred V.'s
own use and would not be disseminated. Later one of the
boys said that he was disgusted by what he had been doing, and
several others expressed regrets, although it is not clear how
much these statements, which were made to the police, had to
do with the discovery of the activities and the way in which
the boys were interrogated.
The photographs and films show the
boys entering vigorously and with pleasure in the sex games.
[*164] In this case, all three boys we interviewed felt themselves
more abused by the police than by Fred V., whom they
nevertheless saw as someone who had broken his word and
exploited their trust. [*165] The boys trusted Fred, as did Ferdinand and Anton.
Ferdinand and Anton knew that photographs were being made,
however, they had nothing to do with the distribution of
pornography. Nevertheless, they must have known about
Fred V.'s publications under the name of Akki, and were at
least a little naive not to think that he might be exploiting
their trust. In any case, both they (jail sentences) and
their boy friends (frightening police interrogations) have
suffered for these follies. Fred V. obtained no sympathy
from the boys whom he had duped.
The result of police and judicial activity was that the
supply of new photographs vanished. It cannot be known
how much commercial production might have continued to take
place had the supply of new material been maintained.
The last issues of Lolita contained mainly reprints of
old material and urgent pleas for the readers to send in new
photographs. There was no reply and this was apparently
one of the last straws to break the back of the commercial
industry.
The Number of Children
The only way to estimate the number of children who have
been involved in the production of child pornography is by
counting the faces which appear in the magazines and
films. There are several problems, including the
possibility that the same children may be difficult to
recognize from one publication to the next due to such factors
as age change between photo sessions, differences in the
setting, absence of the face or other recognizable
characteristics, [*166] and so on, so that double counting is likely to have occurred.
[*167]
In Appendix
B is the result of our counting which came to an average
of 11.1 new children per magazine. On the basis of the
estimate of 1,065 published magazines, this implies almost
12,000 children have been associated with child pornography in
some way or other. The films have not been counted,
however, the number of children appearing in the films is much
smaller than in the magazines, usually no more than two per
film, and furthermore the film actors are often depicted in
the magazines. [*168]
The figure of 12,000 is likely to be too high, first
because of the double counting. Also, the sample we used
for our analysis, unlike the complete set used by Braches, did
not contain pirate publications, although these were also made
and of course do not represent any new children.
Furthermore, we counted all the children who appeared in the
magazines, including children in fully clothed portrait
photographs who may not have appeared in any naked or
pornographic scenes.
Moreover, of Stanley's 1,065
magazines, only 540 contained photographs in which sexual
events were taking place. The balance contained "at
least one depiction of a minor engaged in lewd or lascivious
'exhibition of the genitals'." If we multiply 11.1
by 540, a likely estimate of the children involved in sexually
explicit pornography, to which the remaining magazines add
only incidentally, we arrive at about 6,000.
Furthermore, since many of the children are depicted in more
than one magazine, often in more than one series, the number
of new children discovered tended to decrease as we progressed
through the material at hand. Therefore, our figure of
11.1 should not be extrapolated to all magazines.
Stanley [*169] estimated 5,000 as the minimum number of children. In
view of our counting, an estimate of 10,000 as a maximum seems
not unreasonable. We can say, therefore, that the number
of children involved must lie between 5,000 and 10,000.
This number comes nowhere near the estimates of Robin Lloyd
(300,000 boys) and Densen-Gerber (1.2 million), for the United
States alone. Nevertheless, 10,000 children is an
impressive figure. The child pornography problem may
have been crassly overestimated by some, but it is also not
possible to dismiss it as negligible.
The statistics in Appendix
A make it clear that the Netherlands was not simply a
trading land in the past, as the De Wit report asserted.
The Netherlands was, alongside the United States, Great
Britain, Germany, Denmark and Sweden also a producer and, as
we see in Lolita, responsible for some of the hardest
material. Important people in this industry were Joop
Wilhelmus and Fred V., both Dutchmen.
