(Update 2014-06-12): Professor James Grant, an Associate Professor of Law at the University of the Witwatersrand, has published an article on his site, titled “Child Pornography: Distribution by Parents“, in which he explores the implications of the Criminal Law (Sexual Offences) Amendment Act which also deals with child pornography. That Act also has a pretty broad definition of “child pornography”, possibly even broader than the Films and Publications Act, and is even more problematic for parents. I especially like his comment on the law (and not just because he mentions me):
This is an analysis of the law as it is. It is not a comment on what the law ought to be. I’m not sure our law should be this strict. But then I wish I didn’t live in a world full of depraved monsters. Paul Jacobson has already made all of the sensible remarks. Put the best interests of your child above any of your interests. All I can add is alot of scepticism about human nature. I have met and studied the wrong kind of people and am probably now speaking as a father of the two year old girl I looked after this morning. People are always amazed that their wonderful, kind and friendly neighbour turns out to be a monster. We must never forget for one moment that evil and depravity is banal and that monsters must live somewhere. But here is the problem, in our era of immediate communication and instant access, everyone is your neighbour.
You should definitely read his article too.
The National Prosecuting Authority’s recent warning that “any image of a naked child is child pornography” has, understandably attracted quite a bit of attention. Why is “any image of a naked child” pornography? According to the NPA’s Advocate Bonnie Currie-Gamwo –
… the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it.
The NPA cautioned parents against publishing naked photos of their children online as the NPA considers this to be child pornography and the NPA may well prosecute parents who don’t heed the warning. This is problematic for both parents who have become accustomed to sharing photos of their kids growing up as well as photographers commissioned to do family shoots, in particular popular newborn baby shoots and who may have published some of the photos from these shoots in their online catalogues, with or without parents’ consent.
What is “child pornography”
Child pornography is a significant problem and the ease with which content can be shared online has only contributed to child pornography’s proliferation. That said, the NPA’s blanket statement that “any image of a naked child” is child pornography may be too broad. Unfortunately the NPA doesn’t seem to have specified which laws it interprets so broadly.
One possibility is that the NPA is referencing the Films and Publications Act which regulates “the creation, production, possession and distribution of films, games and certain publications” in order to –
- provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care;
- protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and
- make the use of children in and the exposure of children to pornography punishable.
The Films and Publications Act defines “child pornography” as follows:
“child pornography” includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted, made to appear, look like, represented or described as being under the age of 18 years—
(i) engaged in sexual conduct;
(ii) participating in, or assisting another person to participate in, sexual conduct; or
(iii) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation;
The Act states that any person who –
(a) unlawfully possesses;
(b) creates, produces or in any way contributes to, or assists in the creation or production of;
(c) imports or in any way takes steps to procure, obtain or access or in any way knowingly assists in, or facilitates the importation, procurement, obtaining or accessing of; or
(d) knowingly makes available, exports, broadcasts or in any way distributes or causes to be made available, exported, broadcast or distributed or assists in making available, exporting, broadcasting or distributing,
any film, game or publication which contains depictions, descriptions or scenes of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children, shall be guilty of an offence.
Perspectives on “sexual exploitation” of children
The term “sexual conduct” includes a variety of sexual acts and this is the focus of the first two parts of the “child pornography” definition. These two parts are fairly clear but it is the third part which is possibly what the NPA is referring to –
showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation
The Act doesn’t define “sexual exploitation” so we need to understand what this term means in order to understand the scope of this part of the definition. The World Congress against Commercial Sexual Exploitation of Children defined the “commercial sexual exploitation of children” as:
sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object.
The UK National Society for the Prevention of Cruelty to Children describes “sexual exploitation” as follows:
Child sexual exploitation (CSE) is a form of sexual abuse that involves the manipulation and/or coercion of young people under the age of 18 into sexual activity in exchange for things such as money, gifts, accommodation, affection or status. The manipulation or ‘grooming’ process involves befriending children, gaining their trust, and often feeding them drugs and alcohol, sometimes over a long period of time, before the abuse begins. The abusive relationship between victim and perpetrator involves an imbalance of power which limits the victim’s options. It is a form of abuse which is often misunderstood by victims and outsiders as consensual. Although it is true that the victim can be tricked into believing they are in a loving relationship, no child under the age of 18 can ever consent to being abused or exploited.
