MEMORANDUM ON PROPOSED AMENDMENTS TO THE

MEMORANDUM ON PROPOSED AMENDMENTS TO THE FILMS AND PUBLICATIONS ACT, 1996

This memorandum sets out the most important amendments to the Act, as articulated by the national workshop on child pornography and translated into draft form by the task team appointed by the workshop. The criticisms and recommendations represent the collective experience and wisdom of a workshop in which all relevant stakeholders and role-players participated.

The memorandum sets out the status quo, the problems identified and the proposals made to address the problems.

It should be kept in mind that the Act distinguishes between films and publications and categories thereof, between visual images and descriptions and between possession and distribution, and is, therefore, a somewhat confusing Act.

The Act is a radical departure from its predecessors, which allowed the individual little or no freedom. (For a useful legislative history of "censorship", see the Film and Publication Board’s Annual Report for 1998.) As the first Act to regulate films and publications in a new dispensation, where the right to privacy, freedom of expression and other constitutional rights are given full recognition, "teething" problems are to be expected, requiring revisions, from time to time, on the basis of experience and international trends.

The protection of children is the focus of the Act. Of about 48 000 cases on the Regional Court rolls, over 30% are cases involving rape and indecent assault. A significant portion are crimes against children. And cases involving children are increasing, indicative of a breakdown of core values in our society which leaves more and more of our children at considerable risk. Child pornography is anti-social behaviour and harms not only the child-victim but society itself.

This problem is not unique to South Africa. Like South Africa, more and more countries are beginning to recognise the imperatives for firm legislation in the area of child pornography, especially in the light of the ease of distribution provided by the Internet. For instance, in the United States, the Child Pornography Prevention Act, 18 USCS 2252 criminalises knowingly possessing, selling, receiving, sending or transmitting child pornography. In the United Kingdom, section 160 of the Criminal Justice Act, 1988, as amended by section 84(4) of the Criminal Justice and Public Order Act, 1994 makes the possession of an "indecent photograph or pseduo-photograph of a child" an arrestable criminal offence and has been successfully used in a number of recent cases involving the possession of child pornography. In Canada, section 163(1) of the Criminal Code makes the possession of child pornography a criminal offence. See also section 207a(3) of the Austrian Criminal Code, Article 383 bis of the Belgium Penal Code and section 184(5) of the German Criminal Code for European countries which have criminalised the possession of child pornography. Additionally, the Council of Europe’s draft convention on cyber-crime, which is to be presented to the European Council of Ministers later this year, and in the drafting of which, Canada, Japan, the United States and South Africa, in addition to all member-states of the Council of Europe, participated, requires signatory States to adopt legislative measures to establish the possession of child pornography "in a computer system or on a computer-data storage medium" as a criminal offence.

PROPOSED AMENDMENTS

Amendment of section 1 of the Act
Definitions
"Child pornography" is defined in section 1 of the Act.

Introduction
Defining child pornography is no easy task. In the interests of children, any definition should not be so narrow as to be too limiting, thus providing child pornographers with loopholes to escape criminal sanctions. On the other hand, too broad a definition might be so vague as to make it difficult to know just what material is prohibited.

The Act can be circumvented by creating images which, although falling outside the present definition, would nevertheless amount to the sexual exploitation of children, or would be capable of being used for the purpose of the sexual exploitation of children. However, it is not possible to formulate an exhaustive list of possible images that would meet that test. Experience has shown just how deviously imaginative the mind of child pornographers are and therefore some flexibility is called for in the definition.

There are many ways in which the sexuality of children may be exploited. Often the context would determine whether or not an image which may otherwise be innocent would amount to sexual exploitation.

Definition excludes description
In terms of sections 25 and 27 of the Act, read with the definition of "child pornography" and Schedule 1, descriptions of acts with children constituting child pornography (narratives) may be possessed but not distributed, whilst visual images (pictures) may be neither possessed nor distributed. This distinction cannot be justified when the ratio for the prohibition of child pornography includes the use of child pornography to seduce children into sexual activities by lowering their inhibitions and being shown pictures or read stories about other children involved in such activities. There is no good reason to prohibit visual images, including images of persons older, but depicted as younger, than 18 years and not to prohibit descriptions of child pornography. Descriptions of child pornography may be just as harmful as visual images. There is certainly no doubt that descriptions are capable of exactly the same use, and for the same reasons and anticipated results, as visual images – to seduce children into believing that sexual activities are normal, harmless and fun for children. Children should be protected to the fullest extent possible and the definition of "child pornography" should be extended to reflect such full protection by including descriptions of children in sexual activities. This also explains the proposed amendment to section 27 infra.