What There Is To Be Seen
Child pornography has been called the "epitome of hard
core pornography." [*170] There may be some justification for some of these sentiments,
especially when we consider the manner in which some children
have been exploited for the production of the pornography, but
these cries of indignation do not tell us what the pornography
actually contains. Statements made by the police suggest
that the pornography must be terrible. According to the
Officer of Justice R.A.M. Behling, making an inventory of the
pornography in the V. case was not fun:
"It was
horrifying. Every hour the officers had to stop work and
let another take over." [*171]
We spent many days on end making our content analysis
without the need to stop every hour. Nevertheless, in
view of the obvious abuse depicted in some of the magazines,
we can identify with the claims of some officers. The
impression that one forms from looking through large amounts
of child pornography are, of course, highly subjective.
By far the majority of the material was neutral, except
perhaps for people who might be offended by the fact of
nakedness. While the pictures of laughing children
posing naked on beaches are quickly forgotten, the anger that
arises from seeing some photographs of a small girl forced to
suck a large phallus and to submit to penetration with a coke
bottle, or the series depicting the anal rape of a teenage
boy, leave one disturbed and angry for a long time.
Our content analysis is an attempt to objectively establish
the hardness of child pornography. We have used a
hardness scale as follows:
0. |
Clothed or portrait. |
1. |
Naked, but not posed. Many of these were
nudist-type photographs. The children in these
photographs gave no sign of being aware of the
camera and were usually depicted engaged in other
activities such as swimming or playing ping pong,
etc. |
2. |
Naked and posing. The children here were
looking at the camera or had adopted a self
conscious pose. |
3. |
Naked with genital contact or contact with another
body. These included photographs where a hand
was in contact with the genitals, and photographs
showing naked children hugging or kissing each
other. |
4. |
Oral contact with sex organs. |
5. |
Penetration, either anal or Vaginal. |
6. |
Bizarre. This last category contained
material with a sadomasochistic character, urine
sex, and photographs on which objects were
introduced into the body orifices. |
Appendix
C contains a more detailed breakdown of our results.
Our main conclusions are given in Table 2, in which the
distribution of the photographs over the seven categories are
given. The categories 1,2 and 3, in which no sexual
activity can be seen, comprise 62% of photographs. With
boys, this is 68%, and with girls it is 55%. The hard
pornography, being categories 4,5 and 6, incorporates 18%,
with 9% for boys and 26% for girls.
Appendix
C shows the statistical comparisons for boy versus girl
magazines, the land of origin, and the comparison of
photographs where one child appeared to photographs showing
two or more children, and to photographs in which adults also
appeared.
The pornography in the girl magazines
was found to be significantly harder than in boy magazines.
[*172] Denmark and the Netherlands received significantly higher
scores with respect to hardness, and Germany scored by far the
lowest. In the German material we analyzed, almost none
of the photographs contained explicit sexual activity.
Photographs containing two or more children were
significantly harder than photographs depicting only one
child. More interesting is the finding that photographs
with adults, 22% of the total, were significantly harder than
photographs with two or more children. This was
particularly marked with girls.
We attempted to judge how the children
experienced the photography sessions by analyzing their
expressions. There were difficulties with this
exercise. First, the interpretation of facial expression
is subjective. We found it difficult to tie the scoring
to objective criteria. [*173]
Some of the photographs did not show faces, many of which fell
into category 6. We attempted to solve this problem by
counting only those photographs in which the expressions were
unambiguously happy, and those that showed unequivocal pain or
fear. As a result 81% of the photographs remained
unscored. Of the remainder, 18% were characterized by
obvious pleasure and laughter, while 1% showed negative
reactions. We conclude that the comments of the police
spokesman Wilting, "The horror radiates from their
faces," are a rather one-sided interpretation. Further
conclusions we believe, cannot be drawn.
