IS there An End to Child Ponography?

Is There An End to Child Pornography? IS there An End to Child Ponography? Dr.T.S.N.Sastry Prof & Head Department of Law University of Pune

Introduction • Every Year, Day, Hour, Minute and Second there is an offence takes place on the modesty of children. • Among the various offences that takes place against the children; pornography is on high magnitude. • The global community has recognised that children are at risk from those who engage in the production, exhibition, distribution, and consumption of child pornography and that children can suffer serious negative effects as a result of pornographic exploitation. • This presentation deals with the definition, international standards, the impact of science and technology and national scenario and the possible steps to eradicate it.

Definition of Child Pornography • The question of what constitutes child pornography is extraordinarily complex. • Standards that are applied in each society or country are highly subjective and are contingent upon differing moral, cultural, sexual, social, and religious beliefs that do not readily translate into law. • Even if we confine ourselves to a legal definition of child pornography, the concept is elusive. Legal definitions of both "child" and "child pornography" differ globally and may differ even among legal jurisdictions within the same country. • The Definition of child according to UNCRC is a person below the age of 18 years. However, globally in the national jurisdictions it differs from 15 to 18 years and it differs even on the basis of gender. In some countries it is a male child below 15 years and female ranges between 16 to18

Contd…… • The Council of Europe defines child pornography as "any audiovisual material which uses children in a sexual context. • International Criminal Police Organisation (INTERPOL) delegates define child pornography as "the visual depiction of the sexual exploitation of a child, focusing on the child’s sexual behaviour or genitals. • According to Art2 ( C) of the Option Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000 : Child Pornography means, any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities s or any representation of the sexual parts of a child for primarily sexual purposes. • UDS Federal Law law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where

Contd… • the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or • the visual depiction is a digital image, computer image, or computer-generated image that is, or • is indistinguishable from, that of a minor engaging in sexually explicit conduct; or • the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. • In view of the differences that exist in defining child pornography for this paper a simple definition can be drawn. Accordingly Child pornography is publishing and transmitting obscene material of children in electronic form.

Child pornography is to be distinguished from "child erotica" which is "any material relating to children that serves a sexual purpose for a given individual. • Child erotica includes such items such as toys, games, children’s clothing, sexual aids, manuals, drawings, catalogues, and non-pornographic photographs of children. Child erotica is not illegal but is frequently used by prosecutors as corroborating evidence in cases against child molesters or child pornographers. • In England The Protection of Children Act (PCA) 1978 ) Child Pornography is an offense for a person- 1. to take, or permit to be taken or to make, any indecent photographs or pseudo-photo-graphs or a child; 2. to distribute or show such indecent photographs or pseudo Photographs

In some countries like USA, the definition of Pornography includes even harm based. Since USA respects highly the freedom of speech and one of the promoters of this rights in the world, it considers the child pornography from the perspective of preventing harm to child victims rather than censoring expression. • Even New Zealand also made a similar reference through its Films, Videos, and Publications Classification Act (1993) • In India though the IT Act bans it a crime no definition of Child Pornography is there.

Causes and Scope of the Problem • The cause are broad range and varies from diverse perspectives. They are multi dimensional, from economic needs to socio-cultural discrepancies, including gender bias and other forms of discrimination based on race, caste or class. • Among all gender discrimination, is the most important issues where in the girl child is more vulnerable than male child. • Many a times the natural calamites, over population, lack of education and other factors too contribute in each society. • Identifying the Victims: This is one of the Important and difficult areas in identifying the victims .

Contd: • Identifying the Abusers :Child exploiters and pornographers represent a cross-section of the larger community including highly esteemed members of the population. • However, the UN Special Rapporteur on the sale of children, child prostitution and child pornography; Child sex clients have been identified as coming primarily from the following groups: paedophiles, preferential child sex abusers; irregular situational customers; local prostitute users; tourists; travelling businessmen; migrant foreign workers; military personnel; public workers in isolated places and others.