The United Nations’ task force for Protection from Sexual Exploitation and Abuse describes “sexual exploitation” in the following terms:
“The term “sexual exploitation” means any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.” (UN Secretary-General’s Bulletin on protection from sexual exploitation and abuse (PSEA) (ST/SGB/2003/13))
These three explanations of “sexual exploitation” when it comes to children have common elements:
- Manipulation, coercion or an abuse of a relatively vulnerable position for sexual purposes;
- Children’s lack of legal, cognitive or even emotional capability to consent to being exploited sexually.
The idea of sexual exploitation lies at the core of what most people think about when the topic of “child pornography” is raised and it is a vile set of behaviours that do terrible harm to the most vulnerable members of our society. As a parent and as a human being, there is really no justification for this sort of conduct.
Any naked pictures?
The question, though, is whether a parent publishing naked photos of his or her children “amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation”? This question is distinct from a different question, namely whether parents should be publishing naked photos of their children, even if it isn’t child pornography? This second question has more to do with your children’s right to privacy and how you are effectively making decisions for them about how little privacy they will have in a connected world where the Internet doesn’t forget.
Returning to the “child pornography” issue (based on the Films and Publications Act, at any rate), the NPA’s contention that any image of a naked child is child pornography seems to be too broad. The NPA seems to be relying on the last part of the definition which whether the photos are “capable of being used for the purposes of sexual exploitation”? Or, as Advocate Currie-Gamwo put it:
… the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it.
Regardless of how your child is depicted in the photo, if the photo can be abused by others, the NPA seems to be saying that falls within “purposes of sexual exploitation”. Going further, parents who publish these photos must be held accountable for the depraved “others” misuse of those photos of your children.
I don’t practice criminal law but that strikes me as a particularly chilling approach to criminal liability and it may not be consistent with how the Films and Publications Act describes the nature of the offence which I outlined earlier. The Act lists what seem to be a series of positive acts and references “knowingly” doing certain things. If a parent were to be held accountable because a paedophile downloaded a photo of his or her child and somehow used it “for the purposes of sexual exploitation”, I wonder whether the parent’s potential negligence could be used to hold the parent liable, even if the parent reasonably ought to have known that this was how the photos could have been misused?
Where does this leave us?
Aside from depictions of children engaged in or participating in forms of sexual conduct, the Films and Publications Act seems to target descriptions or depictions of children’s bodies that amount to actively manipulating, coercing or abusing children, in the process taking advantage of their vulnerability, for sexual purposes. This sort of conduct is clearly abhorrent.
Whether content amounts to child pornography isn’t always clear and there is certainly room for interpretation based on the context but classifying “any image of a naked child” as pornography seems to be interpreting the law too broadly, especially if the possible consequences for parents sharing these sorts of photos with friends and family with innocent intentions can be so severe.
What parents should seriously consider is whether they should share seemingly innocent photos of their naked or partially naked children online. As I mentioned above, the Internet doesn’t forget and when you publish photos of your children publicly, you make decisions about their present and future privacy for them without them being able to make a meaningful decision themselves.
Until this sort of issue reaches a court and is decided (possibly on an interpretation of the law or an assessment of the parents’ right to privacy as a counterweight to the NPA’s scrutiny), we are left with the NPA’s threats of dire action and deciding whether sharing photos of our children is worth the risk posed by an arguably overzealous group of prosecutors. In the context of that uncertainty, here are a few suggestions:
- If you feel the urge to publish a naked photo of your child, remember the NPA’s view that it is child pornography and also the reality that there are people who scour the Internet for photos of children to meet their depraved needs. Ask yourself if you want to fuel those needs for the sake of attention from your friends and family?
- If you decide to share photos of your children, limit who you share the photos with. It may not help you from the NPA’s perspective but limiting the photos to people who you know and trust keeps those photos out of the hands of those you don’t and adds a little more protection of your children’s privacy.
- Photos of children in sexually suggestive or explicit poses are not ok. The law clearly criminalises these sorts of photos so don’t take them and don’t share them.
Regardless of whether the NPA’s interpretation is justified, one clear principle of our law when it comes to children is that we always ask what is in their best interests. Is publishing photos of your naked children in their best interests, or just in yours?