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Inquisition 21
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Criminalising thoughts about children
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Viewing pornography is a world away from enacting its contents
Criminalising thoughts about children
Sandy Starr
Child pornography is probably the most morally contentious type of internet content. It is distinct from almost all other kinds of pornography, in that photographing the abuse of a child is (in most countries) photographing a crime.
But the US and UK laws regarding child pornography have recently been extended for the digital age. They now conflate the actions of child sex offenders with artificially created images.
In the 1990s, authorities in both the USA and the UK became concerned that with widely available software such as Microsoft Photo Editor and Paint Shop Pro, sexual fantasies about minors could be satisfied by images artificially
assembled from preexisting elements. The UK addressed this concern in a clause of the Criminal Justice and Public Order Act 1994. The Act incorporated revisions to a previous piece of legislation outlawing child pornography, the Protection of Children Act 1978. Every reference to an 'indecent photograph' in the earlier Act was changed to refer to an 'indecent photograph [or pseudo-photograph]' (11).
Two years later in the USA, the Child Pornography Prevention Act 1996 was signed into law by Bill Clinton. Again, this incorporated revisions to a previous piece of legislation outlawing child pornography, 18 USC 2256(8). A depiction of a minor could now be classified as child pornography (and
therefore as illegal) where 'such visual depiction has been created, adapted or modified to appear that an "identifiable minor" is engaging in sexually
explicit conduct' (12). ('Identifiable minor' here means indentifiable as being a minor, not identifiable as a particular minor).
Since in both the USA and the UK, a child no longer actually has to be photographed in order to commit the offence of creating an indecent photograph of a child, the emphasis of these laws has shifted from criminalising acts against children towards criminalising thoughts about children.
This has taken place largely without contest in the UK, but in the USA, where there is a strong tradition of free speech and civil liberties, the Child Pornography Prevention Act 1996 has been challenged by the American Civil Liberties Union (ACLU) (13). 'There is a real difference between touching children sexually and touching computer keys to create images', the ACLU rightly argues (14).
Most people find the very idea of paedophilia so objectionable that the distinction between paedophile acts and paedophile thoughts seems irrelevant. But the distinction is crucial - viewing pornography is a world away from enacting its contents.
A sexual predilection for minors rightly strikes most of us as vile. But in a free society, should we not tolerate individual fantasies that are not acted upon with harmful consequences? Otherwise, who is to say where we draw
the line?
It is hard cases such as these, where content seems beyond the possibility of defence, where the case for free speech online is fought or lost. Standards of free speech on the internet should be maintained not by technical default (as they are at present - wherever regulation of the
network is technically possible, it tends to be pursued), but by debate and argument on and offline.
The exchange of thoughts and items that profoundly offend your sensibilities, between people to whom you wouldn't give the time of day, is a necessary (and relatively small) price to pay for the greatest
communications medium in human history.
(11) Protection of Children Act 1978, Section 1. See also Criminal Justice
and Public Order Act 1994, Section 84, subsection 2.
(12) 18 USC 2256(8). See Cyber-rights and cyber-liberties
(13) See the ACLU website
(14) From the New York Times
Sandy Starr is a contributor to The Internet: Brave New World? (Hodder &
Stoughton, 2002). He also writes for Spiked.
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