Table 2- Division of Photographs
in the Sample
|
Boys
|
Girls
|
Total
|
0. Clothed |
800(17.3%) |
85 (1.5%) |
885 (8.5%) |
1. Naked |
1120(24.2%) |
917 (16.2%) |
2037(19.6%) |
2. Posed |
1249(27.2%) |
2155 (37.5%) |
3404(32.8%) |
3. Contact |
1030(22.2%) |
1096(19.1%) |
2126 (20.5%) |
4. Oral |
218 (4.7%) |
490(8.5%) |
708 (6.8%) |
5. Genital |
192(4.1%) |
922(16.1%) |
1114(10.7%) |
6. Bizarre |
21(0.5%) |
75 (1.3%) |
96(0.9%) |
|
|
|
|
Total |
4630(100%) |
5740(100%) |
10370(100%) |
|
Snuff Films
Our content analysis did not include film and video
material, nevertheless, we are able to draw some conclusions
about films and videos. The film material, usually super
eight, generally dates from the 1960s and 70s and comes
largely from the U.S.A., though some films were made in
Europe. The video material is more recent, is usually of
very poor quality, and is circulated through informal
channels. One of the videos, typical of this genre,
showed candid scenes taken in a boys' changing room at a
sauna. It was rather innocent material, perhaps pathetic
but certainly not violent or dangerous. Several videos
show bored youths masturbating for the camera while having
difficulty sustaining their own arousal. One Japanese
video showed anal intercourse with a very young boy who was
clearly not enjoying the experience. Other videos, most
often made in private homes, tend to be similar to the films
of previous decades. The most striking unifying feature
is the poor quality.
Frames from the films were widely pirated for reproduction
in printed material so that this material has been indirectly
included in our content analysis. In almost all the
films we have seen, the children were either indifferent or
were laughing and entering into the activity with gusto.
We have not seen any films in which children are subject to
brutal or sadistic rape, although some of the photographs we
analyzed suggested that this might have occurred. We
found no evidence of "snuff films." No one we
spoke to had ever seen one or knew where to get one.
Some of the collectors we spoke to have large collections
containing material from all over the world and informal
connections with many other collectors. We believe that
if snuff films had ever been made we would have been able to
trace them. No snuff films have been discovered by
police anywhere in the world, or reported in any
criminological or sexological literature that we have been
able to discover. It is our conclusion that they do not
exist.
Child Sex Ring Discovered
In September 1988 it seemed as if the American allegations
against the Netherlands must have been at least partly
true. "Pornography Airlift prime evidence for role
of Dutchmen," announced one headline on De
Telegraaf, the largest Dutch dally. [*174] A certain triumphant sensationalism rang through the article:
The discovery of a
true life air lift of young London lads who, under the
leadership of their school master Brother Leonard Jack J.,
made their way to the Netherlands to work as child pornography
models, has yielded the first unequivocal evidence that the
Netherlands has played a key role in the international
distribution of child pornography, just as the Americans have
been saying all along. The Minister of Justice Mr. F.
Korthals Altes has always denied that our country ever played
an important role in the production and distribution of child
pornography. His assertion has now had the rug pulled
out from under it according to Scotland Yard. The
Utrecht Morals Police [*175] and also Scotland Yard's inspector Baker were painfully
embarrassed to discover that the case, which they had
carefully kept out of the publicity until now, had been
discovered by our paper. [*176]
The article did not explain how the brother was able to
bring the children, with the knowledge of the parents, to the
Netherlands. It remained "a total mystery,"
according to the headmaster of the school where Brother
Leonard Jack J. was employed. The solution to the
mystery is simple; the story was not true. No boys had
been shuttled backwards and forwards, however, Brother J. had
accepted some photographs from Fred V. while visiting the
Netherlands. His suitcase was accidentally off-loaded at
the wrong airport and so fell into the hands of Customs
officials. Following his arrest in England, the Dutch
police were informed. The police in the Netherlands were
taking their time, in an effort to uncover the extent of the
pornography activities of Fred V., a known figure to them.
The response of the police in the
Netherlands was not fast enough for Scotland Yard, so that the
British police leaked the story to the media. When De
Telegraaf let the Utrecht police know that the story would
break on the following Saturday, there was no time to build up
a case in the quiet. [*177] On Friday evening Fred V. was arrested and his friend Chris
the following morning. The other two, Ferdinand and
Anton were arrested early the following week. [*178]
The case is interesting because of the
large range of sexual relationships and contacts between men
and boys, varying from serious abuse to genuine love
relationships. It gives an insight into the complexity
of man-boy sexual relationships, the context in which almost
all boy child pornography is made. [*179]
It also makes it clear how things can go amiss when these
kinds of sexual contacts are photographed and filmed. It
raises questions about the methods employed by the police who
were under pressure to get results. Both because of
domestic Ministerial directives to act decisively and because
of the international spotlight on the case, the police clearly
lost sight of the ultimate purpose of the laws which they were
enforcing. The interests of the children who had been
involved were forgotten and they became pawns in the effort to
get the case wrapped up.