Contd…. • There are further Characteristics associated with it. They are • (a) It is invisible: Since many a times the exploiters are under ground and may exploit street children and other children easily. • (b) It is Mobile: The production and publishing material changes from hand to hand and country to country and region to region in quick span of time. • (c) It is global: While the gravity of the situation for children may vary from region to region or from country to country, reports show that this kind of child abuse exists in practically all corners of the world. • (d) It is escalating: Children being inimical to the acts of the perpetrators and no demand for greater amount exists, inter alia, leads to a greater demand for younger sexual partners. Children used to be substitutes for adult prostitutes; now, however, there is marked increase of preference for children over adults, pushing up the worth of children in the pornography industry;

(e)It is a highly profitable business. This is borne out by the fact that it involves not only ad hoc or individual "entrepreneurs", it is often conducted by international profiteers using systematic methods of recruitment within a highly organized syndicated network, which is often also involved in other criminal activities such as drug dealing. • A look into some of the statistics clear reveal the picture: • Every second - $3,075.64 is being spent on pornography in which case about half of it on child Pornography. • Every second - 28,258 Internet users are viewing pornography. In this about 16,000 are viewing child pornography. Every year at least a minimum of one million children are introduced to the internet for sexual purposes. • Sex tourism is one of the most horrified factors contributing for • Every year nearly half a million children are dying due to their exposition to internet and the following problems

Effect of Science and Technology • The industry is experiencing a rapid development in cheap, user-friendly encryption software which is employed by child pornographers. Decoding the files is often extremely difficult for law enforcement agencies. • The Internet can be used to make contacts with other paedophiles and child molesters and is used to distribute home made and commercial child pornography around the world. An individual may now trade and/or sell images of almost any kind from one end of the world to the other. • Even if law enforcement officials discover the image, the ability to distribute it may not be impaired. Once an image is introduced on the Internet, it can be downloaded by any number of users and can be reproduced repeatedly without any loss of quality.

Contd…. • Advanced technology is making transmission increasingly faster. High speed modems of 28,800 bits per second (BPS) are currently available but soon it will be possible to boost that capacity to 550,000 BPS via high speed modems using cable television wire. This is significant because transmission and downloading of images can be time consuming and therefore costly. • Computer bulletin boards can be set up exclusively to exchange information about sexual interest in minors or specifically to allow for running conversations by computer on such subjects. Monitoring of such sex oriented bulletin boards has indicated that these boards receive thousands of calls. In most countries, neither licences nor registration for bulletin boards is required.

Contd…. • Letter writing by paedophiles, extensive in the past, is now being replaced by much more rapidly transmitted computer conversations. • Computers now come with built in microphones and speakers and will soon be routinely equipped with cameras. Monitors also frequently come with built-in speakers and microphones. • This equipment will enhance the capacity for production and distribution of home videos.

Contd…… • Images can now be altered by computer. For example, it is not difficult to add objects to an image. One can also delete objects or parts of a photo. An individual may superimpose a child’s face on an adult’s body, erase pubic hair or facial hair, and reduce and minimise breasts so as to make adult images look like children. • While it is still impossible to create entirely computer generated images that appear lifelike, it is, however, possible to insert digital images of a person into a video in which they have not appeared. Technology will soon be able to facilitate the creation of lifelike child pornography without using any real children at all. • Furthermore, on-line capability greatly increases the possibility of extended contact--up to hundreds of hours--with children, by child molesters or paedophiles. Sex exploiters have easy access to children via computer--especially lonely or troubled teens--by tuning into chat sessions, such as Internet Relay Chat, and making contact with children.

Laws on the Children Pornography • Since the 1924 Geneva Declaration on the Rights of Child till the 2007 the special session on Children by the General Assembly a number of conventions including CRC have been widely accepted and three World Conferences in Sweden, Japan and Brazil highlighted the significance and menace to curtail it. • The European Parliament taking into consideration of the increasing role of the misuse of computers and the crimes committed on it adopted a convention on Cyber Crimes in 2001. Though it has not defined what constitutes child pornography , in Art9 it stated the offences for it.