Requirement that assistance in sexual conduct should amount to ‘sexual exploitation or degradation’ is unnecessarily limiting
This is more so, given the definition of "degrade" as advocating a form of hatred based on gender – a definition that is also far too limiting and should be deleted. It is recommended that the word "degrade" be replaced with a phrase prohibiting the violation or disrespect of the right to human dignity. See, for instance, the remarks of Justice O’Reagan in S v Makwanyane and Mchunu 1995 SACR 1 (CC) at 111 :

"The importance of dignity as a founding value of the new Constitution cannot be over emphasised. Recognising the right to human dignity is an acknowledgment of the intrinsic worth of human beings : human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in chapter 3."

An image or description of a child assisting another person in sexual conduct would always amount to the sexual exploitation of the child. The phrase "which amounts to sexual exploitation" is therefore superfluous. The qualification should be deleted.

The limitation in the definition to a ‘display of genitals’ is too narrow
The definition does not include suggestive and lewd material which might not be an overt display of the genitals but which might serve the same purpose – the sexual exploitation of children. It does not take into account images of children clearly intended for pornographic purposes but which show, not genitals, but other parts of a child’s body.

Proposal of task team
See definition of "child pornography" in amendment
Definition of "degrade" to be deleted and replaced by a phrase protecting the right to human dignity.

2 "Sexual conduct" is, in fact, defined in Schedule 11 (See the Act)
The problem is that "sexual conduct" is defined for the purposes of the Schedules. Yet the term is already referred to in the definition of "child pornography" – and there is no other definition in the Act. It makes sense to define "sexual conduct" for the purposes of the Act, and not just the Schedules, and to include it in the definitions section of the Act.

Present definition is too limiting
The present definition is too limiting in that it excludes the anal region, which is also involved in sexual activities. As well, the word "lewd" should be substituted with the word "undue", which points towards that which is intolerable to society.

(iii) A problem that police officers have had to deal with in a few recent instances involved the distribution of pornographic pictures and magazines by school children, including one as young as 8 years. No provisions exist in cases where no person has actually handed or given such materials to children but which were, nevertheless, easily accessible to and by such children. Since the children concerned were too young to be prosecuted, and their parents had not committed any offence, the matters were dropped. The workshop felt very strongly that the meaning of "distribute" should be extended to include the failure by parents, especially, to take reasonable steps to prevent access to their collection of pornographic materials by their children.

(iv) See proposed amendments in (1) and (2).

Amendment of subsection (2) of section (5) of the Act
3 In the light of the 1999 amendment to section 6 of the Act, "the President" should, in fact, read "the Minister". This is a simple "house-cleaning" proposal.

Amendment of section 17 of the Act
4 (i) The problem is with section 17(1)(c) and (d). Schedules 3 and 4 provides
for the imposition of appropriate age restrictions. The Board has established the following categories of age groups : 10, 13, 16 and 18. It will be confusing to the public to mark as "R18" or "F18" a publication which has been, in fact, classified as "10". The proposed amendment will avoid such confusion, without losing the focus and intent of section 17.

(ii) The task team has also recommended the introduction of a section which will
give publishers and/or distributors an opportunity to submit, prior to distribution, any publication which may contain Schedules 1 or 2 materials. At present, if a publication has been classified, say "18", distributors would have to recall all such issues from distribution points, display the "18" age restriction on each issue, and then return them to their distribution points. The proposed amendment will allow publishers and/or distributors an opportunity to voluntarily submit such material before they are distributed for sale. The proposed amendment does not impose any obligation on publishers/distributors to submit publications prior to distribution - but merely provides an opportunity for them to do so if they wished.

The solution is the substitution of section 17 by the proposed amended section 17.

Amendment of section 18 of the Act
5 (i) Although subsections 26(1)(a) and (d) create the offences of distributing or
exhibiting films which have not been classified and distributing/exhibiting films without having been registered with the Board, the Act does not impose a positive duty on a distributor/exhibitor to either submit films for classification or to register with the Board.

