dissertation

Child Pornography Law: Does it Protect Children?

Katherine S. Williams

Department of Law, University of Wales, Aberystwyth

Journal of Social Welfare and Family Law 26(3) 2004: 245-261

Abstract: This article examines the ways in which the legal system attempts, through actual legislation and a graded sentencing policy, to control child pornography. The motives for legislating in this area are discussed through looking at parliamentary, ministerial and judicial comments before the article offers some analysis of the discrepancies between intentions and realities. Finally, some issues concerning effective enforcement are briefly raised. It concludes by suggesting that the function of law needs to be more carefully defined so as to focus more clearly on child protection and on the surest means of delivering this.

Keywords: Child protection; Child pornography

Introduction

The study of the control of child pornography, and thus of attempts to legislate in this field, is both complex and opaque. Tate (1990) and Edwards (2000) argue that use of the word `pornography' trivialises the material, likening it to consensual adult sexual images, whereas they depict it as consisting of images of children being violently sexually abused. Each of these perspectives gives an incomplete and distorted picture. Certainly, at its worst, child pornography is the portrayal of the sexual assault of a child or children and is proof of a serious crime.

However, there are depictions of acts which would be caught by the child pornography legislation but which do not record a crime being committed.

The media and the public view child pornography as axiomatically dangerous and in need of control, tied up with child sexual abuse and as part of paedophilia; it is thus condemned by association, without needing to find a voice of its own. However, not all photographs fall into that category and the concept of child pornography is more elusive. Should it include all images of nudity? What about family photographs of children in their baths?' Should it include any image that the jury or judge finds distasteful, indecent or obscene? Should it include any images that the paedophile (one who is sexually attracted to children, though they may never act on that attraction) may find sexually stimulating, even though many find fully-clothed children stimulating? Should it only include images obtained following the abuse of a child? The answers to these questions will depend on who or what the law is trying to protect and therefore on why the law is there. Are we protecting children from the abuse involved in the making of the images? Are we protecting children from possible abuse by paedophiles? Are we protecting moral standards? Are we trying to prevent people from being sexually stimulated by children even if they do not act on that desire? Are we protecting children from secondary abuse (Svedin and Back, 1996) (especially on grooming, see Gillespie (2003) and Wyre (1987), though neither adduce evidence of its use)? The answers to these questions may throw light on this area of law.

The article examines the way in which the legal system attempts, through actual legislation and a graded sentencing policy, to control child pornography. The motives for legislating in this area are discussed through looking at parliamentary, ministerial and judicial comments before some analysis is offered of the discrepancies between intentions and realities. Finally, some issues concerning effective enforcement are briefly raised.

Control of Child Pornography

A. Laws

Under the laws against child pornography in England and Wales, a child is considered to be an individual under the age of 18 (s. 45 Sexual Offences Act 2002; 16- and 17-year-olds are able to consent to some activities).

Control of the area is split into two main facets. Firstly, making child pornography is controlled under section 1(1) of the Protection of Children Act 1978, which prohibits four aspects of the activity:

1. Taking, or permitting to be taken, an indecent photograph of a child; making a photograph (under R v Bowden (Jonathan) [200012 WLR 1083 this includes printing or downloading images from the internet); making a pseudo-photograph, the manipulation of images and placing them together or altering them to create images which appear to be photographs but are not really photographs and the creation of completely computer generated images (added by section 84(3)(c) of the Criminal Justice and Public Order Act 1994); or
2. Showing or distributing such images; or
3. Possessing such an image with a view to its being distributed or shown; or
4. Publishing an advertisement for such an image.
Secondly, possession of child pornography is controlled under section 160 of the Criminal Justice Act of 1988. Possession in electronic form was added by section 84 of the Criminal Justice and Public Order Act of 1994.

It is important to note that the criminal law is linked to the indecency of the image depicted and not to the harm suffered by the child. It does not include text at all; this is left to the laws controlling obscenity.

B. Sentencing

Although this paper will not consider in detail the sentencing of such offences, certain aspects of sentencing have a bearing on the way in which the laws may protect the child.

