In order to determine a solution to this despicable crime against children, we must first examine current policies in two of the most globally influential countries on internet policy, the United States and the United Kingdom, as well as other international agencies.
Pornography has been around for centuries. Many arguments have been made about whether or not pornography is socially or morally acceptable, but as long as it involves consenting adults no laws have been broken and (arguably) no lives have been shattered. However, when children are involved in any kind of sexual exploitation, they are by most nations' standards, victims of a crime. Indeed, according to the Website for End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT), child pornography records a crime as it's committed, and the children in the pictures are subjected to many horrific sexual acts including beatings, burnings and tortuous sexual depravities. No pornographic picture of a child has ever been produced without the suffering of a child.
Pedophiles typically establish internet“clubs”which require a specific number of pornographic images of children in order to gain membership. Similarly, pedophiles often keep documented evidence of their activity in the form of indexes of exploited children, with their personal details and records of the exploitation. The images fix the age of a child at a pre-pubertal stage and satisfy the pedophile's lewd fantasies.
Definition of Pornography
To solve the problem of child pornography, we must first look at its definition.
The definition of the term “Child Pornography” is difficult to reach agreement upon. A lawyer, Mike Godwin, with the Electronic Frontier Foundation (EFF), defines several terms relative to content on the Internet that relate to child pornography.
“Child Pornography: Material is illegal regardless of whether it is obscene. Under federal law, it is any visual material that depicts a child either engaging in explicit sexual acts or posing in a `lewd and lascivious' manner, when the manufacture of such material involves the actual use of a real child.”
An important distinction with Godwin's definition is the last portion, “when the manufacture of such material involves the actual use of a real child.” Thus, under Godwin's definition, pseudo-images (either images of children morphed with images of adults, or computer-generated images of children engaged in sexual acts) would not be considered child pornography and therefore would not be considered illegal.
Conversely, under Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, Article 2(c), the definition of child pornography is:
“Any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child, the dominant characteristic of which is depiction for a sexual purpose.”
And finally, the Council of Europe Convention on Cybercrime, defines child pornography as:
“Child pornography shall include pornographic material that visually depicts: a) a minor engaged in sexually explicit conduct; b) a person appearing to be a minor engaged in sexually explicit conduct; c) realistic images representing a minor engaged in sexually explicit conduct.”
It is the differences between definitions that contribute to the inability for the U.S. and the U.K. as well as other countries, to create common legislation criminalizing child pornography.
The United States, the United Kingdom and the United Nations. In the United States, the issue of child pornography has become a threat to the ideal of freedom of speech. Laws on free speech vary from country to country, but because the U.S. is considered a pioneer of the internet, many other countries are watching closely to see how the U.S. regulates the internet.
Several studies focus on challenges to U.S. enactments of laws created to protect children. There are two major arguments: 1) the laws are not constitutional because they threaten the protected right of free speech, and 2) no one owns the internet, so holding an ISP responsible is impossible. Precedent seems to be set time and time again in defense of the pedophile, based on issues of protected speech or, as in the case of Micah Gourde, insufficient evidence proving the defendant actually downloaded child pornography. Mr. Gourde had more than 100 images of child pornography on his computer but the court was disturbed by the number of inferences that would be required to arrive at the result that the defendant was in possession of child pornography.
In the United States, the protection of citizen's civil liberties is prohibiting the protection of children from sexual exploitation. Ethically speaking, the U.S. operates with a deontological approach by protecting the means and individual rights, which may appear morally more appealing; however, the policy is inflexible, impractical, and homo-centered.
In the United Kingdom, European Union (EU) countries have agreed on the need to make a distinction between illegal content and harmful content. The law in the U.K. focuses on the image (sentencing is dependent on the Copine system).
U.K. legislation appears to be less specific in terms of types of child pornographic material, and later legislation is focused on extraterritorial implications.
In contrast with the United States' ethical approach to policy, the United Kingdom uses more of a teleological ethical approach to legislation by maximizing the good in society, creating an easy decision process, and choosing the most popular legislative issues; however, there are problems with measurement and the means of such a process, and its impact on the individual rights of its citizens.
The United Nations Children's Fund (UNICEF), which is mandated by the United Nations General Assembly to advocate for the protection of children's rights, has made significant progress with the issue of sexual exploitation of children, among other threats to children's rights. UNICEF works to help meet children's basic needs and to expand their opportunities to reach their full potential. Two global conventions have been assembled on the Rights of the Child. The first, held in Stockholm, Sweden in 1996, resulted in the landmark U.N. treaty ratified by 191 nations, which states that a child has the right to be free from abuse, to receive an education, and to play - all of which are casualties of exploitation.
A second, follow-up convention was held in December of 2001, in Yokohama, Japan. At the first convention, the Stockholm Congress called on governments to devise national plans of action to reduce the number of children who are sexually exploited each year. Five years later, only about 50 of the 122 participating countries have actually started working on these plans. The plans generally are comprehensive in their goals and objectives, which are in line with the treaty ratified at the Convention on the Rights of the Child.
Future Efforts and Recommendations
Pedophiles are betting that no country will be successful in influencing others to accept an international standard for legislating child pornography. While most countries have laws prohibiting child pornography, the pedophile community has become expert at circumventing attempts at internet regulation, exploiting any weakness in internet legislation at the national or international level.
There must be more focus on the demand side of child pornography-the pedophile. Focusing a campaign aimed at the pedophiles, as well as enforcing the current legislation which protects children will make the most significant impact on child pornography, and will lead to the adoption of similar legislation and campaigns in other countries.
The press has not yet participated to the extent they should, in order to influence nations to make the issue of child pornography more prominent. Publicity is a powerful tool.
The United States and the United Kingdom are influential in policy-making decisions. The U.S. and U.K. should set legislative precedence by agreeing on a transnational standard, beginning with the acceptance of a definition of child pornography that includes pornographic material that visually depicts: a) a minor engaged in sexually explicit conduct; b) a person appearing to be a minor engaged in sexually explicit conduct; c) realistic images representing a minor engaged in sexually explicit conduct. The U.S. and U.K. should then adopt similar legislation.
Furthermore, the United Nations has paved the way for individual countries to adopt, design and implement global policy protecting the world's children against child pornography.
In the search for a solution, U.S. Senator Jim Exon said it best: “it is a weak society indeed that cannot find some constitutional way to protect its kids.” The effort to protect our children is global, so should be the solution.