(ii) Section 18(4) is problematic. Subsection 18(4)(a)(iii) requires a classification
committee to classify a film as "R18" if it falls under Schedule 8. However, Schedule 8 provides for the imposition of appropriate age restrictions. The Board uses "10", "13", "16" and "18" age categories. It would be confusing to the public if a classification display on a film reads "R18" when, in fact, it has been classified, say "10". Parents would not be able to decide whether or not a film that displays an "R18" classification is appropriate viewing for their child of 8 years.

(iii) The proposed amendment (5) addresses both the problems identified above.

Amendment of section 20 of the Act
Section 20 of the Act provides for a review of a classification decision of the Board by the Review Board. However, its subsection (3), dealing with its decision-making powers, is contradictory : while providing that the Review Board "may refuse the appeal…or allow the appeal", it goes on to restrict its powers. The last part of subsection (3) states : "Provided that the classification, as so amended, and the conditions so imposed, shall not be more restrictive than the classification or condition appealed against." The effect of this proviso , for example, may be illustrated thus : a publication with sexually explicit visual presentations is classified "16", following a complaint that it be classified by a concerned citizen. Unhappy with that classification and convinced that the publication should have a more restrictive classification, the concerned citizen appeals to the Review Board. But the Act will not allow the Review Board to impose a higher age restriction, even if it agrees with the concerned citizen that the publication should be restricted to "adults only" and therefore should have been classified "18". A possible solution, applying principles of Administrative Law, would be for the Review Board to refer that publication back to the Board for it to be re-examined and re-classified. This would be time-consuming and costly.

The better solution is the proposed amendment [6] to delete the proviso entirely.

Amendment of section 25 of the Act
7 The proposed amendment (7) follows from amendments to section 17 dealing with the confusion caused by the "R18" and "F18" classifications.

Amendment of section 26 of the Act
8 (i) The workshop recommended that the two offences in section 26(1)(a) be
separated into two distinct offences.

(ii) The workshop saw no bona fide reason for excluding the broadcasting of films classified "X18" or "XX" as a section 26(1) offence.

Subsections 26(1)((b) and (e) have been re-drafted for clarity.

(iv) The proposed amendment (8) addresses the problems identified in section 26.

Amendment of section 27 of the Act
Offences relating to child pornography
9 Section 27

The Problem is the confusing nature of the Act when having to deal with materials containing child pornography. Child pornography is defined in section 1 with reference to sexual conduct, which is defined in Schedule 11. In terms of clause 1 of Schedule 1, the visual presentation of child pornography is to be classified XX, while descriptions of child pornography are to be classified XX in terms of clause 2 of Schedule 1. If a film contains child pornography, it is classified XX in terms of Schedule 6. If classified XX, the possession of only visual images is prohibited. Due to the distinctions between films and publications, visual presentations, scenes and descriptions, possession and distribution, and classified and unclassified materials, and possible offences involving child pornography are spread over sections 25(a), 26(1)(a), 26(4)(c), 27 and 28.

The limitation of child pornography, in section 27, only to visual presentations would be in conflict with the proposed definition of child pornography. The prohibitions in section 27 should extend to both the visual presentations and descriptions of child pornography. This would be consistent with the finding that paedophiles use both visual presentations and descriptions to seduce children into sexual activities.

(ii) The requirement of "knowingly " could be interpreted to mean that dolus eventualis would not suffice as the requisite form of intention and should be deleted. It should be sufficient to constitute the offence if a person foresaw, and was reconciled, to the possibility that the material contained child pornography. The requirement of positive knowledge that it did indeed contain child pornography puts the test too high : the accepted meaning of dolus should apply and, in any event, the onus is on the prosecution to prove mens rea.

(iii) There is no good reason to separate the offences into (a) for publications and (b) for films. The two subsections should be consolidated to create a single
offence, regardless of the medium.

The offence should include the broadcasting of child pornography – there is no valid reason to exclude broadcasters from the ambit of this criminal offence.

