Prof. Alisdair A. Gillespie De Montfort University, UK
Examines the use of the criminal law to combat the sexual exploitation of children online. I will give three presentations: ◦ Specific legislation as regards child sexual abuse material (“child pornography”). ◦ Local and International responses to the grooming / solicitation of children. ◦ Child as the perpetrator of a child sexual abuse material offence.
Child Pornography
John Carr introduced a number of international instruments. A number make specific reference to “child pornography”. The key instruments are: ◦ Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC). ◦ CoE Convention on Cybercrime. ◦ CoE Convention on the Protection of Children Against Sexual Abuse. ◦ EU Directive 2011/93/EU (EU states only).
Definitions of child pornography in international law: ElementOPSCCoE_SECoE-CyEU Dir Age of child18 18*18 ‘Dress down’ / Virtual child / ** Simple nudity Explicit posing Non-penetrative Penetrative acts * - can be lowered to 16 ** - presumption that it applies.
Offences prescribed under International Law OffenceOPSCCoE_SECoE-CyEU Dir Simple possession * * * Accessing * Procuring * Distributing Making Available Producing * * * - subject to discretionary opt-out.
National Legislation: Type of Material OffencePhotoDrawingTextAudio Australia Canada England & Wales Ireland USA * * - if it depicts a real child
National Legislation: Virtual Child Pornography OffenceCGIPseudoDress Down Australia Canada England & Wales ** Ireland USA ** * - criminalised under other legislation. ** - save where it depicts a real child
National Legislation: Nature of Material OffenceFemale Breast NudityExplicit Nudity Sexual Activity Australia 1 1 Canada 22 1 England & Wales 3 3 Ireland 1 1 USA 44 1 – Subject to it being for a sexual purpose. 2 – s.163.1(1), Criminal Code refers to the ‘sexual organ’ of a child. The breast is not an organ. 3 – The requirement under English law is that it is ‘indecent’ 4 – 18 USC § 2256(2) refers to the genitals of the child. The dictionary defines genitals as the reproductive organs which implies that the breast will not satisfy this definition.
National and international laws seek the criminalisation of child sexual abuse material. Default age of ‘a child’ has become 18. International and national instruments increasingly widening their definition of material. International law is increasingly criminalising the mere simple possession and accessing of such material.