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A Discussion About Laws Against Indecent Images

22 October 2007

A recent e-mail from a friend asking how low the threshold for indecency is - and an event which occurred around two months ago - made me think, yet again, about the indecent nature of indecency laws. Indecency laws - and their suggested interpretations - are not just unreasonable, they are contradictory and violate the Human Rights Act. The act which is used to prosecute people for indecent images of children is the Protection of Children Act. The text of the amended Act can be found here.

I will begin this article by discussing a recent event which I feel is relevant, then discussing the laws against indecent images of children, how they are intrepreted and the ethical implications of such interpretations.

There’s a popular coffee shop overlooking a stream, where I like to go to relax. Occasionally, young boys play in the water. Around two months ago, the coffee shop was full of people, as was the seated outdoor area, so I sat by the stream where the boys like to play, as did many others (around 40-50 people) who couldn’t find anywhere to sit.

I saw a couple of boys of around 8-9 years old. They were wearing their underwear. As I sat down, they became bored of playing and decided to get dressed. While getting dressed, one of them presumably realised that his underwear was too wet to wear underneath his trousers. So he decided to remove his underwear, using his hands to cover his genitals. After noticing that many people from the coffee shop were staring at him, he decided that it would be funny to remove his hands, climb further up the bank of the stream and start “flashing” people, as did his twin brother, who had now also removed his underwear. An older boy who was sitting on the bank near to me and was a friend of those boys’ brother, started a conversation with me, explaining that the boys often “show off.” This event made me think about the wrongfulness of the criminalisation of nude/naturist images of children, and made me feel even angrier about the fact that the law prevents me - and many other reasonable people - from viewing such images.

I have previously explained why the mere possession of any image should not be a criminal offence, however I feel that addressing the incredibly low threshold for indecency is also important.

Here is the text from section 1 of the Protection of Children Act:

(1) It is an offence for a person—

The sentencing guidelines for sexual offences, which must be referred to in all criminal cases involving sex offences, have been the subject of several alterations. The definitive guidelines for considering sentencing, drafted during the Appeal of R v Oliver (2002) and published May 30, 2007, are as follows:


Level Definition
Level 1 Images depicting erotic posing with no sexual activity
Level 2 Sexual activity between children or solo masturbation by a child.
Level 3 Non-penetrative sexual activity between adults and children.
Level 4 Penetrative sexual activity between children and adults.
Level 5 Sadism or bestiality


Two of three recent precedents have been contrary to the Sentencing Advisory Panel’s definition of Level 1 indecency, as they have involved the successful conviction of defendants who have possessed/made naturist photographs of children. Tom O’Carroll, founder of PIE, was convicted of evading the prohibition on the importation of indecent material, for attempting to import photographs which he had taken depicting boys playing on nudist beaches in Qatar. The Judge believed that his use of a long lens to take photographs was unreasonable, as the children were not aware that photographs were being taken. That opinion, viewed alongside O’Carroll’s political ideals, persuaded the jury to declare the photographs indecent. The fact that weight was given to O’Carrolls beliefs was later decided to be incorrect by the Appeal Court, but it does imply subjectivity within a jury.

Now, clearly the jury believed that children would be embarassed about (or “harmed” by) being seen naked (despite the fact that the boys would not have been aware of the photographer). This completely ignores the fact that the images O’Carroll took were - according to court documents - of boys in public areas.

The event at the coffee shop, where two young boys deliberately removed their clothes and flashed strangers, suggests that some boys, at least before the age of puberty, really don’t care about being seen nude; some even enjoy being seen. These boys wanted people to see them nude; they thought it was funny. If someone had taken a photograph of this, however, the police would have been called and the photographer would have been arrested, likely convicted, then forced to sign the sex offenders’ register, been outed as a paedophile in the local newspaper and effectively had his/her life destroyed. The person wouldn’t have harmed anyone, but he/she may have offended people. Offending the “recognised standards of propriety,” at least as far as anything related to sexual activity or images are concerned, is illegal under UK law. There is no requirement of harm, despite the sentencing guidelines for indecent photographs of children allegedly being designed to correlate sentencing with the level of harm inflicted upon a victim.

