A fellow blogger and Melbourne philospher has asked my view on child pornography. More specifically, he has questioned how it should be dealt with - zero tolerance or with a view to rehabilitate offenders?
I support both a zero tolerance approach with severe penalties for purveyors of such material, including gaol, and compulsory rehabilitation programs conducted by appropriate psychologists and sociologists for the consenting recipients (i.e. not those who accidentally download or receive such material).
That is the simple answer to the question, however the bigger issue is what constitutes child pornography. Most people do not ask themselves this question, and when they do there is often no suitably comprehensive answer. Even government agencies like the Australian Institute of Criminology (AIC) find it a difficult topic to define.
I'll explain further below, but don't hope to see any conclusions, except that I believe that the whole debate is frought with ambiguity, conjecture and the biased perception of the individual.
There would be very few that would argue against the typical public definition of child pornography. Something along the following lines:
"any material depicting a child or children engaging in a sexual act, posing in a sexual manner, or produced for sexual gratification of another person."
The problem with this is that there are several ambiguities to this approach. Such a definition is conditional upon a subjective opinion an what constitutes such things as "material", "child", "sexual", etc.
The Material.
Take for instance my baby photo, lovingly snapped by my parents as I lay naked in the bath at 6 months of age, my family jewels floating carefree in the shallow water for all to see. Pornography? Hardly! At least not to me or my family. But what about someone who found such material sexually arousing? To them it would have the air of pornogrphy just as a Bel Ami production would seem to me.
One person's innocent pic is another person's tool for sexual gratification.
Context is clearly important in this matter.
The Child.
No-one would doubt that a minor (less than the relevant legal age of consent) would be considered a "child" under the definition, but what of jurisdictions where an age of consent might differ from, say, 16 in Western Australia? What of jurisdictions in other nations where the age of consent may be 14 or 21? An enormous grey area lies between a mature young adult, sexually inquisitive youth and an innocent child.
It also begs the question of how we might deal with different scenarios such as:
- a 22yo male who is yet to reach puberty and may look like a pre-pubuscent 14yo.
- a 14yo female who is well developed and looks like a 22yo to any reasonable person.
Sexually explicit material containing either of these people would be defined as child pornography by some and legal porn by others. Now simply swap the gender of the two examples and, depending on the individual's perspective, the status of illegal porn or legal erotica may change.
Similarly, The different maturity and development of teenagers presents a problem in determining how the "reasonable person" might see a certain piece of material. The age (real and perceived) AND the gender of a child are major factors in determining whether material qualifies as criminal pornography or merely X-rated erotica.
The Sexual Behaviour.
Heralding back to the baby in the bath and comparing that with full sexual intercourse we can also see that the behaviour depicted in any material is also relevant to the context and thus the classification.
Take our pre-pubescent 22yo male (bearing in mind he looks 14) and in each of the following scenarios try and determine if it is considered criminal child pornography:
- use his naked photograph in a medical journal.
- in an explicit sexual act with a 16yo woman (i.e. legal age in WA).
- in an explicit sexual act with a 22yo woman
- in an explicit sexual act with a 48yo woman
Now, in each scenario, change the woman to a man. Does it make any difference to the classification? How about if we change him to a typically developed 22 year old who looks his age?
Finally for each of the above scenarios, change the main person to our 14yo well developed girl who looks 22yrs. Does the classification change depending on the gender and age of the people involved? Does it change if she is now 22years old instead of 14?
Throughout this exercise the majority of people will find at least one double standard due to age or gender. Clearly this highlights the ambiguous nature of sexuality and the law.
This issue is one of the most complex we have in our society today. Given that laws against child pornography are made to protect children from predation, more than stopping individual sexual gratification (no-one is legislating against imagination) perhaps the future for these people lies in technology.
In the future, with the increasing sophistication of computer graphics, we will need to determine whether computer generated material is just as offensive as the real thing. At this point it becomes a debate about an individual's unfulfilled desires, rather than protecting innocent children. At that point, where will we draw the line?
I previously mentioned the AIC site and it is well worth reading the various definitions to understand the complex nature of child pornography and the relevant laws.
On a final note, I admit to agreeing with Germaine Greer in her book, The Boy, in which she deals with the subject of the naked human form. Though she specifically wrote about young boys, I share the same enjoyment of both genders in art. Non-sexual nudity, in tasteful artistic representation, has been enjoyed by the masses throughout the ages. I do not consider such art to be pornographic, though others might. Each to his own.
Nudity can be sexualised by any individual for his/her own gratification, but such material must be judged by their context, not purely by the subject's age or gender. The context of someone caught with thousands of naked child pictures is similar, though less repulsive than someone caught with images and/or videos of children in sexual acts. The latter requires a harsher penalty than the first. Our laws need to reflect this as well as differentiate between the purveyors of child pornography and those who collect material for their personal use.
Just like drugs, the dealers are the real criminals preying on vulnerable people (children and the weak-minded), whereas some of the users often just need a helping hand to get them out of the situation.
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