Section 41(1) of the Criminal Justice and Court Services Act 2000 increased the maximum sentences for child pornography to 10 years for making and distributing and five years for possession. On 15th August 2002, the Sentencing Advisory Panel (SAP) published its advice on sentencing in such cases, advice which was largely followed by the Court of Appeal in its guidelines delivered in R v. Oliver and others [200311 Cr. App. R. 28: 463. Both the SAP and the Court considered the two most important factors: the nature of the material and the nature or extent of the offenders' involvement. To a large extent, consideration of the nature of the material takes account of the suffering of the child in making the image; this was certainly the intention of the SAP and the Court, who both wished this to be the most pressing aspect considered by the court. However, this is not the only consideration and, in effect, may not even be the most important.

The SAP decided on five levels of offence (see the table below) based on what is known as the COPINE typology, a system created to assess the psychological features of offenders and therefore one which considers the material from the viewpoint of the user of the material; it was never intended to be used to describe or assess the suffering of the child (Taylor et al., 2001).

In the table, the COPINE typology is used to explain what each category should cover. The SAP conflated a natural photograph which captures nudity and which might be taken innocently in the family with one where a child is forced to pose for a nude photograph.

The Court of appeal remedied this by excluding the former as falling outside the legislation, even if it fell into the hands of a paedophile, because it did not involve suffering to the child. Of course, if a court convicts on such images they will presumably be sentenced as if they were level one images. The court has therefore tried to focus more on the harm suffered by the child, but even their typology does not necessarily bear much relation to actual suffering. The problem is that the law is centrally interested in the depiction and does not go behind that to ascertain whether the child was assaulted or psychologically, though not physically, persuaded to co-operate. It is the image, not the suffering of the child, which is important. This is not the fault of the Panel but arises directly out of the law being related to the image itself: although the court may try to ascertain such suffering in assessing the offenders' involvement this will not always be possible, especially if the offender merely possesses and does not make the images.

The assessment of the suffering of the children used to make the images is augmented by an assessment of the involvement of the individual maker of pseudo-images, taker of photographs, distributor or user of the material. Lord Justice Rose (R v Oliver [2003] 1 Cr. App. R. 28: 467(11)) stated that `the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse'. The making and possession of pseudo-images is seen as less serious than any activity with images of real children: they are assumed to be less harmful (468(14)). Nonetheless, since pseudo-images still fall within the typology, they necessarily limit the extent to which it is possible simply to recognise and harshly punish harm to children. This is reinforced by the fact that the court felt that a particularly grotesque pseudo-image might be treated as serious for its potential corrupting effect (468(15)).

A further erosion of the principle that protecting children from harm is paramount is seen in the attitude to the treatment of offenders. Even if treatment might be needed and effective in preventing future abuse, it will only be used where both the degree of seriousness of the offence allows a non-custodial sentence and the offender is suitable for such a programme. The neutralisation of future risk (if any exists) or future danger to children is thus not a strong aspect of the sentencing structure (sentencing is about punishing past behaviour and this may be the correct approach, especially as most programmes manage risk rather than treat it). Furthermore, nothing in what the SAP or the Court said touched on assessment of the offender as a danger to children. It may be that the new joint custody and treatment provisions in the Criminal Justice Act 2003 will go some way to dealing with this issue, allowing both punishment and some action - this remains to be seen. Certainly, neither the court nor the sentencing review panel prioritised treatment and the future safety of children.

As well as the sentencing of the offenders, there are two other measures that are claimed to add to the safety of children. Firstly, all those sentenced or cautioned for any of these offences must register their name and address with the police (Part I Sex Offenders Act 1997; those convicted but not sentenced are not entered on the register). The public are led to believe that they will be safer as a result of the sex offenders register. However, the register merely requires the authorities, police and often probation, to manage the risk, not to neutralise it: nothing specific is done to reduce the level of risk posed by the individual. Management of risk, the tracking of offenders, has largely replaced rehabilitation of the offender. In many instances, police officers and panels are too busy even to manage offenders effectively. It does not make society safer.
Secondly, there are three types of list which restrict the offender's ability to work with children' (registration on court-ordered disqualifications is restricted to cases where a custodial sentence of 12 months or longer is passed). All employers recruiting for posts working with children must contact the Criminal Records Bureau to ascertain whether a person they wish to employ is registered on the Sex Offenders Register or on the other lists. If the desire is to protect children and there is a belief that those who merely possess images of child pornography may actually pose some risk, it seems illogical that they do not all need to register and are not all restricted from working with children. Again, it suggests that the real reason for the control is one of morality rather than concern with the safety of children.

