Law 330: Criminalisation Case Studies: Child Pornography and Child Sexual Grooming, week 6

Suzanne Ost
Suggested reading, child pornography:
(You are encouraged to read at least two of the following reading suggestions AND a selection of the newspaper articles.)

Adler, Amy 2001. ‘The Perverse Law of Child Pornography’, Columbia Law Review 101(2): 209-73 (an interesting critique of American law which is accessible electronically via Westlaw, or at http://www.ipce.info/library_3/files/adler.htm

Gillespie, Alisdair A. 2011. Child Pornography: Law and Policy. Routledge. Library electronic copy available.

Gillespie, Alisdair A. 2005. ‘Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse’, International Journal of Evidence and Proof 9: 29-49.

Gillespie, Alisdair A. 2004. ‘The Sexual Offences Act 2003 (3) Tinkering With “Child Pornography”’ Criminal Law Review 361-68.

O’Riordan, Maurice 2008 (July). ‘Editorial: To Dream a Child’, Art Monthly 211. Available at: http://www.artmonthly.org.au/artnotes.asp?aID=37&issueNumber=211

J Prichard, P Watters and C Spiranovic, ‘Internet subcultures and pathways to the use of child pornography’ (2011) 27(6) Computer Law & Security Review, 585-600.

Ost, Suzanne 2009. Child Pornography and Sexual Grooming: Legal and Societal Responses. Cambridge University Press, chapters 3 and 4. Library electronic copy available.

Ost, Suzanne 2010. ‘Criminalising Fabricated Images of Child Pornography: A Matter of Harm or Morality?’, Legal Studies 30(2): 230-256.

Williams, Katherine S. 2004. ‘Child Pornography Law: Does it Protect Children?’, Journal of Social Welfare and Family Law 26(3): 245-61.
Newspaper articles and BBC News reports on the Tierney Gearon, Nan Goldin and Polixeni Papapetrou photographs (if no link provided below, available via Nexis):

Legally Indecent?, The Times, 13 March 2001.

‘There’s nothing seedy about these pictures of my kids. They are not “child porn”. They are wholesome’, The Independent, 13 March 2001.

‘No Charges over Saatchi Photos’, The Guardian, 16 March 2001.

‘Encouraging evil’, Daily Mail, 16 March 2001.

‘The pics are okay…but I wouldn’t put them on view; Readers’ give verdict on nudes display’, The Mirror, 17 March 2001.

‘The notional paedophile now dictates what we can look at’, The Guardian, 4 October 2007. Available at: http://www.guardian.co.uk/commentisfree/2007/oct/04/comment.comment1

‘Naked fear on display’, The Times, 30 September 2007.

‘Art or abuse? Fury over image of naked girl’, The Independent, 8 July 2008. Available at: http://www.independent.co.uk/news/world/australasia/art-or-abuse-fury-over-image-of-naked-girl-862068.html

‘Child abuse artist Graham Ovenden jailed for two years after ‘unduly lenient’ sentence is reviewed’, The Independent, 9th October 2013.
http://www.independent.co.uk/news/uk/crime/child-abuse-artist-graham-ovenden-jailed-for-two-years-after-unduly-lenient-sentence-is-reviewed-8868358.html
Suggested reading, child sexual grooming:
(You are encouraged to read at least two of the following reading suggestions.)

Craven, Samantha, Brown, Sarah and Gilchrist, Elizabeth 2006. ‘Sexual Grooming of Children: Review of Literature and Theoretical Considerations’, Journal of Sexual Aggression 12(3): 287-99.

Gillespie, Alisdair A. 2006. ‘Indecent Images, Grooming and the Law’, Criminal Law Review 412-21.

McAlinden, Anne-Marie 2013. Grooming’ and the Sexual Abuse of Children (Oxford: Oxford University Press). Library electronic copy available.

McAlinden, Anne-Marie 2006. ‘“Setting ‘Em Up”: Personal, Familial and Institutional Grooming in the Sexual Abuse of Children’, Social and Legal Studies 15(3): 339-62.

Ost, Suzanne 2009. Child Pornography and Sexual Grooming: Legal and Societal Responses. Cambridge University Press, chapters 3 and 4. Library electronic copy available.
Robinson, Paul H. and Darley, John M. 2004. ‘Does Criminal Law Deter? A Behavioural Science Investigation’, Oxford Journal of Legal Studies 24: 173-205.
Wider reading:

Quayle, Ethel, Erooga, Marcus, Wright, Louise, Taylor, Max and Harbinson, Dawn 2006. Only Pictures? Therapeutic Work with Internet Sex Offenders. Dorset: Russell House Publishing.