Section 27(2), requiring the State to prove that the Board has not made a decision that the material does not contain child pornography, has caused some confusion. It is for the Court, and not the Board, to determine whether or not the material forming the subject-matter of the charge amounts to child pornography. Apart from granting exemptions on application for bona fide purposes, the Board should not perform any function with respect to child pornography other than referring materials to the police. Child pornography, as a serious arrestable offence, should be a matter for the police, the prosecuting authority and the courts.

Section 27(2) is not only unnecessary but is also a costly prescript which only serves to delay prosecutions. Police officers from all over the country have had to travel to Cape Town to deliver, by hand for obvious security reasons, materials to the Board. Further, the relevant Board member must appear in person to testify, since no provision exists that allows the fact to be proven by means other than viva voce evidence. The deletion of this subsection would not violate a person’s right to a fair trial since it is always open to such person to raise the fact of exemption, etc as a defence – this is knowledge peculiar to the accused which can be raised as a defence even prior to arrest. It is therefore recommended that subsection 27(2) be deleted in its entirety.

Subsection 27(3) also came in for unanimous criticism by all participants of the workshop with respect to both the requirements :

firstly, the requirement that the written authority of the Director of Public Prosecutions be obtained prior to the institution of a prosecution was severely criticised. The ratio for this requirement is probably that a responsible decision should be taken at the highest level and is a remnant from the previous Act on Indecent and Obscene Photographic Material, where such a provision was necessary in view of the broad definition of indecent and obscene. Since the definition was so broad, the authority of the Attorney-General was necessary to prevent prosecutions involving trivial, harmless materials. The workshop recommended that it should now be left to the National Prosecuting Authority to issue directives in this regard and that legislative prescripts are not necessary. Prosecutors in lower courts are daily encumbered with having to decide whether or not to prosecute in many serious cases, including rape and the sexual abuse of children. An accused is not without administrative remedy where a decision to prosecute is taken at a lower level of authority : representations may be made to the Director, and even the National Director, of Public Prosecutions and even to the High Court for a review of any such decision. and

secondly, the requirement that the written authorisation of the Director of Public Prosecutions be obtained prior to the issue of search warrants was also severely criticised. Offences regarding child pornography are, primarily, harm-based. The workshop concluded that it made no sense that, while the provision is aimed at the protection of children, police would have to wait until they have written authority from the Director of Public Prosecutions before carrying out a search of a premises. There seems to be no good reason, in law or otherwise, for this special requirement with respect to child pornography – there is no similar requirement with respect to other criminal offences and valid reason exists to depart from the explicit and general provisions contained in the Criminal Procedure Act regarding search and seizure, with or without a search warrant.

Subsection 27(3) should be deleted in its entirety.

There is a need to impose a legal duty on those with knowledge to report child pornography to law enforcement authorities. Given the heinous nature of the offence, the anonymity offered by the Internet and the need to act swiftly and effectively where children are concerned, a positive duty as an extraordinary measure is justified. This measure would apply, for instance, to photographic studio/shops which process films or to a computer maintenance/repair shop which discovers child pornography on a computer sent in for repair or maintenance.

Children are not properly protected from exposure to harmful materials through access to such materials as a result of the negligence of others. At present, the Act only prohibits the positive act of distributing or displaying such materials to children. Police have reported instances of children, some as young as 8 years, "sharing" pornographic magazines in schools. Almost all of them confessed that they found the magazines "lying" about in their parents’ bedrooms. The police were powerless to act against such parents. It is recommended that a positive duty should be imposed on adults to take all reasonable steps to ensure that their collections of pornographic materials are not so easily accessible to children. This would not only address a central concern of the Act – that of protecting children from disturbing and harmful materials – but would also provide police with a "prosecutable" offence. This provision in no way trenches on the right of an adult to possess pornographic materials but imposes the reasonable obligation to ensure that such materials do not fall into the hands of children.

Child pornography is not a "classifiable" product but an arrestable offence and should be treated as a matter for law enforcement authorities. All references to child pornography in the schedules should be deleted. The exemption provisions of the Act are sufficient to provide for those circumstances where material containing child pornography might be dealt with for bona fide lawful purposes. For purposes of clarity and ease of reference, all offences relating to child pornography and the protection of children therefrom should, as far as possible, be dealt with in a single section.

Although a message placed on the Internet is included in the definition of "publication", and section 2(b) makes the exploitative use of children in pornography on the Internet punishable, the Act does not contain any further provisions to deal specifically with child pornography on the Internet.