In Appendix
D we analyze the police dossier for the case against Fred,
Ferdinand and Anton. Ferdinand and Anton had never been
involved in the manufacture or the distribution of
pornography, which is apparent from the statements contained
in the police dossier. [*180] Furthermore, the prosecution of these men did not occur in the
interests of all the boys involved, indeed, the opposite was
the case. Chris was apparently not involved at all, and
eventually no charges against him were brought.
The dossier shows that the Justice
Department did not doubt for a moment the necessity of all the
prosecutions despite the fact that not one of the boys made a
negative statement about Anton and Ferdinand. This was
especially true of Johnny, Ferdinand's youngest friend, who
was deeply distressed by the arrest of his adult friend.
The men were arrested because the police and Justice
Department felt they could book a great success in rolling up
a child pornography network. Officer of Justice Mr.
R.A.M. Behling saw "for the first time a chance to lay
bare a distribution center of child pornography," [*181] and "The distribution territory, the volume, the form,
the frequency and the aim; I want to know lots more."
[*182]
Eventually, however, the cases against Fred, Ferdinand and
Anton were based entirely on the sexual contacts with a number
of boys. A case against Fred for distribution of
pornography was to be announced "as soon as more
information could be gathered." However, the
distribution of child sex photographs of any significance has
not been established. After two years the Ministry of
Justice had to close the investigation. Apparently, at
most Fred had sold nude photographs to legitimate magazines,
and the pornography which he had made was distributed by hand
to small numbers of personal friends. No pornography
prosecutions resulted.
The use of the media by the police to
spread distorted and alarming stories can also be
criticized. It was claimed that the children had
declared they were "revolted" by what had happened.
[*183] The term had been used once only by one of the children.
The positive statements of most of the children were not
mentioned to the media. In reality the picture is more
complex and varied.
Of the statements summarized in Appendix
D, two are positive, four, including the girls, are
neutral, and seven are slightly to very negative. With
respect to Anton, only the statements of three boys are
available, neither positive nor negative. With respect
to Ferdinand, four boys made statements; of these two (Johnny
and Stephan) made extremely positive statements. A third
(Peter) was rather neutral. The fourth statement was
made by a 10-year-old, whose stories were obviously the
product of a rich fantasy and not corroborated by any other
facts or statements, as also the police had to agree.
Johnny declared at the end of his statement of the first
interrogation:
Summing it up, I can say that I have never done anything
sexual under duress. Everything I did, I did because I
liked it. I have had a very good relationship with
Ferdinand, and I still have. I also don't want to end
the relationship now. [*184]
For Mr. Behling such statements were
irrelevant:
The children are taken into an environment with all kinds
of treats, candy, trips, stories, read to them. [*185]
Even if they think that it is all very nice, it still
isn't. They are seduced, easy prey. Even if they
instinctively don't want to go on, then they have to assert
that against an adult to whom they look up. If the
children go on then I see that as forced. In such
cases Judges assume correctly that there has been damage
done. This is totally different from sex games for
discovery. Children do that of their own free will.
[*186]
This is an example of "heads I win, tails you
lose" thinking: if the boys say they have been abused
then they have, and if they say that they have not, then they
still have been. Behling ignores the fact that boys are
sexually excitable and that sex might be a positive experience
for some of them. With Behling's logic, all
disagreements are won in advance. Whether he is right is
another point.
In our opinion, the boys should be the ones to decide that,
in particular now that have become adults. We point out
that Johnny and Ferdinand's other friends are no longer
minors. Their friendship with Ferdinand continues to
this day undiminished, as is their appreciation for what they
experienced with him during their adolescent years. One
of us visited four times to conduct interviews with Ferdinand
for this article. On every occasion one or more of the
boys dropped by, unannounced, on several occasions with their
girl friend in arm. Indeed, it was because of the
sustained good relationships between Ferdinand and the boys
that it became possible to obtain the interviews. (Transcripts
of the three interviews are presented in Appendix
E.)
The suggestion that protection of
children played any role in the actions of the police and the
Justice Department in this case is difficult to accept.
