BRIEFING BY THE DEPUTY MINSITER OF HOME AFFAIRS TO THE PARLIAMENTARY HEARINGS ON THE SEXUAL ABUSE OF CHILDREN
PARLIAMENT, 11 MARCH 2002
"We are guilty of many errors and many
faults, but our worst crime is abandoning the
children, neglecting the fountain of life.
Many of the things we need can wait.
The child cannot.
Right now is the time his bones are being
Formed, his blood is being made and his
Senses are being developed.
To him we cannot answer "Tomorrow".
His name is "Today".
(Gabriella Mistral, Chile)
Introduction
In Upington, not far from Kimberley, the City of Diamonds, a 9-month baby girl was raped, allegedly by six men. Rushed to hospital, the little child underwent extensive internal surgery to repair the damage done to her and still remains severely traumatised. Since then, more cases of the rape of baby girls under a year old were reported. Like the Upington baby, these babies had also to undergo extensive surgery. These babies will never recover, either from the physical trauma or the psychological damage, they have suffered. Our society, for these babies, shall, for the rest of their lives, be physically and psychologically toxic. No person should endure such trauma as these babies have had, and must continue, to endure. That babies have to suffer such profound hurt and unimaginable torture in any country is shocking. That it should happen in a country which fought a war to liberate a people from systematic oppression and exploitation is unthinkable. But it did happen. And will happen again and again.
This is the context within which child pornography must be understood. This is the sense of horror that Minister Sisulu said should inform our every effort to deal with this monumental betrayal of our children. Our children have only us to rely on for their physical security and sense of well-being.. They may turn their faces to Heaven but they will see no God for their tears have made them blind. As Gabriella Mistral says, their time is Today. Without urgent help, for them, there is no Tomorrow.
Over and above anything that is said here, it is important to remember that child pornography is not a freedom of expression issue. It has nothing to do with censorship or the freedom of people to express themselves. It has everything to do with the physical abuse and the violation of the human rights of the children. It can no more be legal to allow or encourage the creation of photographs and video footage showing the sexual abuse of children than it can be to allow or encourage the creation of photographs and video footage depicting adults being murdered.
To legalise child pornography is to legalise the continued sexual abuse of children, and worse, to allow people to derive profit and enjoyment, both from its creation, distribution and possession..
Another crucial issue in child pornography, which should forever serve to render it illegal, is the issue of consent. A legal minor cannot consent (at least until the age of 16) to engaging in sexual conduct and no legal minor can consent, legally or morally, to the trading in images of her or him engaging in sexual conduct. The point is that, once taken, the photographs can remain in existence, arguably, forever. Children cannot appreciate that they are being asked to agree to the creation of an image that might be rapidly distributed across the world via the Internet, thereby becoming a permanent record. In other words, a legal minor is being asked, in effect, to give irrevocable consent to something that might harm them for the rest of their adult lives. That is too great a burden to put on the shoulders of a minor.
What is child pornography ?
"The most important obligation of those who become aware of this crime…..is to maintain a sense of horror. We need to maintain a sense of horror about child pornography and to make it the basis of our response to what is happening to our children daily, the world over. This is an essential condition for any genuine struggle against the pervasiveness of this social cancer." (Minister Lindiwe Sisulu, Opening Address to the National Workshop on Combating Child Pornography, Cape Town, May 2000)
Our law defines child pornography as ….any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years engaged in sexual conduct or a display of genitals which amounts to sexual conduct…. This definition is consistent with definitions in most international and national jurisdictions. For the purpose of investigating and prosecuting those engaged in this vile trade, this definition is adequate. However, it does not, and can never express what child pornography is to the child victim. Even the most horrific of images will not adequately convey to us that suffering of the child victim. If the following images are offensive and traumatic, think of the profound trauma that each of the children in these images has had to endure – and must live with for the rest of their lives.
Child pornography is not a genre of pornography or erotica but is, in fact and effect and at once both a form of child abuse and a representation of that abuse . Child pornography is a picture or a description of a crime scene. It is irrefutable evidence that a child has been sexually abused and will in most cases be used to exploit more children. Once a pornographic image is in the public domain, it is likely to be distributed and reproduced, regardless of the fact that the perpetrator has already been caught. To the extent that pictures exist of this inherently evil act, those pictures will follow the child up to and though 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 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 adults. There can be no real understanding of the special horrors of child pornography without an understanding of the way in which it is nothing less than the abuse and torture of children from as young as one week.
What counts as "harm" ?
"…..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 possibly 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 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." (Child Pornography and Paedophilia, Report of the Permanent Subcommittee on Investigations U S Senate, 99th Congress, 2d See. 34 1986)
When dealing with child pornography, one should not be burdened with an
unduly narrow conception of harm. The view that the only harm to be concerned about is one that causes physical injury to identifiable children cannot be sustained for the reason that child pornography harms not only children but society itself. The cultural, moral, religious or aesthetic social environment, as well as a community or group, can be harmed, independent of harm to identifiable 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 the fight against child pornography, no distinction should be drawn between primary and secondary harm, where primary harm is related to the children themselves and secondary harm is the anti-social aspect. Secondary harm may not be ignored simply because no actual child has been harmed in any way.
