Criminal Law

Question

Is Gillespie right to suggest that there are significant obstacles in the way of creating a balanced definition of child pornography? Do that virtually insurmountable tensions exist between the desire to prohibit material that exploits children, and the desire to protect freedom of expression? Discuss, with reference to all relevant required readings.

Article to be used: http://www.canlii.org/en/ca/scc/doc/2011/2011scc48/2011scc48.html
http://www.canlii.org/en/bc/bcca/doc/2010/2010bcca313/2010bcca313.html

Textbooks used for class:
Babor, T., Caulkins, J., Edwards, G., Fischer, B., Foxcroft, D., Humphreys, K., … Strang, J. (2010). Drug policy and the public good. Oxford, UK: Oxford University Press.

Room R., Fischer, B., Hall, W., Lenton, S., & Reuter, P. (2010). Cannabis policy: Moving beyond stalemate. Oxford, UK: Oxford University Press.

Huff, C. R., & Killias, M. (Eds.). (2010). Wrongful conviction: International perspectives on miscarriages of justice. Philadelphia, PA: Temple University Press.

Answer

Obstacles in the Way of Creating a Balanced Definition of Child Pornography

Child pornography is a contentious issue that dates back to the 20th century and has spilled over into this current era. It has continued to wax and wane over time, but it has since been reignited following the adoption and enactment of obscenity laws in the late 1970s by several states in America (Adler, 2001; Cameron, 1992). However, the issue has proven to be a daunting one and its complexity has been catalyzed by quite a number of factors and components that persist even in the present world. In light of this situation, this essay will strive to effectively and appropriately answer Gillespie’s question of whether indeed there are significant obstacles in the way of creating a balanced definition of child pornography. A seemingly insurmountable tensions exist between the desire to prohibit material that exploits children and the desire to protect freedom of expression. To fully address this question, the information will be drawn from Gillespie’s article, Legal Definitions of Child Pornography, together with other sources that have examined the issue.


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Gillespie is right to assert that indeed there are myriad obstacles that come in the way of appropriately formulating a well-rounded and all-encompassing definition of child pornography and outlining its scope. Additionally, he is right to advance that there is the antagonism that emerges between prohibiting explicit material and content and protecting the freedom of speech/expression. The issue may appear to be somewhat simple especially when typical practices are explored and considered but in essence, there are several legal perspectives that need to be addressed to give a viable definition of the term “child pornography” (Gillespie, 2010). As such, there are numerous factors that need to be considered in addressing this issue. To support his argument on this issue, Gillespie (2010) advances several reasons and approaches to bring out the complexity of the argument as well as their associated drawbacks if the latter were to be endorsed and inculcated into the legal system of any country.

To begin with, the complexity and severity of the issue has been propagated by the exponential increase in sexual-related incidences. According to Adler (2001), quite a number of law implementation agencies handle and prosecute several cases pertaining to child pornography since they have grounds to act upon. The adoption of the obscenity laws by most states has presupposed that all sexual issues fall under one umbrella concept instead of focusing on the specific challenges especially child pornography which is on the rise. This move has made it difficult for most legal systems to single out child pornography and to come up with meaningful measures of meting out punishment against the offenders. This is because there is no viable definition for “child pornography”.

Secondly, the rapid technological advancements that have characterized the communication industry have made it difficult to clearly define the boundaries and the scope of child pornography. This issue has further been worsened by the development of the Internet and other digital media that have remained the sole propagators of material on child pornography. According to McCarthy (2010), these digital technologies have allowed people to access, view, download and distribute such material over different social media platforms and this has caused more harm than good. As Taylor and Quayle (2003) point out, the Internet has enabled people to access an enormous amount of sexual material. The material is readily available at just one click of a computer button and this has made the issue quite challenging.

Thirdly, the fact that each country has its own laws that are more or less characterized by an unsophisticated focus on local concerns rather than wider contexts have made it difficult to enforce laws and persecute offenders. There are considerable disparities in the obscenity laws that exist in different countries across the globe (Cameron, 1992). Thus, the issue of child pornography has not yet been defined clearly in a more universal forum that will ensure that it applies equally to all countries. Gillespie (2010) uses the example of a person being a criminal in one country and not in another simply because the laws between the two countries look at criminals from a different perspective regardless of the crime being committed.