Johnny had to submit to four interrogations; the first time he
was in tears and so upset that the interrogation could not
proceed. [*187] The application of force, such as threatening to pick him up
at school, and the threat to bring in the court-commissioner
to approve special methods, make it dear that the police were
only interested in scoring another conviction. The
officer concerned, Bert Goselink, revealed his inability to
identify with the boys or to learn anything from this case
when he said later in an interview:
When they got older and some pubic hair appears they are
no longer attractive (to the pedophile). Then the
pedophiles callously drop them; just abandon them.
That leads to all kinds of psychological problems,
especially later when they start dating. [*188]
These are astonishing comments from a
man who has dedicated himself to breaking up such
relationships. If such a relationship is to be
condemned, then it should be on the grounds of abuse or
exploitation. If the relationship can be defended, then
it is a very odd, probably invalid, argument to claim that
imminent abandonment by the pedophile justifies police
intervention. Furthermore, abandonment of a child by a
pedophile is but one of the ways in which an adult-child
relationship can come to an end, if it does so at all.
Interference from outside is another way, and is probably more
common. [*189]
All three boys interviewed by us have
acquired a deep resentment and loss of respect for the
police. They blame the entire case on Fred but would not
make any negative statement about Ferdinand. This case
highlights the need for the law to have power to intervene
where children are being abused and exploited for
pornography. Fred V. did not know how to set responsible
limits and it is proper that he be made to pay a
penalty.
It is clear that Ferdinand is capable of
building up relationships bated on mutual respect and
affection, relationships which continue after the sexual
component is long over. At the same time, Ferdinand can
be accused of carelessness in his friendships with Fred — he
ought to have been able to protect his boy friends. He
knew of Fred's photography. He was at best naive to
believe Fred's promises. Nevertheless, the Justice
Department should not have taken this case further thin Fred
V. The fact that Johnny regularly wrote to and visited
Ferdinand in jail and maintained their relationship throughout
and after his release, [*190] including the sexual contact, makes a mockery of the criminal
law in this case.
Since this case the law has changed in
the Netherlands. Sexual contact between adults and
children between 12 and 16 years has become a "crime on
complaint." [*191] This means that the Justice Department cannot act if the
persons involved do not want a criminal prosecution to take
place. In cases where the "victims" do not see
themselves as victims and are injured by the actions of the
Justice Department it is difficult to see any value in
prosecution. The amendment of the law in this respect is
seen in the Netherlands as an improvement. It is yet to
be seen if the courts will again stretch the definitions to
eliminate the intended protection of the rights of teenagers
to make a choice in these matters.
This analysis shows how difficult it is to categorize the
world into black and white, into simple categories of good and
evil. A closer look at typical circumstances under which
child pornography came into existence, while revealing abuse
and exploitation, also revealed loving relationships and quite
surprisingly resilient loyalty of some boys for their adult
friend.
Conclusions and Comments
We have called the claims about child pornography
"myths." The existence of child pornography is
certainly not. The myths are the exaggerated estimates
of the number of children, the volume and value of the trade,
the profits that are alleged to have been made, and the
horrifying damage said to have been done to the
children. In fact, on many important points our
conclusions are more or less the same as the conclusions of
the ILIC, the Senate Commission under William Roth, and the De
Wit work group in the Netherlands. The results of these
findings have not convinced the crusaders in the past, and no
doubt our results will be ignored by those whose political
agendas are not served by the facts.
This, of course, does not diminish the fact that several
thousands of children have been involved in the manufacture of
child pornography. The pictures rarely showed sexual
abuse, and often did not show any kind of sexual
activity. Nevertheless, the rights of 1the children as
models and actors has usually been ignored: in most cases the
photographs have been published without the permission or
knowledge of the children. The use of the images, even
when no abuse has taken place in the making of them, could be
seen as an assault on the integrity of the children involved
which justifies the sanctions which now exist.
The criminal sanctions appear to be
effective. Outside the small scale swap circuit, child
pornography is no longer found, despite the fact that the
maximum penalty in the Netherlands is three months, small in
comparison with the maximum penalty for indecent behavior with
a child (six years) and heling (three years).