The problem is that the Internet, now the preferred medium for the distribution of child pornography, presents the biggest challenge in so far as child pornography is concerned. The Internet is an uncontrolled world-wide network of computers and offers paedophiles and child pornographers unprecedented opportunities, and the anonymity, to ply their reprehensible trade.

Every person who makes available child pornography on the Internet is, by definition, a distributor. A person who knowingly accesses such material is in possession – mere fortuitous access, of course, will not constitute criminal possession.

The following measures should be considered:
the South African Police Services maintain an updated list of Internet addresses that contain child pornography and that service providers be informed of such addresses. This would be done not under specific legislation but as a law enforcement function.

a duty should be imposed on service providers to take all reasonable steps to prevent the hosting of or access to such addresses and to any other addresses containing child pornography that come to their knowledge. This is a requirement, for instance, under German, Canadian and United States law and is being considered for adoption by a number of other countries.

in order to assist the police identify and investigate the distributors and possessors of child pornography, a duty be imposed on service providers to furnish, on demand, particulars of users who have gained access to or distributing child pornography. Service providers may, in terms of section 205 of the Criminal Procedure Act, be compelled to furnish such information but the process is lengthy and delays investigations. The protection of children demands swift action. Further, service providers should be under a legal duty to report child pornography to the police, with particulars of the persons involved, as soon as they have knowledge of such activities.

What is therefore required from an Internet service provider is to take all reasonable steps to assist in combating child pornography. What is reasonable will depend on a number of factors, including the nature of the service provided. In the light of the harm inherent in child pornography, it is entirely reasonable that a duty of care is imposed on service providers. The Act should therefore include provisions to deal with child pornography on the Internet.

(xiv) Proposal. See proposed amendments (9) including definitions of Internet service providers and Internet address in proposed amendments (2).

Amendment of section 28 of the Act
10 The proposed amendment to delete section 28(3) is for the reasons set out in 9(v) above.

Amendment of section 30 of the Act
11 (i) The proposed amendments to section 30(1) follow proposed amendments to
sections 25, 26, 27 and 28.

The workshop recommended that the Act distinguishes between more serious and less serious offences, and recommended that section 27, which is the prohibition on child pornography, be regarded as the most serious. The current maximum of five years imprisonment was rejected as not sufficiently impressive of the seriousness of the offence and an increase to a maximum of ten years was very strongly recommended and is consistent with international trends.

The "predominantly" aggravating circumstances requirement is unnecessary, given that presiding officers have a duty to weigh aggravating and mitigating circumstances. There is no need to be prescriptive in this regard.

A number of offences in the Act are of a technical nature :

distributing or exhibiting a film which has not been classified
distributing or exhibiting a film that has been classified XX
distributing or exhibiting a film classified X18 without a licence
distributing or exhibiting a film without having been registered with the Board, and
distributing or exhibiting a film without displaying classification details.

The workshop recommended that the Board be authorised to impose administrative penalties for these technical offences. Representatives of the police, as well as of prosecutors, were unanimous that these technical infringements of the Act could just as effectively, but more quickly and at less cost, be dealt with by way of administrative penalties. Section 62 of the Customs and Excise Act provides a useful model for such a system of administrative penalties.
The workshop was also concerned that the Act does not provide for the prosecution and punishment of crimes committed by South Africans outside the Republic. Given the borderless nature of the Internet, extra-territorial jurisdiction with respect to South African citizens and permanent residents is necessary to effectively combat child pornography. Such a provision will also facilitate and promote international cooperation in an area of concern where such cooperation is critical. The proposed amendments provides for the prosecution of South Africans who return after committing an offence in terms of this Act, avoiding the costly and time-consuming extradition process. Clearly, not all of the offences in the Act can be committed outside the borders of the Republic. An example of an offence that can be committed abroad is one in which the impugned conduct is that of creating child pornography.

An amendment dealing with presumptions and proof was considered necessary to obviate the need for viva voce evidence, of a purely formal nature and which will rarely be in dispute, by a member of the Board. Apart from the fact that the executive of the Board consists of only three persons, who would have to make themselves available for appearance in courts anywhere in the country, having to present viva voce evidence to prove that a film was not classified, or classified XX, or that the distributor is not registered with the Board, was considered time-consuming and costly. The proposed amendment does not create a reverse onus and will certainly not violate any constitutional right to a fair trial.