So what happens if there is no victim? That is, to say, what happens if nobody is harmed by an image? Clearly if someone produces an image of a naked boy who is happy to be seen naked, that boy is not going to care if people see him naked. Despite this, taking a photograph would be illegal.

A photograph of a naked woman is not inherently sexual, so a naked photograph of a child should not be considered to be inherently sexual either, yet it may be considered to be “pornographic.” Now, heterosexuals may consider a naked photograph of a woman to sexual, and paedophiles may consider a naked photograph of a child to be sexual, however a person’s subjective interpretation of a photograph should be absolutely irrelevant. In fact, according to case law, the jury’s interpretation of the decency of a photograph should be an objective test. You may feel that my argument is flawed, because one could easily state that a photograph of a naked child should therefore be categorically illegal. Unfortunately for those who would put forward such an argument, it is clear to the majority of people that the blanket prohibition of child nudity would harm many classic works. If all photographs depicting child nudity were categorically illegal, watching Lord of The Flies could be considered illegal, however if a jury decided that such a classic is illegal, the millions of people who own the video would be in uproar (and under criminal investigation).

Currently, nude pictures of children will often be considered illegal, especially if they are not “legitimate” images and are in the possession of a paedophile. This is despite the fact that sentencing guidelines supposedly imply that naturist/nudist images are not illegal, and major precedents state that the defendant’s fantasies (such as paedophilia) do not affect indecency, nor does the “context” of an image affect indecency.

So what is the case in reality?

Here is the list of aggravating factors:

1.(i) Images shown or distributed to a child.

2.(ii) Large number of images. (Have regard to the principles in R v Kidd and Canavan [1998] 1 Cr.App.R.(S) 243.

3.(iii) Collection of images organised on a computer in a way that indicates a more or less sophisticated approach to trading or a higher level of personal interest.

4.(iv) Images posted on a public area of the internet or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material.

5.(v) Offender responsible for the original production of the images, particularly if the child or children involved were members of the offender’s own family, or were drawn from particularly vulnerable groups, or offender has abused a position of trust.

6.(vi) Age of children involved.

As you can see, a collection of images which indicates a “higher level of personal interest” is an aggravating factor. Does this allow sentence to be passed for images which the sentencing advisory panel consider to be legal, if the person is a paedophile?

The issue with such an interpretation of these guidelines is that it is contrary to both the Human Rights Act and relevant precedents.

Before I begin to discuss the relevant articles of the Human Rights Act, it is necessary to state that Section 3 of the Act dictates that,

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Article 14 states that:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 13 states that:

“(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

Now, it is well known that nude images of children have been used, controversially, in artistic exhibitions, which implies that there is an artistic element to nude images of children. Cases involving art galleries have never resulted in prosecution, but cases involving the downloading of questionable material from the internet do lead to prosecution. Images which are on the public internet (world wide web), regardless of what they depict, must surely also be defined as having “become available to the public.” Indeed, the judge of the case of Knuller v. DPP stated that “in public” [..] has a wide meaning.” It appears to “cover exhibitions in all places to which the public have access either as of right or gratis or on payment.” Is the internet not “public?”

According to a study (Hall et al, 1995),

“Consistent with previous data (Barbaree & Marshall, 1989; Briere & Runtz, 1989; Fedora et al., 1992; Freund & Watson, 1991), 20 % of the current subjects [who did not identify as paedophiles and who had not committed sex offences] self-reported pedophilic interest and 26.25 % exhibited penile arousal to pedophilic stimuli that equaled or exceeded arousal to adult stimuli.“

Is this section of the public not large enough to suggest that the availability of indecent images with artistic quality could be, according to the Human Rights Act, “in the public interest?” Does this not render the prosecution of people who have viewed publicly available indecent images with artistic quality as contrary to Articles 13 and 14 of the Human Rights Act?