Denmark has a fine, which has not made the prohibition less
effective. When the children can be traced, the
producers of child pornography can be charged with the crime
of indecent assault. [*192]
Some police and Justice Department
officials, including Mr. Behling, urge for an increase in the
maximum penalty. This would make it possible to place
the accused in custody while police inquiries get underway.
[*193] In the event that it is thought necessary to make this change,
despite the demonstrable effectiveness of article 240b, this
could be accomplished by a change to the Code of Criminal
Procedure. [*194] Enforcement of the law does not provide an argument for a
review of the maximum penalty.
Finally, there are remarkable parallels between the
developments in the United States and in the
Netherlands. In both countries the distribution of child
pornography was prohibited in the interest of protecting
children, and was defined as a crime of child abuse. The
effect of the photographs on the consumer was
irrelevant. In both countries the jurisprudence has
determined a criterion for prosecution with is anchored in the
effect that the photographs might have on the viewer.
In
the United States this was a result of the decision in the
cases Dost and Wiegand. In the Netherlands
the Supreme Court accepted the definition of the De Wit work
group in the case against Donald Mader, in which the effect of
the photograph on the viewer stands central. All these
cases involved innocent photographs, none of which showed any
sexual activity. It is remarkable that on both sides of
the Atlantic the same shift has taken place. In both
countries, dissemination of child pornography has once again
become a crime against decency.
The work leading to this study was started in September
1987. At that time child pornography was a major issue
in the Netherlands. In 1984, the U.S. administration
pressured the Dutch government to act against the allegedly
massive production and export of child pornography from the
Netherlands to the U.S. In 1986, with the enactment of a
new law against child pornography, the Dutch ministry of
Justice had made the attack a high priority.
In the
Spring of 1987 a photo exhibition at a gay gallery in
Amsterdam was raided for purportedly displaying child
pornography (in fact, none of the photos showed any sexual
activity) and charges were brought against the photographer,
the Amsterdam-based American Donald H. Mader (who was later
convicted and required to pay a 500 guilder fine; the
conviction was eventually overturned on the 30th of March 1992
at the appeals court in Amsterdam).
Most news media
uncritically copied reports from U.S. sources and from private
lobbying groups according to which child pornography
trafficking constituted a multi-million (or multi-billion)
dollar underground business that exploited countless
children. Subsequent investigation found little evidence
supporting these claims.
However, the sensational reports were ostensibly vindicated
by events in the village of Oude Pekela, which started in May
1987, when Oude Pekela became the scene of a child sex abuse
affair comparable to American day care center cases. The
investigation and panic lasted for one and a half years,
eventually leading to the largest investigation by the Dutch
National Police in the history of the Netherlands.
Children were repeatedly interrogated by their teachers,
social workers, police, parents and especially by the town's
general practitioners, Dr. Jonker and his wife, Dr.
Jonker-Bakker, and finally by Dr. Mik, a retired
psychiatrist.
The extensive investigation never produced
any evidence that the progressively escalating stories of the
children, including allegations of child kidnapping on a large
scale, use of drugs, manufacture of child pornography and
Satan worship, were true. The only thing that could be
proven was sex play between two toddlers. This event
triggered the allegations by Dr. Jonker and his wife of child
sexual abuse on a massive scale. There was plenty of
evidence of mass hysteria. (For a discussion of this, see
Rossen, 1989, Mass hysteria in Oude Pekela. Issues in Child
Abuse Accusations, 1(1),
49-51.)
At the same time reports began to appear about the policy
of U.S. law enforcement agencies which involved the use of
child pornography as "bait" to entrap actual or
suspected child molesters. In general the radicalization
of the policy to combat child abuse led to major, highly
publicized cases starting with the Jordan, Minnesota and
McMartin accusations in Manhattan Beach (1983-1990).
Unlike the exaggerated claims concerning the child pornography
trade, reports of American cases failed to gain significant
attention in the Netherlands.
On the other hand, since the mid-1980s the Dutch media have
been full of exaggerated stories of local events, smaller in
scale but incorporating the same elements of rumor panic and
collective paranoia. Crusaders against child abuse
successfully projected their political message on the waves of
public concern. We considered that a book which analyzed
the facts on the child abuse industry and the claims it is
making, would be helpful in countering the widespread
ignorance of the issues involved and the growing fears
throughout the community.