In line with the above reasons, Gillespie (2010) further asserts that in order to fully comprehend and come up with an all-encompassing legal definition of “child pornography”, three vital components need to be addressed: defining who a child is, defining forms of explicit material and outlining the purpose of the material. These three components are what constitute a profound basis that supports Gillespie’s argument. However, as it will be highlighted in the next section of this essay, there are a plethora of drawbacks and implications that make this issue quite insurmountable.

In defining a “child”, it is a common notion that anyone who is below the age of 18 years qualifies to fall under this category. However, Gillespie (2010) notes that the existence of different laws in various countries defines a child in terms of the context and situation the child is faced with. For instance, in Wales, the age of 16 years is perceived as the appropriate age for a child to involve in pornography but in the event that a violation of trust occurs, the age of 18 suffices. Others argue that children who are as young as 10 years have been known to commit criminal offenses and as such, age has been taken to be a mere regulatory tool for enforcing justice (Cameron, 1992; Koppelman, 2005). From these incidences, it is quite clear that not even the law itself can come up with a distinct age that clearly demarcates the boundary between an adult and a child. The complexity that arises when defining a child has a negative implication on the law’s capability and influence to formulate laws and regulations pertaining to child pornography (Cameron, 1992). This is a show of how serious the issue is and it lends credence to Gillespie’s argument.

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Furthermore, the biological approach suggested by Gillespie (2010) in providing boundaries for defining child pornography to a great extent depends on the onset of puberty. According to Seto (2004), the use of puberty to define whether one is a child or not could provide an in-depth analysis that is imperative to understanding the behavior of pedophiles. As such, the development of secondary sexual characteristics in a person could mark the age and provide limits within which one can distinguish between an adult and a child. This connotation could, in fact, make it possible to define child pornography in a more prudent and objective way that places emphasis on age identification, making the process rather easy. However, Gillespie notes that there are some drawbacks associated with using this approach. For one, the age at which most children are attaining puberty in this era is decreasing due to what most physicians claim is increased hormonal imbalance and Body Mass Index (BMI) which greatly influences puberty onset (Kaplowitz, 2001). Additionally, one may note that it is quite difficult to separate the age at which a child can indulge in pornography by drawing a contrast with the age that is universally accepted, endorsed and recognized by international law in line with freedom of expression. This has further complicated the issue of defining “child pornography” since there is a lack of consistency in puberty onset.

Accordingly, Gillespie suggests a different approach in addressing this issue, which involves the use of age as a key specification point for differentiating between a child and a young adult. However, it is equally paved with several downsides as well. He argues that the law could also model a framework that would outlaw child pornography by setting up a fixed age. Consequently, anyone found to fall under this implied age would be regarded as a minor. However, the question that lingers relates to the appropriate age that should be selected. It is clearly evident that there is no standard age of approval based on the view that different countries have dissimilar legal age limits. In a country like Wales, for example, the consent age varies depending on whom the child is involved with sexually. While 18 is an age that seems acceptable to the majority and is consequently recognized by most states as well as international law, Jenkins (2001) strongly refutes its suitability, claiming that 18 is too high an age, and that 16 is the most sensible age. The fact that the law has deemed it fit to regulate teenage sexuality by advocating for the approval of a rigid age requirement implies that child pornography should follow the same route if at all the problem is to be curbed. However, Gillespie (2004) suggests that there is indisputable evidence that points to law enforcement organizations being selective and moderately slow in persecuting incidences pertaining to persons of higher ages, say 18, to avoid infringing on their freedom of expression. This is clearly brought out in the example of Wales where 16 is the age of approval for a child involved in pornography. In most states, the issue has become contentious since the age limit tends to be 18 years.