For the proposal, see amendment (11).

Amendment of Schedule 1
12 The amendments to Schedule 1 follow as a result of amendments to other sections of the Act, in particular, the recommendation that child pornography be regarded an arrestable offence and not a classifiable product. The workshop also concluded that scenes of incest and rape should be included in Schedule 1, while the re-drafting of clause (1)(d) is intended to bring it more into line with the concept of human dignity.

Amendment of Schedule 2
13 This proposed amendment to Schedule 2 also follows amendments to other sections of the Act

Amendment to Schedule 3
14 The proposed amendment brings Schedule 3 into line with the proposed amendment to section 17.

Amendment to Schedule 6
15 See the comments with respect to the amendments to Schedule 1 above.

Amendment to Schedules 11 and 12
16 See comments in (2) above.

CONCLUSIONS
In the light of the problems experienced internationally with respect to child pornography, the Act, even in its present form, can be described as advanced, and appropriately so in the interests of children. For instance, child pornography is already defined to include images created or altered electronically. However, the amendments proposed are made as a result of problems that have been either experienced or foreseen by all relevant role-players, including the international experts who participated in the workshop on child pornography. The proposed amendments are not only consistent with anti-child pornography laws of most countries, but is also consistent with international instruments concerning children, as well as with the International association of Prosecutors Best Practice Series No. 1 – Recommendations on Combating the Use of the Internet to Exploit Children.

Section 28(1)(d) of the Constitution provides that every child has the right to be protected from maltreatment, abuse or degradation, while section 28(2) stipulates that a child’s best interests are of paramount importance in every matter concerning the child. In so far as the proposed amendments place limitations on the rights of others, the limitations are reasonable and justifiable in a society which makes the best interests of the child of paramount importance.

Child pornography is not a core value protected by any constitutional right or freedom. "When the effects of these provisions to protect children are examined in their overall context, the benefits of the proposed amendments, and of the Act, far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy. The Act, and especially the proposed amendments, are intended to prevent harm to children resulting from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented. Anti-child pornography provisions benefit society as a whole as it sends a clear message that deters the development of anti-social attitudes. These provisions do not trench significantly on free speech possessing social values since there is a very tenuous connection between the possession of child pornography and the right to free expression."

HARMFUL EFFECTS OF CHILD PORNOGRAPHY
Although the majority of South Africans are satisfied that child pornography is so overwhelmingly devoid of anything redeeming of it, and accept that its complete prohibition does no violence to the principles underlying the Bill of Rights entrenched in the Constitution, too few are aware of its harmful effects on children, in particular, and society, in general. Neither inflammatory rhetoric about the threat to freedom of expression nor ill-informed opinions help to make the issue of the harmful effects of child pornography any clearer.

What counts as "harm" ?
When dealing with child pornography, one should not be burdened with an unduly narrow conception of harm. One must reject the view that the only noticeable harm is one that causes physical injury to identifiable individuals. The cultural, moral, religious or aesthetic social environment as well as a community or group can be harmed independent of identifiable harms to members of that community or group. Issues of human dignity, no less real for their lack of scientific measurability, are also central to the question of harm.

When harm is considered in this broader way, there are acts which must be condemned and prohibited not only because the sexual exploitation and abuse of children might thereby be eliminated but because social conscience demands it.

In thinking about child pornography and harm, no useful purpose will be served by drawing any distinctions between primary and secondary harm, where primary harm is related to the children themselves and secondary harm is the anti-social aspect. Secondary harm is no less important to consider simply because no actual child has been harmed in any way.

The special horror of child pornography
It should be clearly understood that what is commonly referred to as "child pornography" is not a form or genre of pornography or erotica but is, in fact and effect, the sexual abuse and exploitation of children. The harm resulting from child pornography is considerably wider in scope, nature and effect than the kinds of concerns often expressed with respect to sexually explicit materials involving only adults. There can be no real understanding of the special horrors of child pornography without an understanding of the special way in which child pornography is nothing less than the abuse and torture of children from as young as one week.