In the course of 1988, we decided to
give priority to writing a book on Oude Pekela alone, which
continued to be the single most important child pornography
affair in the country (even though not a trace of pornography,
or of pornographers, has ever been detected that could be
related to this case). During our investigation we made
contact with the chief officer of the Oude Pekela task force,
Mr. Wim Joosten, with whom we shared our findings. It
was our belief that inexpert interrogation of the children
over a long period by many persons had led to children telling
stories based on the fears and fantasies of the people
conducting the interrogations, and ultimately to distortion of
the children's memories.
The results of the Oude Pekela
investigation was written up as a Masters thesis [*209] by one of us (B.R.) and submitted to the University of
Amsterdam. The thesis, which deals principally with the
collective psychology of rumor panic, was later published in a
summarized form. [*210] English translations of the book in manuscript form are
available from the author on request. [*211]
The thesis did not include our
pornography study, since no pornography had been made in Oude
Pekela and our findings were therefore irrelevant.
Nevertheless, the claims concerning the large scale of child
pornography trade that were vociferously made in the wake of
the Oude Pekela affair led us to conclude that a serious
attempt should be made to assess the actual volume of the
trade, the number of children involved and the nature of the
depicted acts.
This study was started as a project to be
included in a second book, which would deal with various
aspects of judicial and law enforcement policy with respect to
child abuse in the United States, and especially the influence
that the U.S.A. has had on policy development and
implementation in the Netherlands. This book has just
been published. [*212] The present article is based on parts of the latter book.
For the present study we were grateful to receive
permission from Professor Ernst Braches, former chief
librarian of the University of Amsterdam, to use his
unpublished research for which he had counted child
pornography magazines issued since the 1950s. Through
personal contacts via the Dutch Association for Sexual Reform (NVSH)
we were able to get access to some private collections of
child pornography magazines, which we used for our analysis,
and to watch a number of films.
Between 1988 and 1991 we
checked sex shops in the Netherlands and Germany for child
pornography. In addition, we held a number of interviews
with persons who were in possession of first-hand knowledge of
child pornography production and dissemination. Among
these were publishers, friends and defense attorneys of
persons accused of producing and disseminating child
pornography, persons who were photographed as children and the
Central Police Investigations Information Service, drawing the
attention of the latter to the recent reemergence of magazines
in Germany.
In addition, one of us (B.R.) regularly appears as expert
witness in the Dutch courts in cases where children are
witnesses or witness/victims. We are in the process of
building up an archive of cases; some show actual cases of
child abuse, others show cases of mistaken diagnosis.
Borrowing from the tape analysis methods developed by Ralph
Underwager and Hollida Wakefield, we have been able to show
how children have sometimes been manipulated to say things
that may not be true. Excerpts from two of the court
reports are also included in our book.
In cooperation with Professor Jan Wind, chairman of the
Foundation Ouders voor kinderen (Parents for Children,
a private group that deals with false accusations of child
abuse; comparable to VOCAL
in the U.S.A. and PAIN in the United Kingdom) we are
presently making an evaluation of the enforcement of laws
against child abuse in the Netherlands, and in particular of
the performance of the police and the Justice
Department. The results will be published in 1993.
One of us (J.S.) is a member of the Labour Party Commission on
Government and Sexual Integrity, which is preparing proposals
for a revision of the Dutch morality laws and will be editing
the final report of this committee to be published by the end
of 1992.
Appendix
A: The Number of Magazines
Appendix
B: The Number of Children
Appendix
C: Content Analysis
Appendix D: Child Pornography Ring
Interviews with Three Boys
Endnotes
[*]
Jan Schuijer has a Masters Degree in
Economics, has been working as an adviser on legal
and political issues in various Dutch organizations,
including the Dutch Association for Sexual Reform,
the Dutch Association for Gay Integration and the
Labour Party.Benjamin Rossen, B.A., B.Sc., Dip.Ed. and a
Masters Degree in Mass Psychology from the University
of Amsterdam, teaches Theory of Knowledge and
Chemistry at an International Baccalaureate College
in the Netherlands, and is a consultant in
children's memory and children as witnesses.
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