Reasons for Control of Child Pornography

The regulation of child pornography has built up over time. As the laws have altered, so has the reason for their existence. The first law dates from 1978, when making and distributing child pornography was criminalised. At that time, both public debate and the debates in both houses of Parliament made it clear that the main, and for many the only, reason for criminalising the making, distribution and publication of child pornography was the protection of the children depicted in the photographs. For example, Michael Alison M.P. stated:

The most important point to note is the Title - Protection of Children Bill ... there is a fundamental difference between the problems of pornography as generally conceived and the problems we are trying to face in the Bill ... ordinary ... pornography is ... conceived from the point of view of the consumer ... The whole object and purpose of the Bill and of the House today is totally different. We are concerned not with the consumer of pornography but solely with the children used in the production of pornography. (H.C. Deb. vol. 943 at Col. 1853-54)

So text is not criminalized, even though text might contain appalling depictions of child abuse:

... text is necessarily and invariably depersonalised, fictional, romantic and probably a figment of the imagination. (Per Mr. Alison M.P. H.C. Vol. 943 at Col. 1856)

This, Members felt, could be dealt with under the Obscene Publications Act 1959. They were only trying to protect the child from the damage of appear-ing in pornographic photographs, some of which might not be thought to be obscene. As Arthur Bottomley M.P. noted:

They will ensure that there are no advantages to be gained by those who would rob some unhappy children of their natural modesty and dignity. (H.C. Deb. vol. 943 at Col. 1858)

In the House of Lords, Baroness Faithful stated:

This Bill is a Children's Bill. It is not a Bill directed primarily against obscenity; it is a Bill to safeguard children. (H.L. Deb. vol. 391 at Col 536)
... a child wisely loved by its parents and relatives, and by members of the community in which he lives has an image of himself which is an image of worth, of dignity and of a person loved and respected in his own right. When he is sexually exploited, his image is changed and diminished. His self-regard is stolen from him and he does not know what has been stolen. (H.L. Deb. vol. 391 at Col 540)

So, the Act was not concerned with morality per se, but rather with extending the law's protection of the child. MPs were keen to prevent its use by campaigners intent on more censorship. Although the law focused on the image, the assumption was that this was evidence of the abuse of a child and therefore needed to be curtailed.

In 1988, section 160 of the Criminal Justice Act criminalised possession of child pornography. The new direction of the legislation was recognised by Douglas Hurd, the then Home Secretary:

Traditionally the criminal law has sought to combat those who trade in pornography and left possession outside the scope of the law. This has been justified on the grounds of not interfering more than necessary with individual freedom if the individual concerned is causing no harm to others. . . . I am not persuaded in the case of material which exploits children that this position stands close scrutiny. (The Guardian, 17th October 1987)

One consequence of this change was that the focus or reason for the legislation had to alter; it could not rest purely on protection of the child depicted from the abuse involved in making the images. There had to be a wider basis:

Minister of State, declared that possession needed to be criminalised due to the indirect harm being done to children:

If we are to stop the exploitation of children for this filthy trade we must act against those without whom it would not exist - the people who actually buy child pornography. (The Guardian, lst March 1988)

The police claimed there were other dangers posed by the possession of child pornography: that it led to the sexual arousal and gratification of paedophiles (fantasising) which, they suggested, is a prelude to actual sexual activity with children; that it would lower the inhibitions of children - convincing them that sexual abuse is acceptable (grooming); that it can involve the use of blackmail - to ensure that the child does not tell anyone and to pressurise them into continuing the relationship; that it leads to the exchange of photographs between collectors; that profit may be made from the images (Donaldson (1988), in which these claims are not proven and the evidence would be equivocal) (see Howitt, 1995; Quayle and Taylor, 2002; Taylor et al., 2001, 2003). It might also have been claimed that: images which appear to show children `enjoying' or not pained by the sexual encounters depicted may lead to a belief that such activity is `normal'; revealing the image represents an attack on the child's dignity; furthermore, depictions of children in sexual encounters attack the dignity of all children, by showing them as sex objects (see similar arguments concerning the objectification of women: Kappeler, 1986; MacKinnon, 1989).

