Copied this from an article I was thinking of publishing a while back. Although it relates to UK legislation, I put this out as a topic of discussion that seems relevant to this thread.
Every day in the UK, the ‘Child Exploitation and Online Protection’ unit (‘CEOP’ - a department of the ‘National Crime Agency’ [‘NCA’]) and ‘The Internet Watch Foundation’ (‘IWF’) - along with certain other variously described child protection agencies - undoubtedly make thousands of child sexual abuse images each year. Similarly in other countries, law enforcement agencies and their allies are also making such images. This is not my opinion, this is how the law itself describes the process of how Child Sexual Abuse (‘CSA’) images are loaded onto a computer hard-drive or memory storage device, and this is done by these organisations with total impunity.
The legal framework that allows these actions in the UK is the:
“Memorandum of Understanding Between the Crown Prosecution Service (CPS) and the National Police Chiefs’ Council (NPCC) concerning Section 46 Sexual Offences Act 2003”
Section 4. of the memorandum explains the reasons behind the purpose of the act:
" The Sexual Offences Act 2003 includes at section 46 an amendment to the 1978 Act of creating a defence to a charge of “making”. A defence is available where a person “making” such a photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. "
Now this provides for how someone can “make” images without fear of prosecution (or at least conviction) for downloading these images, but it doesn’t redefine the terminology; it is still “making” the images regardless of legality.
Now you might say I’m being trivial, and this argument is about semantics. However, consider the case that is put forward to justify why this is usually classified as a criminal act.
The viewing and making of indecent images causes real harm to real children. It is far from a victimless crime.
The above heading was displayed on Bedfordshire Police Force’s internet web page dedicated to this topic. At no point does it make the distinction that who is viewing or making these images alters the harm it causes. A similar message is repeated on the gov.uk website (below).
The article goes on to say; “The children in the pictures are real children, who suffer real harm.” This, in fact, is not necessarily the case, as pseudo-images (drawings, cgi and animated cartoons depicting children in sexual acts) are also illegal; these are classified as “prohibited images”. Also banning these images therefore degrades the argument as to the reason images of actual real children are banned.
In America the FBI have not only made images, and continue to do so, but in the past have actually put those images back on line as a “honey trap”; ‘the ends justifies the means’. Other organisations and agencies from other countries all view “indecent” & abuse images for the same reasons mentioned above; all with the same level of impunity. Europol have put forward evidence cropped out of stills and photographs of the original images; it still means they had to “make” those original images.
Part of The Marie Collins Foundation; Stop it Now! (the “self-referral site and phone-line for people concerned about their own or others inappropriate sexual interest in children”) has this to say on their website:
Making an electronic copy of a sexual image of a child. This includes copies of images that are purposefully saved by a user on to a device and the automatic copy saved to a device when an image is clicked on. In addition, it includes images automatically downloaded from file sharing websites.
Sexual drawings/Manga: Sexual drawings of children are also illegal in the UK. Manga is a style of drawing for comic books and novels, which originates from Japan. There are many Manga drawings depicting children in sexual situations. These are illegal to view in the UK."
The British government’s website gov.uk_indecent-images-of-children-guidance-for-young-people provides similar information:
making’ can include opening, accessing, downloading and storing online content
these are images of real children and young people, and viewing them causes further harm
The term ‘making’ could include:
- opening an attachment to an email containing an image
- downloading an image from a website onto a computer screen
- storing an image in a directory on a computer
- accessing a website in which images appeared by way of an automatic “pop up” mechanism"
In 1842, Punch magazine joked, ‘We are a trading community – a commercial people. Murder is, doubtless, a very shocking offence; nevertheless, as what is done is not to be undone, let us make our money out of it’.
Even today, there is no specific law banning a person from witnessing a murder online, with a few exceptions; it being the murder of a child whilst being sexually abused, or of a politically motivated terrorist murder. (At least the authorities are not shy in admitting there is a political aspect to the latter example.) There might also be applications in the controversial ‘joint enterprise’ and ‘secondary liability’ laws for example - but simply viewing a video of a random murder with no alterior motive than wanting to witness it is not a crime. Sometimes you even get to watch it unfold on live TV:
“Virginia TV Journalists Shot Dead Live On Air”
“The video remains on Facebook with a warning message about its graphic nature.”
The only logical conclusion then; the true reason the viewing of CSA images “causes further harm” depends on the reason why the images were viewed, and not (as the reasons put forward say) simply because: “The viewing and making of indecent images causes real harm to real children.” - despite the fact that no one puts forward how the “why” actually translates into harm. Presumably, the “why” itself is that the person gets sexually aroused, but it would be inconceivable that a law could be formulated, much less prosecuted, making it illegal to be sexually aroused, whatever the reason.
Conversely, how or why would the “real harm to real children” be any less harmful due to the reason for the viewing? Where is the research and the evidence for this assumption? And why is this apparent difference not referenced when discussing these issues in legislation, in the media and amongst proponents confronting child abuse?
I have never had any images of myself, as a child, being engaged in sexual activity. Thus I cannot, in all fairness, say for certain how I would feel about people illegally accessing such images had they existed or subsequently been used as evidence (not that, as a child, my opinion would be of interest to anyone except, possibly, the person convicted of, ahem, “making” them). However, if such images did exist, and they were used as evidence, or held on police databases for reference, I’m fairly sure I wouldn’t be particularly happy about that.