Child Nudity: Indecency vs Illegality
22 December 2007If you are a regular reader of this website, you will already be aware that many people in the UK are convicted of making and possessing indecent images of children - contrary to the Protection of Children Act (1978) and the Criminal Justice Act (1988) - simply for viewing naturist images of children.
At the same time, many people are not convicted or even charged for such material. As a matter of fact, the BBFC (of which the child abuse profiteer Michelle Elliott is a member) states that “simple nudity may be unlikely to be considered indecent”. As such, the BBFC does not cut non-sexualised child nudity from films.
Evidently, the application of indecency is highly inconsistent.
Recently, I have stumbled upon a very relevant piece of case law dating from 2002. Now I believe that defendants have an opportunity to question such convictions, not simply from a moral sense, but also from a legal sense in a court of appeal.
The Judge in R v (1) GRAHAM WESTGARTH SMITH (2) MIKE JAYSON ruled that:
The necessary mens rea was that the act of making should be a deliberate and intentional act with the knowledge that the image was or was likely to be an indecent photograph or pseudo-photograph of a child.
So, in order to be successful, the prosecution must prove that:
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(1) The defendant deliberately downloaded the image
(2) The defendant knew that the image was indecent or likely to be indecent.
Now, as I have just discussed, one cannot say that non-sexualised nudity is likely to be indecent, we can only say that it may be indecent, depending on the opinion of the jury. So, it is probable that many people who have been convicted of possessing/making indecent images of children - especially those who don’t really understand such legislation - won’t (and can not) have been aware that what they are viewing is (or is likely to be) indecent. Due to this, one could argue that many of the convictions involving naturist images of children since 2002 are contrary to this precedent. In other words, although naturist images may be interpreted as indecent, it may be legally incorrect to convict people for offences involving only naturist images.
At this point, I must mention that the preceding paragraph is only my interpretation of the law; it has not been tested in any court. Furthermore, even if you were to win in court, you would still have to deal with being arrested, charged and outed in your local tabloid. I will personally continue to avoid nude images of children and I strongly recommend that you do the same. If you are currently being prosecuted for possessing/making non-sexualised nude images of children, however, you should consider discussing this potential defence with your lawyer.
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