Internet subcultures and pathways to the use of child pornography

With continual advances in Internet capability the child pornography market is experiencing a boom in demand and supply. Attempts to reduce the market challenge legislators, law enforcement agencies, practitioners and researchers alike – due in large part to the decentralised and global nature of the Internet. Much research has focused on frequent users of child pornography and whether such behaviour is interrelated with child sexual assaults. This article instead draws attention to onset, the first deliberate viewing of child pornography. It presents the results of a three-month study of a global Peer-to-Peer network, isoHunt. Analysis of the site’s Top 300 search terms indicated that child pornography is consistently shared. Risk factors for onset are discussed, including the potential normalisation of child pornography among Internet subcultures. Strategies are discussed to encourage subcultures to inhibit child pornography use and to increase understanding of the harms associated with such material. Implications for legal systems, policy and research are explored.     

Now you see it,now you don’t: digital images and the meaning of ‹possession’

The advent of digital technology has had a profound impact on the production and distribution of child pornography. The international trade in such material is a major focus of law enforcement agencies around the world. Central to these efforts is the offence of ‹possession.’ However, concepts of possession in the criminal law evolved in the context of tangible items such as drugs, and their application to intangible data presents significant challenges. Drawing upon the laws of Australia, Canada, England and the United States, this article analyses the concept of criminal possession in a digital context. While courts and legislatures are adapting to these new challenges, in some cases it is argued that the offence of possession is being stretched too far. It is suggested that some of these difficulties may be avoided by utilising an offence of ‹accessing’ child pornography. Senior Lecturer, Faculty of Law, Monash University. I am grateful to Dr. Dale Smith for his helpful comments on an earlier draft of this article.     

Prosecuting 'child pornography': Possession and taking of indecent photographs of children

This article examines the application of 'child pornography' law by police, prosecutors and the courts and presents the key findings from the first national study conducted into child pornography trials in the Crown Court in England and Wales against a wider statistical analysis of proceedings for possession of 'child pornography' in the Magistrates' Court. The findings show that there are very few prosecutions in the Crown Court and, of defendants proceeded against, most are involved in the taking of photographs rather than in distribution or possession per se . Notwithstanding, few of these defendants are charged with any additional sexual offence, although in the act of taking an indecent photograph of a child some further offence(s) must inevitably be committed. The findings suggest a relationship between child pornography and child sexual abuse. Defendants engage in disavowal and minimizing strategies, while judges also fail to recognize the dangerousness of those defendants convicted of possession or distribution. Sentencing continues to reflect the view that such child pornographers are benign and prison terms remain at the lower end of the tariff range.     

Charging children with child pornography – Using the legal system to handle the problem of “sexting”

No one would disagree that the purposes and aims of child pornography laws are legitimate and necessary. Recently, however, these laws, which have the ostensible aim of protecting children, are instead being used to punish children and dissuade the new phenomenon of “sexting” in the United States. “Sexting” refers to the use of mobile phones with built-in cameras to produce and distribute images of oneself in a sexually provocative or revealing position. The potential danger that this trend poses to minors is huge. Photographs produced by the use of “sexting” can be distributed to unintended third parties, often leading to embarrassment and harassment. Moreover, senders are also in danger of being charged with possession and distribution of child pornography, regardless of the fact that they are minors and the pictures are often of themselves. Not only is charging minors with child pornography a rather new phenomenon, it also appears to be a strategy that several states are adopting. This paper will look at the growing trend of charging minors who engage in “sexting” with child pornography charges by a case study of an actual prosecution, what the consequences of such a conviction entails in the United States, legislative responses, and an analysis of the appropriateness of using the legal system as a way of dealing with this problem.     

Human Dignity of “Offenders”: A Limitation on Substantive Criminal Law

The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability. Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, which allows us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential part of the self—his sexual fantasies—within himself. Dignity demands that our actions convey an attitude of respect towards human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect into the police is viewed as an “informant.”     

High road in regulating online child pornography in South Africa

Online child pornography is a repulsive reality which cannot be ignored; the biggest child pornography manufacturing ring in South African history was cracked with the arrest of eight family members. There are more than 116 000 Internet searches daily for child pornography. Pornography is no longer confined to consenting adults, children are not only being exposed to pornographic material but are increasingly being used as victims of child pornography. In South Africa, the Internet and Cell phone Pornography Bill tabled in 2010 aims to make it illegal for Internet and mobile phone service providers to distribute pornography or permit it to be distributed. The objective of the Bill is to protect children from child pornography and women from the indignity of being seen as objects of pornography. This paper takes as its focal point the continuing crisis which centres on the conceptual framework, the existing legislation regulating online child pornography and measures to curb infringement.     

The three dimensions of online child pornography offending

Abstract

The internet has opened up opportunities for non-contact sex offending, such as the viewing of child pornography. This paper proposes a model for the classification of child pornography offenders as an aid for their assessment and treatment, deducted from empirical studies and existing typologies for child pornography offenders. Different subgroups of child pornography offenders may be described according to three dimensions: (1) type of offending, (2) the motivation behind child pornography offending and (3) the situational and social engagement in the offending behaviour. Distinct pathways of child pornography offending can be identified, related to differing criminogenic needs, severity of offending, and appropriate assessment and treatment strategies for the offenders.     