Acknowledging the decision of the judge in R v O’Carroll, are we to believe nude images of children become illegal when they are produced for the purpose of sexual arousal and/or are used for the purpose of sexual arousal? According to the precedent set by the Appeal Court in R v. Graham-Kerr,

“the circumstances and the motivation of the taker [in this case, of two nude images of a boy] may be relevant to the mens rea of the take as to whether his taking was intentional or accidental and so on, but it is not relevant to whether or not the photograph is in itself indecent.”

So, nude images of children, according to sentencing guidelines quoted above, are not automatically indecent (although they are usually deemed to be so by a jury) and the motivation for taking a photograph does not affect indecency (R v. Graham-Kerr). Presumably, the motivation for other offences involving indecent images of children (as defined in Section 1 of the Protection of Children Act) are also not affected by the motivation of the maker, possesser, etc, however this was not tested in the case of Graham-Kerr as the offences of making and possessing did not exist at the date of the defendant’s arrest.

The website of the Kent Police claims that interest in “paedophile material” is relevant when prosecuting a defendant. The implication that such interest affects indecency is an incorrect interpretation of the precedent set in R v. Mould (2000). In the case of R v. Mould, the Appeal Court ruled that evidence of the defendant’s interest in paedophilic material was used only to prove beyond reasonable doubt that the defendant intentionally made an image of a child; it was not implied that the defendant’s sexual interest in children made the image indecent. Indeed the Judge ruled that,

“Mr Burton [defending Mr Mould]was rightly concerned that the jury, in deciding whether or not the photograph was indecent, would wrongly take into account the material showing, apparently, the particular [paedophilic] interests of the appellant.”

The Judge also stated that,

“there was no suggestion that, when the appellant created the .bmp file [a nude pseudo-photograph], he was doing it for some good reason. It is not suggested that he is the parent of the child or that he was doing this as part of some medical research. Indeed his case was, as we have already indicated, that he did not create the file deliberately.”

This does not mean that paedophilic interests cause an image to be indecent, rather that, if a person does not have good reason (such as prevention of crime or medical research) to create an image of a child which is indecent, the image is an indecent image of a child. Another statement which arguably supports Kent Police’s claim is the Judge’s statement that,

“If the test for deciding whether a photograph is indecent or not is whether or not it is the kind of photograph which appears in medical text books, then many of the photographs with which these courts are all too familiar could not be classified as indecent.”

This statement appears to contradict R v. Graham-Kerr, which the Judge in the appeal of R v. Mould incorrectly (in my opinion) dismissed as having no bearing on the case, however it actually re-enforces the precedent set in R v. Graham-Kerr, in that it suggests that, as far as indecency is concerned, the context of the image should not be considered by the jury. As stated in R. v. Graham-Kerr, context (including the presence of a paedophilic orientation) can be used to prove that an image was deliberately made or taken; that is how “interest in paedophile material is relevant.”

The R v. Mould case is still rather interesting, as it does imply that being the parent of a child in a photograph affects indecency. Could it be the case that, in a legal sense, being the parent of a child is “good reason” to make Level 1 indecent photographs of said child? If this is the case, then may it possibly also be true that many Level 1 indecent images are actually not harmful to children and that prosecuting only a specific category is prejudicial, therefore a violation of Article 14 of the Human Rights Act? It would be utterly senseless to claim that children are harmed by an image only because the person who makes the image is attracted to children.

A discomforting aspect of Kent Police’s interpretation of the case is, if the Police fail to interpret the law correctly, how can the average person be expected to understand what he or she can and can’t view?

It is clear that, in reality, nobody is aware of what constitutes an indecent image, as section 7 (3) of the Protection of Children Act implies:

“Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children”

Such a law is highly unreasonable, as it allows for a gross level of subjectivity. No subjectivity from a jury should be allowed, however, as indecency is a question of fact (R v. Graham-Kerr (et al)) and is an objective test.