The special horror of child pornography
"…..child pornography is almost always the record of a crime being committed. The children who appear in such pictures are, at the time the picture is being taken, subjected to degrading and humiliating acts of a criminal nature. In some of the imagery, they are beaten or burnt or are subjected to torturous sexual depravities. When made to pose in lewd situations with others, including other children, they are subjected to psychologically distressing manipulation. No pornographic picture of a child has been produced without the child's suffering. And long after the child has grown up, he or she knows that someone, somewhere, may be looking at their picture, witnessing their degradation and distress. So people who download such images are not benign collectors or simply curious. They are accomplices in crime, perpetuating the lucrative trade that destroys a child's dignity and, in the most severe cases, their health and perhaps their life." (Child pornography: record of a crime, Second World Congress against the Commercial Sexual Exploitation of Children, Japan 2002)
The effects of child pornography
(Summary of findings by 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 and Child Pornography : An International Perspective, ECPAT, Stockholm, 1996)
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 cancer of the cervix. Children who have been 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.
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 child will show the following behaviour :
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 acceptance of 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 the body as an object that can be used or sold to obtain physical gratification or material benefits. 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.
The Supreme Court of Canada, in its recent judgment in the Sharpe case found that ….."child pornography…..is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all members of society suffer when harmful attitudes are reinforced. The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an additional risk of harm that flows from the possibility of dissemination. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal harm is not a valid reason for attenuating the Court's deference to Parliament's decision."
The link between the possession of child pornography and abuse is very strong. A person in possession of child pornography is very likely either to be an active abuser already, or to be on a path that will lead him to abuse later. According to a study by US customs, 80% of all users of child pornography are also child abusers. It has also been shown that child pornography is inextricably linked with the prostitution and sex trafficking of children. According to Dr Irma Labuschagne, a Forensic Criminologist who has given expert testimony in a number of cases, every child sex offender she has had to deal with was "heavily into child pornography". ( "Profiling" Offenders – The Nature of the Beast, Seminar on Child Pornography, Pretoria, June 2001) Recognition of this connection between child pornography and the sexual abuse of children is also implicit in the title of child protection laws in a number of countries. See, for instance, the Republic of Ireland’s Trafficking and Child Pornography Act.
To regard paedophilia therefore as a separate category from incest, organised abuse, pornography and prostitution, ignores the fact that the perpetrator can appear in some or all categories.
The Constitution, freedom of expression and child pornography
"……When a definable class of material, such as that covered by the New York statute (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 protection…" New York v Ferber, 458 US 747 (1982)
In so far as the constitutionality of prohibitions on child pornography is concerned, our own case law, and that of many international jurisdictions, have supported Parliament’s "…..pressing and substantial objective of criminalizing the possession of child pornography that poses a reasoned risk of harm to children." (See, for instance, Justice Madala in the South African case, Case and Curtis (1996 (3) SA 617, Ferber in the USA and Sharpe in Canada) In Sharpe, the Supreme Court of Canada went on to hold that "….Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice……. …..Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves."
The importance of the protection of children is recognized in both criminal and civil law almost universally. International law is rife with instruments that emphasize the protection of children and a number of international bodies have recognized that possession of child pornography must be targeted to effectively address the harms caused by this type of material. There is no support for the protection child pornography under any constitutional provision in either domestic or international law.
Child pornography internationally: incidence and response
Incidence:
The largest police operation ever mounted on any issue, called the Operation Cathedral, was conducted by the British police and Interpol. They uncovered a child pornography ring, called The Wonderland Club, with 180 known members spread across 49 identifiable countries, including South Africa. Members possessed, among themselves, over 750 000 child pornographic images and over 1 800 hours of digitized video. Images of over 1 200 different children were discovered by investigators, in that one operation alone. Membership of the club was open only those who were able themselves to post, on their website, 10 000 original images of child pornography.
The incidence is growing rapidly, too. In 1995, Inspector Terry Jones of the Greater Manchester Obscene Publications Squad in the UK was involved in seizing a total of 12 child pornographic images and all of them were either in the form of photographs or videos. Four years later, in 1999, he seized 41 000 child pornographic images and all except for 3 were on computers - an increase of 340 000% in just four years!
International response
The need for an effective, unified international response is there not only because of the rate at which the images of child pornography are multiplying, but also because of the ease, nowadays, with which people can obtain, possess and distribute it without being detected. Previously, almost all child pornography was traded in hard copy, i.e. books, magazines and videos, and entailed trips down dark alleys to sleazy corner stores where you hoped no-one would recognize you.