Extreme Concern: Regulating 'Dangerous Pictures' in the United Kingdom

This article begins with an exploration of section 5 of the recent Criminal Justice and Immigration Act 2008, otherwise known as the 'Dangerous Pictures Act' which outlaws the possession of 'extreme images', and the Rapid Evidence Assessment belatedly used to justify the legislation. We then examine the claims of the growth, dissemination, and widespread availability of material which 'glories in sexual violence' and its putative 'effects'. This current crisis over the meanings of pornography highlights the rhetorical function of the conceptual discourse of 'pornographication', its links to problematic figurations of the consumer or viewer of explicit materials, and how the identification of 'extreme' pornography has given voice to a range of anxieties about media spectacularization of the body. We end by arguing that opposition to the legislation is not just a matter of protecting personal freedoms or refusing to recognize the existence of harms; instead, we propose that academics will need to question the very parameters on which the impulses to legislate are based.     

Cyber pornography in India and its implication on cyber café operators

Cyber pornography plays an accessory role in negative social issues such as child abuse, violence against women, rape, inequality, relationship and family breakdown, youth crime, promiscuity and sexually transmitted diseases. Cyberspace and the pornographic matter transmitted through it have created challenges for India’s antiquated laws. The lack of jurisdictional boundaries and the sheer volume of traffic that the Internet can handle, as well as the potential for anonymity have resulted in a complete lack of control over what appears on the Web at the click of a mouse button. Before there was no liability of a cyber café owner but with the introduction of the Information Technology Amendment Act, 2008, the responsibilities of Cyber Café owners have only increased. This paper deals with the Cyber pornography, its legal implications and the liability of cyber café owner under the Information Technology Amendment Act, 2008.     

The Reclassification of Extreme Pornographic Images

Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government's attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.     

占有的重新定性及其实践应用

在类型化占有产生形态的基础上，借用霍菲尔德的权利理论对占有的性质进行探讨具有一定价值。在法律不考虑其产生原因皆予以保护的意义上，占有具有事实属性；在考量其正当性保护基础的意义上，占有在具体的法律关系中又具有多样的权利属性。占有性质的重新理解能够使占有制度发挥更为丰富、有效的实践功能。     

‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.     

Child pornography possessors: Comparisons and contrasts with contact- and non-contact sex offenders

Abstract

The advent of the internet has facilitated a dramatic increase in the number of individuals accessing and possessing child pornography and a corresponding increase in referrals for assessment and treatment. Questions remain regarding whether child pornography possessors are more similar to or different from other types of sex offenders, and whether or not assessment and treatment protocols for contact and non-contact sex offenders are applied appropriately to child pornography offenders. The present study compared 50 child pornography offenders, 45 non-contact sex offenders and 101 contact child molesters. The results indicated that the three groups were more similar than different; however, child pornography offenders were distinguished by greater academic and vocational achievement, fewer childhood behaviour problems and by select relational variables. Recidivism rates were low for all groups.     

The hate that dare not speak its name: Pornography qua semi-political speech

In this essay we shall examine the contemporary jurisprudential thinking and legal precedents surrounding the issue of the sanctionability of pornography. We shall catalogue them by their logical presumptions, such as whether they view pornography as speech or act, whether they view pornography as obscenity, political hate-speech or anomalous other, whether they would scrutinize legislation governing pornography by a balancing of the harm of repression against the harm of permission, and who exactly they view as the victims.We shall take a special interest in the most recent, but unsuccessful, attempt by a subgroup of feminists to proscribe pornography by treating it as neither political speech nor sexual speech but speech which causes harm which is both political and sexual. They would like it to be considered as a special kind of odious propaganda undeserving of protection because it promulgates a mental state conducive to criminal activity, and hence is criminal in and of itself. However, the repression of propaganda, even odious propaganda, is not so easily accomplished in this country.Most anti-censors have emphasized the uncertainty of the causal connection between pornography and sexual violence. We shall contend that this is not the essential issue, and that, even if we agree with the allegations of pornography's prurient non-intellectual appeal and its tendency to excite criminal hostility, the current understanding of the Bill of Rights allows sanctioning only under the stringent requirement of the showing of a clear and present danger of specific and immediate acts.We raise the question of whether there should be a new standard for speech which is simultaneously political and sexual, and/or for speech whose harmful message is presented subliminally, on the grounds that such speech may not be adequately opposed by counter speech in the marketplace of ideas.     