Such considerations might justify interference in cases of mere possession. However, after the 1970s the argument of possession demeaning children was almost never used by law-makers or by those who sentence offenders. Other reasons emerged, such as the immorality or unacceptability of the images; grounds which were based not in protection of children but on the protection of public morals and, therefore, in concepts of decency. In 1988, John Patten M.P, said:

At the moment if the police find a person in possession of even the most disgusting child pornography, unless they can prove some offence by him or another person, they have to leave it with him. (The Guardian, lst March 1988)

In 1987, Douglas Hurd, the then Home Secretary, referred to the need to ease prosecution in relation to cells or rings in which child pornography was circulated:

Child pornography exists primarily for the consumption of paedophiles, and there is good cause to believe that if there were no paedophiles there would be little or no demand for child pornography. (Donaldson, 1988)
Despite not focusing purely on the protection of the child depicted, the argument was that there was still a strong basis for claiming that it would or might protect other children. In a press briefing, John Patten, then Home Office

These cells are hard to penetrate and it is often difficult to establish that the material involved in a seizure was intended for further distribution. . . . Possession is, on the other hand, simple to prove. (The Guardian, 17th October 1987)

The emphasis shifted from protecting children from harm to attacking possession itself. The measure was largely unopposed; everyone was revolted by child pornography, no-one defended it and if the Act helped to find and punish those who should be caught under s. l of the 1978 Act it was seen as an acceptable measure.

The move away from the direct protection of children is even clearer in the 1994 criminalisation of pseudo-images. Most such images appear to depict child pornography but are formed without the use of a child. Examples include adults posing as children, images of adults altered by computer to look like children, the faces of children superimposed onto adult bodies, constructed images - using parts of images from many different sources - and wholly computer-generated images. Such images were criminalized, with very little media interest (and therefore little public interest) or political discussion, when the term `photograph' was expanded to include pseudo-photographs in s. 84 of the Criminal Justice and Public Order Act 1994.

It is harder to see why one might criminalise this area. One cannot claim that this protects the child depicted, since no child has been exploited or harmed to obtain the picture. The only claims along child protection lines appear to be the following: that the images may be used in grooming (Howitt (1995) suggests that this is rare); that child pornography might encourage child abuse (harm thesis); or, where the faces of real children are used, that it might undermine their dignity. If politicians and judges were worried that paedophiles might be so sexually aroused by such pictures as to attack other children, or have their inhibitions removed so that such attacks would be possible, there should have been consideration as to whether this would/ might/was likely to happen. No such research was conducted prior to the legislation being passed. Furthermore, if such endangering of children is proven, it seems logical that stories, cartoons, sketches, paintings or other indecent representations of child sexual activities should also be tested as they might have similar effects and therefore need controlling. However, these items are only controlled if they are deemed obscene, a more stringent test, and only then if they are traded in some way; mere possession is legal. As Gillespie (2003) notes, the legal definition of pseudo-photograph probably includes images of actual abuse of children which have been altered, e.g., by changing the hair colour. If this wider idea is included, then such images should be treated exactly like real images - they depict actual abuse. How-ever, where no children are used then, arguably, no child is harmed and criminalisation may be unnecessary (there may be difficult issues of proof to distinguish one form of depiction from the other) unless the harm thesis is proven.

The harm thesis postulates that photographs (pseudo or real) cause individuals to sexually abuse children. So what is the evidence for the harm thesis? The public and media often assume such harm (Howitt, 1994), but one needs to ascertain whether the risk is real. There is some evidence which could have been adduced to suggest that this is the case. For example, Lanning (1992: 26), although he uses little proof; Tate (1990) uses the harm thesis as the basis for the need to control child pornography, but he adduces almost no evidence of a causal link; Proulx et al (1999) only finds a link (not causative) between pornography and non-coercive child sex offenders (the research uses a small sample of offenders); Williams et al (2004) suggest that there may be a link in the case of certain personality types (particularly sub-clinical psychopathy); and Knudsen (1988) says it may be a minor and indirect influence (see also Finkelhor et al. (1990) on the harmful effects of pornography more generally; and Barron and Kimmel (2000), a brief piece largely concerning violence and sex). A number of eminent psychologists working in the area, whilst recognising that the link may and sometimes does happen, are not fully convinced (Taylor and Quayle, 2003: 80-83, 86-87; Howitt, 1995; and, more generally, Dhavan and Davies, 1978; Bauserman, 1996; Seto et al., 2001). There is little clinical support for any suggestion that the link is causal (Knudsen, 1988; Proulx et al., 1999; Williams et.al, 2004). ' However, this in itself is not decisive since insufficient work has been con-ducted around these claims (Grubin, 1998; Marshall, 2000). There is also some evidence that the opposite is true: that pseudo-pictures can assuage desires, so rendering the individual less harmful and possibly making the images therapeutic in some way (Kutchinsky, 1973, 1985; Taylor and Quayle, 2003: 90-91). Taylor and Quayle (2003: Chapter 4) found evidence of both of these effects, though no clear and obvious link that child pornography caused new abuse. Howitt (1995) found that, more commonly, paedophiles fantasised to licit images: children's TV; clothing catalogues; or watching children.