Meanwhile, the most imperative issue to take into perspective when addressing this issue as suggested by Gillespie (2004) is the nature of the material to be categorized as explicit and consequently, amounting to child pornography. Gillespie (2004) asserts that several countries have narrowed themselves to only one form of child pornography which is photographs, yet other forms of material existence and are recognized by international law including written and audio-visual material. However, the dynamics characterizing the world of photography have made it difficult to understand and define what material should be categorized as explicit and hence prohibited (Koppelman, 2005). Photographs are the most typical form of visual representations and as such, have formed the major focus for most law enforcement agencies. Taylor and Quayle (2003) have noted that the fact that photographs are essential of two types has proven to be a headache for most legal systems. Additionally, technological advancements have paved the way for the manipulation of images. For instance, an innocent child’s head can be overlaid onto a nude body of an adult projecting the impression that the child is involved in a sex scene. Such visual impressions are among the main causes of the presumed obstacles in defining child pornography and of the emerging question of whether in fact fictitious child pornography should be criminalized. In this regard, Gillespie (2010) notes that inculcating fabricated child pornography into the definition of child pornography can be quite problematic. This is primarily because most libertarian societies only vouch for the criminalization of explicit material in the event that it causes significant harm or damage to the victim. In this context, this limitation is an impediment to fully determining what material qualifies to be prohibited and what should be approved. In many societies, individuals have an exclusive right to use the material, however explicit it might be, provided that it does not cause potential damage to the affected persons.

Similarly, morality as a concept can be used to some degree to define what child pornography is. However, it is part of a highly controversial topic that is deeply intertwined with arguments on freedom of expression. Gillespie (2010) argues that in this day and age, the right to express oneself is regarded highly by most sovereign states including America, and as such, the inclusion of explicit material into the definition of child pornography is associated with serious implications and legal challenges. In essence, it is right to assert that where morality is compromised by the existence of explicit material in the case of children, then such material should be classified as illegal and should constitute some part of the definition of child pornography (Koppelman, 2005). This is because this material leads to continuous moral decadence among children. Contrary to this view, the First Amendment to the US constitution has rendered the government powerless in restricting expression based on messages, ideas, concepts, content and even subject matter (Adler, 2001). It has further intensified the complexity of defining “child pornography” in relation to the nature of the material that is in circulation in most countries. This duality of issues has greatly added to the problematic question of how to define child pornography without infringing upon people’s fundamental constitutional rights.

In conclusion, it is quite evident that there are tensions and corresponding constraints when it comes to defining the scope of child pornography in law. While it is quite clear that most justice and law enforcement systems tend to focus primarily on photographic content exhibiting obscenity, many other forms of pornographic content have been left out of the legal scope in today’s Internet age. This situation is worsened by the fact that countries have enacted different laws on child pornography, all of which are modeled entirely on the basis of the issue of obscenity. This approach that has been adopted by most U.S. states should be subject to review and possible restructuring to fully formulate a coherent framework of laws that directly and strictly relate to child pornography as opposed to generalizations based on the umbrella term “obscenity laws.”

Consequently, Gillespie is correct when he asserts that there are myriad obstacles to be confronted in efforts to come up with a definition of child pornography. It is a controversial and complex issue that has triggered a debate on how to protect the freedom of expression while simultaneously dealing with sexual abuse against children. Child pornography has eroded morals in children in the present world that is dominated by the ease of access to pornographic content in cyberspace. It causes immense harm to humankind and it should be addressed with utmost urgency. This debate should continue until a resolution is arrived at. For now, the issue is rather complex and this explains why a well-balanced definition of child pornography has not yet been fully settled on.

References

Adler, A. (2001). The perverse law of child pornography. Columbia Law Review, 101, 209-273.

Cameron, J. (1992). Abstract Principle v. Contextual Conceptions of Harm: A Comment on R. v. Butler. McGill Law Journal, 37, 1135-1157.

Gillespie, A. (2004). Tinkering with child pornography. Criminal Law Review, 3, 361-368.

Gillespie, A. (2010). Legal Definitions of Child Pornography. Journal of Sexual Aggression, 16(1), 19-31.

Jenkins, P. (2001). Beyond Tolerance: Child Pornography on the Internet. New York: New York University Press.

Kaplowitz, P. (2001). Earlier onset of puberty in girls. Pediatrics, 108, 347-353.

Koppelman, A. (2005). Does obscenity cause moral harm? Columbia Law Review, 105, 1635-1679.

McCarthy, A. J. (2010). Internet sexual activity: A comparison between contact and non-contact child pornography offenders. Journal of Sexual Aggression, 16(2), 181-195.

Seto, M. (2004). Pedophilia and sexual offenses against children. Annual Review of Sex Research, 15, 329-369.

Taylor, M. & Quayle, E. (2003). Child Pornography: An Internet Crime. Hove: Routledge.

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