The crime of possessing or viewing child pornography: Cannot always agree on who is harmed?

By: Martin Kwan

John Stuart Mill’s harm principle is one of the most common justifications for the criminalization of a certain conduct. In simple terms, the principle provides that acts that cause harm to others should be criminalized.

Naturally, the aim of the offences involving child pornography would be to prevent harm to children – an unwavering policy goal which is emphasized both in the name and preamble of the relevant statutes such as the Protection of Children from Sexual Offences Act 2012 in India and the Protection of Children Act 1978 in the UK. However, this blog analyses why this is not always the case. Unlike other offences, it is difficult to define a specific victim group protected by the offence. The crime can occur even if there is no harm to a real child. Depending on the circumstances, the subject of harm can involve a foreign child victim, the pornography possessor themselves, or solely the community norm against child abuse. Such a dispersive, or rather, inconsistent focus of harm casts doubt on whom the offence is intended to protect.

Child pornography offences

Offences dealing with child pornography have been enacted in a number of jurisdictions, such as India, the UK, US and Hong Kong. Generally, the offences cover possession, distribution and production of child pornographic materials.

In modern times, the possibility of directly browsing child pornography online obsoletes the need to possess actual copies. Therefore, a number of jurisdictions also penalizes the act of merely viewing child pornography. In India, s. 67-B(b) of the Information Technology Act 2000 explicitly includes the act of ‘browsing’ such materials. In a recent decision, the Madras High Court affirmed that, whilst it is lawful to view adult pornography, viewing child pornography is prohibited as ‘[s]ection 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography’. Likewise, the US federal law penalizes a person who ‘knowingly accesses with the intent to view’ child pornography. This offence can also be found in the criminal laws of individual states such as New York and Oregon.

By contrast, some jurisdictions have less specific statutory provisions on the criminality of the act of ‘viewing’. For example, under English law, s. 1 of the Protection of Children Act 1978 criminalizes, inter alia, the ‘making’ of child pornography. Despite so, the English judiciary has adopted a broad interpretation and held that causing an image to be displayed on a computer screen constitutes ‘making’.  

Sometimes there is no child victim involved

Controversially, the offence in jurisdictions such as the UK and the US covers the situation where no child is involved, but instead the pornographic materials involve cartoon or pseudo photos.

It was therefore argued by some that the lack of a child victim means that the offence goes against the harm principle in those circumstances. The controversy helps explain why some countries do not prohibit such virtual materials, such as Japan.

Under English law, the child pornography offences include ‘pseudo-photograph of child’, which are usually ‘made by computer-graphics’ (e.g. superimposing a child’s head on to an adult nude body). Additionally, child pornography in the form of cartoon or animation is covered by another statute, which adopts a broad definition of image ‘produced by any means’. In 2014, the UK saw the first conviction where there was no real child involved but with cartoon only. The judge commented such animation ‘obviously portrays sexual activity with children, and the more it’s portrayed, the more the ill-disposed may think it’s acceptable’. This received widespread controversy. In a commentary, it was argued that such conviction polices individuals’ fantasies, and the absence of a real victim meant that it was a thought crime, not a sex crime.

In the US, the PROTECT Act covers ‘depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults’. The first conviction happened in 2010, where the defendant possessed Japanese comic books depicting child sex. In an article, Prof. Mark McLelland argued that the ban against such virtual materials fails to pay due regard to the Japanese popular fan culture. Despite such materials are legitimate in Japan, the ban in effect considers ‘manga fans as potential sex offenders’ even though they are not posing real threats or causing harm.

Preventing harm to ‘others’: foreign or local children?

The harm principle justifies criminalization by preventing harm to ‘others’. However, where the child pornography materials involve foreign victims abused overseas, the offence in effect seeks to protect foreigners. Unlike situations such as murdering a foreigner within the jurisdiction, the victim is materially harmed overseas.

Morally, child abuse – irrespective of where it happens – must be condemned as an egregious wrongdoing. However, from a social perspective, the prosecution – which uses local public resources to investigate and prosecute – indirectly prioritizes the interests of foreign nationals over other local crimes.

Even in terms of international legal obligations, the Convention on the Rights of the Child explicitly contemplates the protection of local children, not foreigners. Specifically, Article 2 of the Convention provides that “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction”.

Taking all these considerations together, prosecuting the offence for protecting foreign victims stretches the harm principle to the widest sense. It is questionable if local governments indeed intend the offence for preventing such foreign harm. In order to justify domestic prosecution, some might ask for another explanation that identifies someone else who suffered harm within the jurisdiction.

Perhaps the harm is to the possessors themselves?

It is possible to define the harmed victim as the pornography possessors themselves, rather than the children. Applying the harm principle in this sense, the ‘harm’ from indecent, or even worse, obscene materials involving children, is the corruption of the mind of the possessor. Paternalistic understanding of the harm principle would include self-inflicted harm. For other related offences such as distribution of pornographic materials, the ‘harm’ corrupts the mind of the end recipients. Even when there is no real child involved, the possessor is still self-harmed by viewing the corruptive materials.