It seems reasonable to conclude that, on the evidence presently available, it is not possible even to clearly link child pornography and sexual assaults, much less to prove a causative link. In this context, to control the activity on this ground is not logical. Taylor and Quayle (2003: 80-83) found that child pornography on the internet was extensively used as a means of achieving sexual arousal and as an aid to masturbation: it was therefore actively used in the paedophile's fulfilment of their sexual attraction to children and in their sexual fantasies. This use as a masturbatory aid is not in itself illegal nor is it of itself dangerous to children, though it may be abhorrent. If this were enough to feed and satisfy their sexual desire, then pseudo-images might be seen as having social utility even if most of us would be wholly disgusted by their existence and the use made of them by the paedophile. Kutchinskey's work (1973, 1985) suggests that this is more likely to be the case, so pornography (adult or pseudo-photographs) might actually protect children. The crucial point remains, that there may be no necessary link between child pornography and further abuse of children and certainly no causative link. Even were such a link to be discovered, a question still remains: Is it acceptable to criminalise one activity, the mere possession of child pornography (especially pseudo-pornography), in case those images cause other harm which, if it occurs, would anyway be a criminal offence? Clearly a high causative risk might suffice, but an unproven one should not be decisive.

A further danger that is sometimes mooted is that the photographs will be used to encourage or seduce children into participating in sexual activities (Wyre, 1987; Durkin, 1997; Healy, 1997; Ost, 2003; Gillespie, 2004; see also Wyre, 1992: 241). Gillespie, without adducing evidence of its use or of the extent of its use, goes on to note that, if used, pseudo-images may be more harmful here, since images may be manipulated to depict children appearing to enjoy sexual abuse. However, although child pornography has been used to groom children, the extent of such use is unknown. Howitt's research (1995) suggests that, although it may happen, it is not common. Even if it is used, the fact that images are so used does not mean that their control would prevent the abuse; the images are thought to facilitate rather than cause the abuse. It can be plausibly argued that it is not the pornography which causes the abuse nor is it likely that the new abuse would be avoided were the pornography unavailable; so, again, control of the pornography would be unlikely to render children safer. In any case, s.48 of the Sexual Offences Act 2003 tackles this head-on by making it an offence to cause or incite a child to look at child pornography.

At the least, it seems that, except for the original abuse of children, the danger to children has not been proven. Therefore the reasoning for the law must fall back on the protection of sexual morality; the desire to prevent people obtaining sexual gratification, even if it does not interfere with the rights of children (especially in the case of pseudo-images, where children are not used or abused in the creation of the image), merely because most people consider that viewing such images is abhorrent.

Furthermore, penalising possession of such a photograph interferes with the right to a private life (to view or read whatever one wishes in private) guaranteed under article 8 of the ECHR. The interference with this right on grounds of morality may be justified if it is necessary - it must be a proportionate response to a pressing social need. In the case of R v. Bowden (Jonathan) [2000] 2 WLR 1083, this rule of the ECHR was arguably wrongly interpreted. The case concerned downloading indecent images of children from the internet. The Court of Appeal (Otton LJ), without giving reasons, considered that the laws were compatible with article 8 of the European Convention on Human Rights because it was necessary to protect public morals and/or for the protection of the rights and freedoms of others. They assumed that, because many found such images and the desire to view them abhorrent, mere possession should, necessarily, be illegal. There needs to be a test as to whether prohibition is necessary to the protection of morals and whether the prevention of the viewing of images which do not involve exploiting or harming anyone is genuinely necessary. In R v. Smethurst (2002) 1 Cr. App. R. 6: 58, Lord Chief Justice Woolf, again without real explanation, stated that the laws can be justified as being `for the protection of morals'. The debate surrounding necessity has been equally poor in the Council of Europe itself, which had no problem with criminalising the possession of all child pornography - including pseudo-pornography. The Cybercrime Convention makes the activity a crime without even defining it. The explanatory notes (paragraph 99) merely state that it is governed by national standards. This omission is especially interesting, since the reason for Part I of the Convention is the harmonisation of criminal laws so that co-operation in enforcement might ensue; without defining crime, it is not possible to ensure co-operation.

