Child pornography: an international perspectiveDate: August 02, 2004
Source: United Stated Embassy Stockholm
Since the mid-80's, according to law enforcement officials in the U.S. and Canada, there has been a noticeable decline in the number of new children depicted in commercially distributed pornography. Much of the currently circulating material contains images reproduced from publications published in the 70's and early 80's. UK law enforcement officials point out, however, that the mid-80's also marked the advent of the camcorder and a proportionate increase in the production of non-commercial amateur pornographic home videos involving new children. However, commercial material recently seized in the United States contained images of new prepubescent children from Mexico and Brazil. Some new commercial pornography material also involves underage teens. A U.S. television programme, Hard Copy, televised a report in February 1996 on underage girls from the U.S. and Europe who are being photographed in Holland by a company that produces the erotic Seventeen magazine. The girls, according to a pediatric specialist applying the Tanner scale, The Tanner scale is a scale for identifying the stages of development in pubescent children. ranged in age from 13 to 18.
Commercial production, while diminished, does however continue to exist and, as stated previously, is on the rise in Japan. Furthermore, the production of amateur child pornographic home videos is becoming increasingly popular--even in the commercial market. A review of child pornography legislation promulgated by different countries around the globe reveals something of a trend towards an increasing commitment to the protection of children from pornographic exploitation.
1. Laws Regulating the Production, Distribution and Possession of Child Pornography
The UNCRC provides a baseline international legal standard for the protection of children from sexual exploitation. Article 34, among other articles which prohibit the degrading treatment of children, explicitly requires countries to take "all appropriate national, bilateral, and multilateral measures to prevent ... the inducement or coercion of a child to engage in any unlawful sexual activity ... [and] the exploitative use of children in pornographic performances and materials." The United Nations Commission on Human Rights' Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the UNCRC and international efforts to sanction those who exploit children for pornographic purposes.
1.1. Asia and the Pacific Rim
Article 175 of the Japanese Penal Code forbids the printed portrayal of adult genitals, intercourse and pubic hair. However, such representation of children's genitalia is not stringently regulated. Furthermore, Japanese commercial producers have created ingenious ways to avoid prosecution or law enforcement intervention by creating sexually explicit materials which just barely avoid depiction of forbidden body parts. Jack Seward, ed., Japanese Eroticism 6 (1993); Constantine, supra note 11, at 160-61.
Several other Asian nations have recently adopted child pornography laws. In 1995, Taiwan passed a law criminalising the production of paintings, video tapes, photographs, CD-ROMs, "electronic signals" and other products depicting indecent conduct or sexual interaction involving persons under 18 years of age. The 1993 child protection law passed in the Philippines (Republic Act No. 7610) includes a provision which prohibits the employment or coercion of children under 18 years of age to perform in obscene exhibitions or indecent shows, whether live or video, or to model in obscene publication or pornographic materials. It also imposes sanctions on the sale or distribution of such materials.
Sri Lanka (Penal Code Sec. 286A) passed similar legislation in 1995 which protects children up to 18 years of age. In Cambodia, a draft proposal (Law on the Abolition of Child Trafficking and Prostitution, Art. 9 A I, ii, iii) for a law against child exploitation includes a provision which prohibits the production, possession, importation, exportation or advertisement of drawings, paintings, writings, photographs, or films which depict persons under 18 years of age in an indecent, obscene, or derogatory manner. The draft law also contain a confiscatory provision (Art. 9B).
In Australia, all States and Territories except New South Wales, have promulgated legislation which makes the mere possession of child pornography illegal. Legislation already existed which makes possession for the purposes of distribution, sale, or exhibition against the law. In 1995, the Australian Customs Service initiated a national intelligence project named Amigo enlisting the public in efforts to establish the nature and content of child pornography being trafficked in and out of Australia. Australian Parliament Report, supra note 24, at 2-3, 38.
Legal measures designed to deal with pornography vary considerably among European countries with no common approach to production, distribution, or possession of pornographic material. In England and Wales, the law makes it a criminal offense to take, distribute, exhibit or possess even one "indecent" photograph of a child (Protection of Children Act 1978). The law defines a child as a person under 16. The determination of "indecency" is a matter for the court. In the Netherlands, the manufacture, dissemination, transport and export of pornography involving children under 16 is illegal (Criminal Code, Art. 240b, Sec. 1). In April 1995, the Code was amended to include stiffer sentences and to include sanctions for the mere possession of child pornography. Norway's penal code was amended in 1992. The section on child pornography applies directly to the introduction and possession of child pornography but not to the production of such. Ellen Hamremoen, National Bureau of Crime Investigation (Nor.), Contribution to Operational Case Feed-back 3 (Nov. 1993). In order to prosecute for production of child pornography, Norwegian prosecutors resort to other sections of the penal code relating to inducing minors to sexual behaviour and contributing to acts of indecency. Id.
Section 207a of the Austrian Penal Code, passed in July 1994, imposes criminal sanctions for both commercial and amateur production and distribution of child pornography as well as for possession and/or acquisition of the same. Germany also recently made possession of child pornography an offense under the German Penal Code. France's Penal Code (Penal Code Art. 227-23) forbids fixing, recording, or transmitting the pornographic image of a minor and the distribution of that image. None of the Eastern European countries, with the exception of Estonia (Penal Code Art. 200/3), however, have laws specifically directed at child pornography.
Many European countries have very rigid mail secrecy laws and mail can be interfered with only under extraordinary circumstances. Additionally, European postal authorities do not possess the police powers of U.S. postal inspectors. Some countries have very strict penalties against sexual intercourse with a child, but very light sentences or fines for child pornography. Furthermore, "sting" operations which are routine in the United States are not practiced in Europe.
1.3. North America
The U.S. is widely considered to be a major consumer of child pornography but it has also been among the most aggressive in dealing with perpetrators through the passage and enforcement of strict child pornography laws. These laws (18 U.S.C. 2251, 2251A, 2252, 2256) currently prohibit the production, receipt, distribution, possession, transportation, mailing and advertising of any "visual depiction" involving the use of a child under 18 years of age in sexually explicit conduct. Sexually explicit conduct includes sexual acts as well as the "lascivious exhibition of the genitals or pubic area of any person." A more recent law (18 U.S.C. 2258) makes it a felony for any person outside U.S. territory to produce or traffic in child pornography with the intent that the materials be imported into the United states--an extraterritorial application of U.S. law to non-U.S. citizens.
Canada has a very comprehensive child pornography law. Section 163 of the Penal Code makes it a crime to import, produce, print, or publish any child pornography which includes representations of children under 18 who are engaged in or who are depicted as engaged in explicit sexual activity. Furthermore, mere possession of child pornography is also now prohibited in Canada.
2. Regulation of Computer Pornography
Since the advent of computer manipulated child pornography, several countries have passed legislation supporting an expanded definition of child pornography which includes "simulated" child pornography (where the person depicted is considered an adult by law but is obviously portraying a child) or "pseudo" child pornography which can be computer manipulated or computer generated pornography. In the United Kingdom, the law explicitly prohibits "pseudo-photographs" which definition includes "data stored on a computer disc or by other...
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