However, attributing the ‘harm’ to the possessor themselves is not always tenable, because the possessor can still be convicted despite not having viewed the material. In the UK, it is a defence if a person (1) ‘had not himself seen the photographs or pseudo-photographs’ and (2) ‘did not know, nor had any cause to suspect, them to be indecent’. In other words, a person who knowingly possesses child pornography can still be convicted even if he/she has not viewed the material. Without viewing, the possessor has not (yet) corrupted his/her own mind, and therefore there is no (self-)harm. Similarly, the US offence requires knowing possession or access with the intent to view, again meaning that actual viewing (and thereby self-corruption of mind) is not necessary for a conviction. In a similar vein, it amounts to a crime in India to ‘seek’ child pornography, pursuant to s. 67B(b) of the Information Technology Act.

Can it be protecting against future harm to children, or harm to community norm?

It is not an infallible argument to suggest that the possession offence seeks to protect subsequent harm to children, such as actual sexual harassment. This is because there is no conclusive evidence over increasing the tendency to offend:

‘Consuming child pornography alone is not a risk factor for committing hands-on sex offenses – at least not for those subjects who had never committed a hands-on sex offense.’

Moreover, it was noted that the absence of prohibition does not necessarily cause harm to local children:

‘If access to child pornography leads to more sex abuse, we should expect the share of child sex abuse in a society to increase when more people have access to child pornography. The opposite, however, seems to be the case. Milton Diamond, Eva Jozifkova, and Petr Weis found that when the Czech Republic lifted its ban on pornography, including child pornography in 1989, there was a drop in rape and child sexual abuse.’

In explaining the drop in cases, Diamond, Jozifkova and Weis argued that child pornography materials were used as a substitute for sexual aggression against children.

Furthermore, Prof. Suzanne Ost in in her article warned against the possible backfire of the offences. The stringent ban against child pornography may implicitly cast shame on children’s bodies – in the sense that any photograph of children’s body is seen as inherently sexual, indecent, and criminally suspicious. First, this harms children by affecting the way in which they perceive their own bodies, such as feeling guilt about the sexualisation. Second, to paedophiles, the ban served to safeguard child innocence and purity could unhelpfully reinforce more harmful fantasies. In psychological terms, the ‘forbidden fruit effect’ provides that some may find disallowed matters more attractive.

Alternatively, one could argue that the offence seeks to maintain the public distaste against child abuse. In other words, it conceives child pornography as a harm to social value. This view accords with one of the possible interpretations of the harm principle, in the sense that it is a harm to cause ‘a setback to human interests that community norms have deemed to be significant’.

Nevertheless, the fallacy of this view is that the scope of the ‘community norm’ can be quite uncertain. For example, non-obscene simulated child pornography is considered a legitimate form of freedom of expression in the US. Furthermore, in Japan, whilst child pornography involving real child is banned, virtual (cartoon) child pornography remains lawful. These exceptions suggest that the ban is selective, and the community norm in these major jurisdictions can seem ambiguous. Very importantly, the norm inevitably will be influenced and shaped by the fact that the Internet exchanges various cultures and perceptions on this matter. The confusion over the norm undermines the normative criminality of the offence.

Besides, there are also qualms over the logic of the offences:

‘Banning pictures of naked children lets the warped view of the paedophile set the standard for what is normal…Nude and rude adults can be thrust obscenely everywhere, but children’s bodies must be shrouded as if they were indeed sexual. This is the world upside down – the paedophile’s view, not ours.’

Why is it important to have a social consensus on who is harmed?

It is tempting to think that the lack of a consistent ‘harmed victim’ – be it a real child victim, a foreign victim, the possessor themselves, or the community value – does not really matter, as long as a harmed victim can be identified in each case. However, the confusion makes it difficult for the public to reach a consensus on who the defendant has really harmed, and therefore also on the degree of moral culpability.

Given the wide scope of the offence, it apparently does not only serve the goal of protecting children. For example, is it designed for protecting any children irrespective of their location, or the viewers themselves? Governments should explain this very clearly to the public.

For example, in the 2021 Madras High Court decision, the judge commented that ‘we should be compassionate towards any child. We should ensure that no child is sexually exploited’. From these quotes, it is particularly noteworthy that the judge emphasized the need to protect ‘any child’. Nevertheless, the judgement did not mention whether the children involved were local. Although it is absolutely right in moral terms that no child should ever be harmed and s. 67-B of the Information Technology Act 2000 defines ‘children’ widely to include any ‘person who has not completed the age of 18 years’, it still leaves open the questions of (1) whether the original legislative aim intends to cover foreign children, and (2) to what extent those foreign children should be protected domestically. This issue requires policy and moral considerations, and governments may be better placed to answer this than individual judges.

This issue was also raised in a decision in California, indicating the potency of this point as it can affect the criminality of the conduct in concern and also the scope of the law. In that case, the defendant argued that the Californian ‘reporting requirement does not extend to child abuse victims outside of California’s territorial jurisdiction’ (i.e. protecting Californians only). The Attorney General replied in argument that ‘California has an interest in protecting the nation’s children and the children residing in this state’ (i.e. protecting all US children). Will the law protect foreign children out of the US? Unfortunately, this issue was left unanswered by the court because the appeal was resolved on other grounds.

[The author is a qualified lawyer from University of London and an LLM graduate from London School of Economics. He is currently working as an independent legal researcher.]

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