The guideline stated in Knuller v. DPP is that indecency is “anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.” It is clear that this guideline is lacking in practical application. The question is, are juries as undirected as guidelines suggest, or do the majority of people genuinely consider nude images of children to be “shocking, disgusting and revolting?”

Remember that, as previously stated,

“Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of [PCA Section 7 (3)] as indecent photographs of children.”

Does this mean that an image being a photograph (or pseudo-photograph) makes the image indecent? Is an image indecent merely because it is a photograph/pseudo-photograph, rather than a real-life observation? As mentioned in the example I discussed, some children are not concerned about nudity - and it would be difficult to claim that an 8-9 year old being nude is indecent - yet an image of that would likely be declared indecent by a jury. Nowhere in the Protection of Children Act is it stated that an image being a photograph (or pseudo-photograph) - rather than a real-life observation - affects indecency, indeed it is only stated that the fact that the image is a photograph/pseudo-photograph makes it an indecent photograph/pseudo-photograph. Why is it then, that an event which would not be indecent as an event observed in real-life, supposedly becomes indecent when viewed as a photograph/pseudo-photograph? Is the reasoning behind this prejudicial, in that it suggests paedophilic feelings within the possesser/maker of the photograph? If this is so, it is - as already discussed - contrary to the Human Rights Act and the relevant precedent set in R v. Graham-Kerr.

The Appeal of R v. O’Carroll (2003) is certainly interesting when one considers indecency and factors affecting indecency. I contend that judgments made during the case were incorrect and contrary to precedents set during R v. Graham-Kerr (1988) and R v. Oliver (2003). While some of the issues raised in the case are unethical, in that they discriminate against people with an attraction to children, the primary issue here is a legal one. The question of the indecency of naturist images is raised - quite correctly - by the defence counsel. The Judge of the Court of Appeal stated that,

“A dictum of a judge in one case in this court [R v. Oliver] as to what constitutes a “pornographic image” cannot bind a jury as to what in another case is indecent material, however distinguished that judge may be.”

While this statement is indeed correct, it fails to note that the direction of the Sentencing Advisory Panel, which must be referred to in all criminal cases relating to sex offences, is based - as far as sentencing for indecent images are concerned - upon the case of R v. Oliver. Although the Judge was correct to state that the case of R v. Oliver does not affect the legal interpretation of indecency, it does imply that a person should not be sentenced for offences involving naturist images of children.

Despite the above-mentioned legislation and precedents, a paedophile in the UK who has downloaded any naturist or “erotically posed” images is likely to be convicted.

While the threshold for indecency is unreasonably low, it is also important to consider the issue of charges against people who simply download or possess indecent images of children.

In the UK, minor-attracted people - and others who wish to view images of people under the age of 18 - have to be absurdly cautious, as the alternative would be insane. The British legal system has therefore succeeded in persuading sensible paedophiles to avoid nude or posed images of children, however - despite the highly uneducated claims of some children’s charities - it does not prevent paedophiles having sexual fantasies about children. Indeed, I do not view indecent images of children (for obvious legal reasons), but I do fantasise very frequently about children. All paedophiles have sexual fantasies about children, regardless of whether they view indecent images of children. A diagnosis of paedophilia requires “recurrent, sexually arousing fantasies [..] involving pre-pubescent children.” Indecent images of children do not “create paedophiles,” rather a number of careless people seek indecent images because they are paedophiles already.

The “typical” child molester is not paedophilic and would likely not even be interested in viewing indecent images of children, rather he uses a child as a sexual “partner” because he can’t find an appropiate partner. It is therefore senseless to claim that viewing indecent images of children causes a person to abuse children. The claim that the viewing of indecent images causes a person to abuse is based on statistics which claim that x% of people who sexually assault children also possess child pornography. This is often interpreted to suggest that x% of people who possess child pornography also abuse children, which is a gross manipulation of the statistics. Clearly, people who possess child pornography and sexually assault children are much more likely to be caught than people who only view child pornography, a fact which flaws the statistics commonly used to back up popular assertions.