Child pornography, especially in its visual form, become a permanent record of the sexual exploitation of children. To the extent that pictures exist of this inherently non-consensual act, those pictures follow the child up to and through adulthood and the consequent embarrassment and humiliation are harms caused by the pictures themselves, independent of the harm attendant to the circumstances in which the pictures were originally made.

The effects of sexual exploitation on a child
A Theron : Child Pornography : Towards an understanding of its dynamics and its effect on the child victim, The Morality of Censorship, W S Vorster (ed), University of South Africa, 1989) :

(a) Physical harm
Most children who are sexually exploited are prematurely introduced to sexual activities that can cause serious injuries and threaten physical health. Sexual intercourse at too early an age increases the risk of developing cancer of the cervix. Children who are sexually abused often develop urinary infections, genital sensitivity and soreness and anal irritation. Besides the danger of sexually-transmitted diseases, the child may be infected with the AIDS virus – a "death sentence" for the child victim.

(b) Psychological effects
Sexual abuse has a negative effect on a child’s intellectual and emotional wellbeing, due to the inability of the child to integrate such experience with its physical, emotional and psychological level of development. Exposing a child prematurely to sexual activities can be regarded as a more serious crime than homicide as it results in the "emotional and spiritual murder" of the child.

The longer a child is exposed to sexual abuse and participation in pornography, the greater the possibility that the following behaviour will be shown :

increased use of psychic energy to dissociate and suppress the sexual experiences leaves the child vulnerable and less able to seek realistic solutions
excessive anxiety, depression, feelings of guilt and self-blame contribute towards the child becoming an easy target for other types of victimisation and exploitation
to cope with the trauma of the experience, the deviant sexual behaviour is accepted as normal; identification with the abuser takes place, which leads to accepting the role of victimiser, which is linked to feelings of low esteem and a negative perception of the self. The child comes to regard sex as divorced from affection and regard their bodies as objects that can be used or sold to obtain physical gratification or material benefit. This attitude is transferred to others who are then exploited in the same way.
feelings of bitterness, disappointment and distrust develop towards adults. As awareness increases that adults who are supposed to be protective offer no help or security, children develop psychiatric problems and may become suicidal.

Child Pornography and Paedophilia : Report Made by the Permanent Subcommittee on Investigations, U S Senate, 99^th Cong. 2d See. 34 1986 :
"…..the pain suffered by children used in pornography is often devastating and always significant. In the short term the effects of such involvement include depression, suicidal thoughts, feelings of shame, guilt, alienation from family and peers, and massive acute anxiety. Victims in the longer term…..will likely suffer a repetition of the abuse cycle (this time as the abuser), chronic low self-esteem, depression, anxiety regarding sexuality, role confusion, a fragmented sense of the self, and possible entry into delinquency or prostitution. All…..will suffer the agony of knowing the record of their sexual abuse is in circulation, its effects on their future lives unknowable and beyond their control. That may well be their most unhealing wound."

Child Pornography : An International Prespective, submitted by ECPAT to the World Congress Against Commercial Sexual Exploitation of Children, Stockholm 27-31 August 1996):

The uses of child pornography include :
arousal and gratification of sexual desires
validation and justification of paedophile behaviour, using child pornography to convince themselves that their behaviour is not abnormal but is shared by thousands of others
to lower a child’s inhibitions, using pictures and stories to assist in the seduction of a child and to encourage reluctant children to freely participate
preservation of a child’s youth, ensuring that there will always be an image of the child at the age of sexual preference
blackmail, to ensure lifelong silence of the victimised child by threatening to show the pictures to parents and peers
a medium of exchange, as a means of establishing trust and camaraderie with other paedophiles and molesters as proof of their good intentions when establishing contact with other exploiters
access to other markets and children, and
profits.

"Arguably then, child pornography does not merely involve the abuse of the individual child victim depicted, but rather can be used to perpetuate the sexual exploitation of other children who have not been pornographically exploited. Furthermore, child pornography serves to desensitise society and to send a message that children are legitimate sex partners."

As was stated in New York v Ferber, 458 US 747 (1982)….."When a definable class of material, such as that covered by the New York statute (i.e. prohibiting the distribution of child pornography), bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck and it is permissible to consider these materials as without First Amendment"s ( i.e. freedom of expression) protection….."