What thus emerges from this review is that, whilst the initial law-makers were careful to confine themselves to the protection of actual children in the photographs from abuse, later laws and law-makers have not been so clear. The more recent laws probably have more to do with moral standards of decency than with the protection of children, especially in the protection of pseudo-images where no child may have been depicted or used in their construction. The reliance on the protection of children justification is not always paramount or even central to the drive to prohibit these behaviours. What appears to be about the protection of children is largely about the protection of moral standards, of what we consider to be normal sexual behaviour. Perhaps child pornography is more about the images than the children involved in them.

Enforcement

Over the years, some in the media, amongst the police and some politicians have been claiming that child pornography is a problem out of control, that large numbers of offences are committed and that if only one had the legislation it might be possible to control the activity. The figures do not show or bear out these claims; they do not show an enormous problem (see Table 2).

Table 2 Number of offenders cautioned and defendants prosecuted at Magistrates' Courts and found guilty at All Courts for offences related to child pornography by result, England and Wales, 1979-2001

Although some of those involved in child pornography will have faced different charges of actual child sexual abuse, and therefore the charges relating to pornography may not have been processed, nonetheless the figures are low. The issue raised by these figures is that either the problem does not exist on the scale suggested or the law is not being properly enforced.

Beyond the assertions of some in the media, politics and law enforcement, some of the literature (Tate, 1990; Jenkins, 2001; Taylor and Quayle, 2003) suggests that there is a large amount of child pornography, especially on the internet or held on computers. It seems highly likely that this is a problem which is still not being tackled. This should be unsurprising, as there are only two units in the UK that specialise in countering obscenity, including child pornography, on the internet. Some officers in these teams are trained both in the ways in which paedophiles and paedophile rings work and the ways in which they interact with both child pornography and the internet. Such officers are amongst the main experts within the UK and, in the estimation of some academics, in the forefront of enforcement agencies around the world (Jenkins, 2001). However, two units is not sufficient.

The lack of cases is not a result of lack of knowledge about those in possession of child pornography. The US has been sending the UK police material concerning child pornography over the last 15 years. Tate (1990: 246) states that the police admitted in 1989 that they had failed, due to lack of resources, to act on a list of 67 names sent to them in 1987. The police continue to obtain information from the USA. In 2002, the Guardian reported that 7,000 names and addresses of those who had viewed child pornography on a site had been passed to the UK police: up until Christmas 2002, the UK police had only followed up on 200 of these (Russell, 2002). They have since arrested another few hundred, but this may still leave over 6,000. On the other hand, the intelligence was not as clear-cut as the press suggested. It is all too easy to attack the police for their lack of action, but they face difficult choices concerning the importance of the control of child pornography over other policing activities. Moreover, as much of the perceived rise in child pornography is related to the internet, they also need enhanced training in the control of crime online. Although they are in the process of obtaining the requisite expertise, it will be some time before they are up to speed (Williams, 2003).

Table 2 also shows that the numbers of offences are very low up to 1996; from 1997 onwards there is a marked increase. Two events may explain the change at this point: firstly, the effects of the inclusion of electronic images would be showing up in the court statistics, indicating a growing problem of internet child pornography; secondly, since the biggest single media push over concerns of paedophilia and child pornography began in 1996, the figures may reflect a police response to this moral panic (though it seems unlikely that those media effects would have worked their way through so quickly).

The second interesting factor is that in 1988 the police argued for the enactment of a section criminalising possession of child pornography largely (though not exclusively) on the ground that they often found material but were unable to prove that the individual was dealing. They argued that a crime of simple possession would resolve this problem. The figures do not support this. They show a higher (usually over 70 per cent since 1989) conviction rate in the offences related to making and dealing than they do in relation to the offence of simple possession, which in the same time period has rarely risen above 65 per cent.