If any abuse occurs during the production of an indecent image, the abuse occurs before the image is viewed by an unassociated entity who possesses it. Whether or not “Bob” or “Alice” decide to view the image would not affect whether or not the image had been produced. As explained in a previous article at this website, decriminalising the possession of indecent images of children would likely cause the production of indecent images of children to fall, not increase -

The problem with applying the supply and demand theory to people who possess but don’t purchase is that they are not contributing to demand, because the supplier is not interested in producing images for people who are effectively “stealing” them by downloading them for free, for the same reasons that artists don’t record music for people downloading it from file sharing networks. Supply and demand is an economic theory which applies to commercial sale, not products being used for free. Producers of any material do not want their material to be used freely, so an increased interest in freely available pornography is going to harm them. People will be less likely to purchase child pornography if viewing freely available child pornography is legalised, as viewing freely available child pornography will become the safe [and legal] option. Production of child pornography will therefore fall because of a lack of demand, meaning that less children will be abused by child pornographers.

Despite this, many people in the UK are convicted for what is often described as their “involvement in child porn” for possessing non-abusive images, not only for the genuinely harmful act of encouraging the production of abusive pictures. It appears to be the case that laws against indecent images are used as excuses to prosecute paedophiles, rather than to protect children, hence the reason for laws which are incredibly difficult for most people to understand and follow. Indeed, UK laws against indecent images of children are contradictory and contrary to the Human Rights Act.

The Protection of Children Act must be reformed, in order to allow paedophiles to follow the law without the difficulties of interpretation which they currently face, and to provide genuine protection for children instead of an excuse for prosecuting minor-attracted people.

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    7 Responses to “A Discussion About Laws Against Indecent Images”

  1. WM Says:
    October 24th, 2007 at 10:48 am

    “Such a law is highly unreasonable, as it allows for a gross level of subjectivity. No subjectivity from a jury should be allowed, however, as indecency is a question of fact (R v. Graham-Kerr (et al)) and is an objective test.”

    There are two ‘tests’ in our law:

    Subjective (i.e. the belief of the defendant),

    and:

    Objective (i.e. the belief of the jury members).

    These are not the same thing as scientific (or even common usage) objectivity and subjectivity.

    I, also, wish it were not so - but it is.

    Useful article, TY.

    WM

  2. User Says:
    October 24th, 2007 at 11:33 am

    Thanks for clarifying the definitions.

  3. Daniel Says:
    October 30th, 2007 at 12:01 am

    In short…

    …”watch your back”.

  4. User Says:
    October 30th, 2007 at 2:29 am

    Daniel,

    Here’s my opinion -

    Don’t go to any sites which you think may have indecent images.

    Spend (non-sexual) time with children, and use that to develop fantasies for when you’re alone.

    Fight for legal reform.

  5. pete Says:
    January 10th, 2008 at 3:36 am

    Those who are paid to “protect children”….. focus their attention on pedophiles……
    and looking at pictures of young girls on the internet in particular…. when in fact harm is most likely to be done by parents, or a person known to the child…

    The pedophile is the only person in our society who has no rights at all… even though they have committed no harm….

  6. Amelia Says:
    March 30th, 2008 at 4:36 am

    A grown man is not going to look at a nude picture of a child for “art purposes”
    He’s going to masturbate, it’s that simple.
    It’s sick, disgusting.
    Pedophiles should be locked away. To say it’s a free country etc. and that it’s the same as two gay people, or a black man and a white woman together, it’s not!
    they are acceptable
    Pedophilia IS NOT.

  7. User Says:
    March 30th, 2008 at 6:05 am

    “He’s going to masturbate, it’s that simple.”

    Please explain how that harms children. I’m not asking for you to talk about how it’s “morally wrong”, etc. Explain how it harms children.

    “Pedophiles should be locked away. To say it’s a free country etc. and that it’s the same as two gay people, or a black man and a white woman together, it’s not!”

    Paedophilia is not the act of adults having sex with children. Where has this article supported sex involving adults and children?

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