J Mooney and S Ost, ‘Group Localised Grooming: What is it and What Challenges does it pose for Law and Society?’ (2013) 25(4) Child and Family Law Quarterly, 425-450.

Questions
1. Outline what you believe to be the strongest justificatory reasons for the existence of the criminal offence of possessing child pornography.

Common thread is to provide sexual enjoyment to the producer and viewer (Taylor and Quayle 2003)

The inherent power balance means that the child, exploited by either the production and the material used. Eg. Situations like the children are unaware that they are being used for the deviant purposes. (Ost 2009)
Case: R v H 2005 – Teacher took pictures of the students

Mental disorder/ Biology: sexual interest to the adolescents. Also, accessing the child porn as a therapy, a mental treatment. Moreover, obtain sexual leisure in a way that they could have in real life. Process of collecting can be a pleasure of them. Facilitating their societal relationships (not apply to every offenders): allow them to share their sexual interests and realize that they were not alone.

Maturity: Gillick case(1986) – sufficiently mature to acknowledge the consequences of sexual intercourse.

Puberty of the adolescents: curious to sex

Proof: common sense argument
Why do they create the possession? How they gain? Behaviour violation. If the others think theres nothing wrong, then they will think they are doing okay with it. Safety therapy

Market argument

Grooming – potential harm

Excitement: proof? Not enough evidence and no causal link
Moral harm

Criminalizing the behaviour: Protect the children? Prevent grooming.
And psychological harm

Even for the photos

2. Has there been a ‘moral panic’ about child pornography and images of naked children?

Yes. But there is no accurate meaning of moral panic. earlier historical examples exist of moral panics surrounding children and perceived threats to their innocence
Safety to the children. Panic among the sex offenders. Recent law and policy regarding to sex offences have shaped by moral panic

Overreactions and exaggerated claims:

Exhibition? Someone may go for satisfying their sexual interest
3. Is the offence relating to the possession of non-photographic, pornographic images of children (NPPIC) defensible/justifiable?

Texts, sounds, cartoons and drawings.
Can be in the grooming process
Morality argument: affect the morality in society
Link to a real child: Drawings of a child – being sexually abused
Purely for imagination: not harming – freedom of expression? It depends on what harm you create
Images are more powerful?

Obscenity legislation: obscene, article, publication.
Obscene: to deprave and corrupt – definition in R v Penguin Books(1961)
Perrin: all circumstances of the likely audience must be taken into account.
Oz case: prosecution of literature works is likely to be unsuccessful, but it may contradict the judgment in Perrin

Articles: to cover any product that was capable of containing pictures, words and the sounds, even the eletronic datas – definition is relatively broad.

Publications: publications or possession for publications
Crteria includes: sells, let on hire, gives, lends to an individual or the second group, but giving it free would not itself constitute an offence.

Host of the website allows user to download images containing child pron

Section 1(3)(b); includes the transmitting the data
4. Outline what you believe to be the strongest justificatory reasons for the offence related to child sexual grooming.

Grooming: Create relationship of trust ? sexual abuse
How? Internet grooming ? chatting to make the child feel comfortable
Process: Give them love

An opportunity to sexual abuses is more likely to emerge the following act of grooming. Grooming can be conceived as a predatory act committed in order to facilitate sexual abuse and, thus, the issue of context – particularly the motivation behind the behaviour – is highly relevant
According to Finkelhor’s model, there are four preconditions to child sex abuse. The first is a motivation to sexually abuse a child, which may exist because, for example, the individual develops emotional congruence with children, or has deviant sexual preferences. The second is overcoming the individual’s inhibitions. Thirdly, the individual must also surmount any external obstacles to committing the abuse. These could include, for example, parental supervision of the child. Finally, the individual must overcome the child’s resistance. As will become evident, a successful course of grooming could facilitate
Finkelhor’s second, third and fourth preconditions.

How to criminalize? Written evidence, Meeting?

Abnormal sexual activities, put the children at risk

Section 14: no substantive proof ( facilitate the grooming behaviour)

5. Is the offence related to grooming likely to deter would-be child sex abusers?

Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal justice realities such as low punishment rates.
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