基于指示交付的动产所有权移转——兼评《中华人民共和国物权法》第26条

我国物权法第26条规定了指示交付的方式,通过转让基于占有媒介关系的原物返还请求权,使出让人无须占有媒介人的同意和协助,就能移转动产的所有权,更无须将第三人的占有限于"依法"占有。出让人是否通知占有媒介人,并非动产所有权移转的要件,而只是设立动产质权的前提,并在债法领域发挥保护债务人的作用。为使无占有的出让人也能同其他占有人一样移转其动产所有权,以满足合理的交易需求,建议借鉴德国通说,允许当事人仅根据其合意来移转所有权,该种情形超出了物权法第26条的文义范围。我国法院不少判决以转让提单、仓单等交付证券作为适用物权法第26条的情形,有误解之嫌。当事人以该类证券的交付替代证券项下货物的交付,仍然是适用物权法第23条的现实交付。此类交易方式虽法无明文,但应根据商事交易习惯予以认可,以便证券项下的货物便捷流通。     

Pornography, Pragmatism, and Proscription

The Criminal Justice and Immigration Act 2008 criminalizes the possession of extreme pornography, namely, images of bestiality, necrophilia, and life-threatening or serious violence, and is the immediate context for this article which seeks to present a pragmatic liberal humanist critique of pornography regulation. Such a critique, derived in particular from the writings of Nussbaum and Rorty, presents an alternative case for regulation, eschewing the visceral competing fundamentalisms which characterized the 'porn wars' of the 1980s and 1990s. Whilst moral and epistemological philosophers squabble with radical feminists and radical libertarians, extreme pornography can nurture real injustice and ruin real lives. A pragmatic liberal humanism demands a pragmatic response to extreme pornography. The first part of this article will revisit the longer history of the 'porn wars'; the second describes the parameters of a pragmatic liberal humanist critique; the third examines the shorter history of pornography regulation written into the provisions now enacted in the 2008 Act.     

Jurisdiction and Scale: Rent Arrears,Social Housing,and Human Rights

This article draws on the recent work of Mariana Valverde on jurisdiction and scale to frame a study of the interaction between mandatory possession proceedings brought by one particular type of social housing provider – housing associations – and national as well as human rights law. It was the explicit political choice to focus social housing provision on housing associations, as opposed to local authorities, which opened up the mandatory possession jurisdiction. The essence of the argument is that, despite the apparent incommensurability of these different scales and jurisdictions, they are able to accommodate each other quite happily. Two sets of texts are used to develop this argument. First, consideration is given to the legal technicality through which mandatory possession proceedings might be challenged. Second, we draw on data from a study of housing associations practices and policies on the use of one particular mandatory ground of possession for rent arrears, demonstrating the way in which scale and jurisdiction, political rationality and technologies intertwine.     

美国打击色情物品犯罪的司法实践及困境

美国联邦最高法院从1957年开始掀起审查色情案件的高潮,形成了一系列先例,确立了"硬核色情物品"和"儿童色情物品"不受宪法第一修正案保护的原则.但是美国社会,尤其是联邦最高法院的大法官们对色情物品的危害、淫秽物品的标准以及色情物品受不受宪法第一修正案的保护等问题一直争论不休,导致色情物品泛滥成灾.     

持有型犯罪争点探微

持有型犯罪中争论较大的两个问题就是持有的构成与持有的性质。持有是主客观的统一 ,只要行为人主观上认识到所持物的存在、客观上控制特定物品就可构成持有 ,无需认识所持物品的性质 ,控制并不受时空限制。刑法中的行为不同于自然意义的行为 ,它是具有社会意义的人的举止 ,因此否认持有的行为性是没有根据的。作为与不作为的界限在于所违反规范的类型 ,持有作为第三种行为类型无论在形式逻辑上还是事实上都不能成立。持有的性质只能视具体情况而定 ,通常情形是不作为 ,在仅有获取持有行为时才是作为     

Governmental filtering of websites: The Dutch case

Following the example of Norway and other European Countries, such as Sweden and Denmark, in April 2007 the Dutch government started filtering and blocking web pages with child pornographic content. In this paper we present a research into the technological, legal and practical possibilities of this measure. Our study leads us to the conclusion that the deployment of filters by or on behalf of the Dutch government is not based on any founded knowledge concerning the effectiveness of the approach. Furthermore, the actions of the Dutch law enforcement authorities do not avail over legal powers to filter and block internet traffic. Consequently the Dutch filtering practice was found to be unlawful. The government could enact a law that provides the police with the relevant powers. However, child porn filters always cause a certain amount of structural overblocking, which means that the government is then engaged in structural blocking of information that is not against the law. This would be in conflict with basic rights as laid down in the European Convention on Human Rights and Fundamental Freedoms and in national legislation. Maintaining a blacklist that is serious in size (a necessary condition for being effective), and at the same time is up-to-date and error-free (which is needed to prevent overblocking), is very labour-intensive, if not impossible to maintain. From the Dutch national police policy perspective it follows that putting so much labour in maintaining a blacklist cannot be considered as a police task. Why then did the Dutch police start filtering? In a society where child pornography is judged with abhorrence, in which safety is rated higher then privacy, and in which managers and politicians frequently have a naive faith in technology, the advocates of internet filters against child pornography quickly find wide-spread support. Although this paper refers to the situation in The Netherlands, it includes a number of elements and issues that are relevant to other European States as well.