Since the advent of the internet, however, thousands upon thousands of images can be received and downloaded in the privacy of your own bedroom. Moreover, with the aid of the commonly available strong encryption technologies, it is even easier for the criminal to avoid detection or hide the evidence of his crimes.
The importance of the protection of children is recognized in both criminal and civil law almost universally. Some of the measures adopted are the following:
Articles 19 and 34 of the UN Convention on the Rights of the Child (CRC)
The Agenda for Action adopted at the First World Congress against the Commercial Sexual Exploitation of Children in 1996 requires States to "develop or strengthen and implement national laws to establish the criminal responsibility of service providers, customers and intermediaries in child prostitution, child trafficking, child pornography, including possession of child pornography, and other unlawful sexual activity;
The International Labour Organization adopted Convention 182 in June, 1999, entitled the Worst Forms of Child Labour in which it was declared against "all forms of slavery or practices similar to slavery, such as the sale and trafficking in children… the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances"
Article 9 of the Convention on Cyber-crime, published by the Council of Europe in June, 2001, in the drafting of which South Africa participated and which South Africa signed in Budapest, also requires all States Parties to act against child pornography.
Specialist Police Units
The trend among states and police forces is to establish specialist police units, as they have done in the USA and the Europe.
The, Italians, for instance, have established a large computer crime special unit. . The UK, Government has established the National High-Tech Crime Unit, which will have an initial staff of 80, about half of whom will be based centrally and the remainder will be spread among local forces to help raise awareness and improve investigative expertise at local police stations. The Innocent Images Project of the FBI in the United States links the investigation and prosecution of child pornography, child abuse and child kidnapping. Hotlines
‘Hotlines’ or ‘TipLines’ are becoming increasingly common in countries with high levels of Internet usage.
Hotlines or TipLines are mechanisms which allow people who have found what they think is illegal material on the Internet to report it, have it investigated and, generally-speaking, if the investigators agree that the material is likely to be found to be illegal by a court, get it removed from any servers located within their jurisdiction or report the matter to the proper authorities of relevant jurisdictions..
In some countries, like the UK and Canada, for instance, Internet Service Providers may be prosecuted for the possession of child pornography on their servers. If, however, they are notified of the existence of such material on their servers and get it removed promptly, then no prosecution follows.
Hotlines and TipLines across the world have formed an association called INHOPE: Internet Hotlines for Europe. It is funded by the EU but is open to Hotlines from any part of the globe. At present, the members are drawn from Australia, Austria, Denmark, France, Denmark, Germany, Ireland, Netherlands, Norway, Spain, Sweden, the UK and the USA.
RECOMMENDATIONS
There must be proper and effective coordination at the level of Government and other role-players in civil society to maximize the impact of measures taken to combat the sexual abuse of children and child pornography.
The expertise and resources of the entire criminal justice system, including the Child Protection Units of SAPS, must be developed to ensure adequate resources, in terms of both trained personnel and technology, to enable them not only to act against child pornographers in South Africa but also to participate in international action against child pornographers, given the borderless nature of the Internet.
It is vital that members of the judiciary gain a proper understanding of the new technologies and the crimes they are facilitating and that sentencing policy reflect society’s abhorrence of the sexual abuse of children and child pornography.
Internet Service Providers must be brought into the fight against the use of the Internet for the sexual exploitation of children and child pornography. Service providers must assist the legitimate needs of law enforcement and be involved in the establishment and maintenance of "hotlines".
In the light of increasing connectivity to the Internet, and the increase in the use of computers in schools, the public must be educated to the dangers to children of unsupervised access to the Internet.
Government must give effect to plan of action of the World Congress Against the Sexual Exploitation of Children to mobilise all the role-players in the fight against the sexual exploitation of children and child pornography.
The unit in the President’s Office dealing with issues involving children must be expanded, including an increase in its personnel and material resources, to play a more pro-active role in this struggle to protect our children, as well as to monitor and report on the extent to which we are meeting our international obligations with respect to the various international conventions and treaties we have signed.
8 The setting up of the "24/7" network, which is required of all countries which have signed the Budapest Cybercrime Convention, must be given some priority. This would enable us to interact with our international counterparts, which is a necessary part of any plan to combat child pornography, given the nature of the Internet.
"These are extraordinary times in the life of our nation, and in such times it is not enough to follow the road. It is necessary to know where it leads, and, if it leads nowhere, to follow another…and not to proceed with the utmost, and almost desperate, rapidity in the wrong direction. When we are confronted with a crisis, we cannot behave as though nothing very important were involved, as if it did not matter if we continued doing what we have done hitherto with just a little more energy. We have to consider whether what we have done hitherto is wise, and, if it is not, to alter it. Our children should not expect anything less of us, for these are crimes against them for which we, as a society, bear responsibility."