Conclusion

There are four broad conclusions: firstly that child pornography is unacceptable, abhorrent and seen as abnormal by most people; secondly, both political and legal power structures want at least to be seen to deal harshly with child pornography and those associated with it; thirdly, there is a lack of clarity over what is the aim or object of the laws to control child pornography; and, fourthly, neither political nor legal power structures want to commit too many resources to its enforcement.

It seems likely that a large part of the intent of the law is protection of moral standards and sensibilities. It may therefore be an instance of what Smart (1989) might term `law as a system of power', here being used to mark society's disapproval and disgust at sexual images of children.' The important element is the display of disgust, so that enforcement becomes less significant. Disgust may be a valid intent, but would it be healthier if the authorities and society were honest about the fact? One might then be able to explore exactly what is abhorrent.

Clearly, where real children are used there is a strong and legitimate aim to protect the child. However, it is more difficult to justify the criminalisation of mere possession on this basis and would be impossible to justify the criminalising of pseudo-images (where no child is used) on this ground without proof of a causal relationship between child pornography and the sexual assault or abuse of children.

This shifts the basis for much of the legislation onto issues of morality and disgust, where it becomes necessary to ask: what disgusts us? Is it the fact that the dignity of children is attacked by even the apparent depiction of a child in a sexual pose? Is it the thought that anyone might think of children as sexual? Is it the sexualisation of children and thereby the undermining of the ideals of innocence related to childhood? These questions should be answered, or at least explicitly faced.

There is also much to question the claim that children are being protected. For example, the sex offenders register will not deliver this, it merely manages and does not treat the offenders or reduce their risk. Registers which prevent employment with children may be of use, but are not routinely used in all cases. To make the protection of children paramount over morality, it might be more effective to make possession and pseudo-pornography (possibly even possession of written material which is paedophilic) criminal, but to limit punishment to treatment, education concerning the child's right to enjoy dignity and/or registration on lists to prevent employment where children may be put at risk. Any other intervention seems to serve no useful function apart from a display of indignation.

In short, politicians, lawyers and society need to think long and hard about why they want to stamp out this material. What is it that needs controlling and is the present legal construction the most effective way forward?"

They need to decide whether it should be given particular priority in policing and, if so, to commit resources both to training officers and providing dedicated child pornography teams. Our lack of knowledge about the effect of this material, both on those who are aroused by it and on young people who come into contact with it, should be a restraint against imposing quick solutions.

To protect children in the UK there is a need for greater vigilance and transparency over actual child sexual assault. In particular, there is a need to recognise that the most likely perpetrators of abuse are family and close friends. New ways of preventing these offenders, perhaps through the vigilance of other carers or providing children with safe routes to inform on perpetrators, may be more urgent requirements. On the other side, we need more knowledge about paedophiles to help teach them to deal with their desires in ways that do not threaten children.

If we wish to tackle the true problem of paedophilia and to increase child safety, we need more hard data, more willingness to explore difficult solutions. Most importantly, we need to stop hiding behind the power of the law to mark our disapproval and disgust at sexual images of children and thinking that this is enough.' Law, and even the enforcement of law, is only the beginning.

Notes

1 There have been prosecutions for family photographs (Bellos, 1994; and Guardian 10, 12 and 13 March 2001 and 13 January 1996) and photography at schools and leisure centres is now often prohibited (Guardian 18 December 2002 and 19 December 2003). Note that Adler (2001a,b) warns against allowing the paedophile to colour our view of our children.

2 Court-ordered disqualification from working with children under ss. 26-34 Criminal Justice and Court Services Act 2000; `List 99' maintained by the Department for Education and Skills under the Education (Restriction of Employment) regs 2000, people barred and restricted from working as a teacher or working with people under the age of 19; and, a list maintained by the Department of Health under the Protection of Children Act 1999 to prevent unsuitable people being employed in child-care organisations.

3 See also Cohen and Scull (1985: 5) for a discussion of the move towards the power of law used in the socialisation of the individual and Foucault, 1977, 1976 and 1985 for a rather different construction of power.

4 Far more effective may be the new move by BT, one of the big five internet service providers, to block known child pornography sites, so preventing access, though this brings with it problems of interference with freedom of expression.

5 It may even be, as suggested by Adler (2001a), that legal controls add to, rather than solve, the problem.