Article 9 – Offences related to child pornography • a producing child pornography for the purpose of its distribution through a computer system; • b offering or making available child pornography through a computer system; • c distributing or transmitting child pornography through a computer system; • d procuring child pornography through a computer system for oneself or for another person; • e possessing child pornography in a computer system or on a computer-data storage medium

2 For the purpose of paragraph 1 above, the term "child pornography" shall include pornographic material that visually depicts: • a ) a minor engaged in sexually explicit conduct; • b ) a person appearing to be a minor engaged in sexually explicit conduct; • c ) realistic images representing a minor engaged in sexually explicit conduct • 3 For the purpose of paragraph 2 above, the term "minor" shall include all persons under 18 years of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years.

Child Pornography in India • There is no explicit definition in the Indian Laws defining child pornography. However it is regarded as a crime and prohibited. According to Art 39 (e) … the tender age of children are not abused… and not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood… protected against exploitation and against moral and material abandonment. • Article 23: Traffic in human beings and begar and other similar forms of forced labour are prohibited…

Other Laws • The Indian IT Amendment (Act) 2008 under Section 67 B not only creating & transmitting obscene material in electronic form but also to browse such sites is an offence. Punishment for first conviction with imprisonment which may extend to 3 years & fine which may extend to 5 lakhs rupees. And for subsequent offence imprisonment which may extend to 5 years & fine which may extend to 10 lakhs rupees. • 292 of the Indian Penal Code, 1860 does not per se deal with obscenity online. This difficulty was solved by the insertion of Section 29 A which included electronic documents also within the purview of documents thus making the law applicable to electronic media as well. But then in IPC section 35 speaks about the intention or motive of the transmitters, which makes difficult to prove in such cases

The JJ Act though brought in a number of changes in the juvenile justice system in tune with the international legal instruments, the got has not made any provisions for child pornography is concerned. • Even the newly constituted Child Commission has not made any attempt till now to take up the issue. • The definitional problems of child is also persisting India. In It is unfortunate that Children Rights Act 2005 also has not touched the issue. Some of them View that the JJ Act covers all inimical acts including the Child pornography in India.

The child Rights commission Act 2005 though stated it is one of the objectives of prevention of Pornography, it is unfortunate that no major step has been initiated. The Act contemplates District courts for child abuse, not even a single one is constituted. • Till date only 9 States have constituted the State level children rights commission. Though the commission broadly states various issues, it has not given significant importance to the burning issue. • The Judgments of the Karnataka High Court in 2008 and the Mumbai High Court in November 2010 that viewing or possessing pornographic films is not an offence committed under section 292 of the IPC leads one to ponder whether it is applicable to Section 67 B of the IT Act also? Viewing in a private place doesn’t mean that it is an offence and obstructing privacy of the individuals certainly leads to deviation of children rights in future.

State Responsibility • According to the CRC and the Optional Protocol the states have minimum obligations to prevent sexual exploitation, • According to clause C) of Art 3 clearly states, if any body exploit children for producing, distributing, disseminating, importing, exporting, offering, selling, or possessing for the above purpose child pornography. • Articles 3 to 8 of the Protocol deals with the obligations both civil, administrative and criminal issues in protecting the rights of the child victims. • Art 9 and 10 speaks of positive obligations such as measures, social policies, and international cooperation at the international level. • Art 12 impose an obligation on submission of periodic reports by member states.

Conclusion • The above brief presentation clearly reveals that all nation-states have made a solemn commitment to protect the rights of the children at any cost. • However, in the implementation of the laws or in adopting laws there is no clear cut direction • The need of the hour is to have a uniform definition of child through out the world. This will certainly avoid the confronting attitude of the states in eradicating Child Pornography. • The nation-States should adopt a Uniform definition of Child Pornography • Though it is difficult to prevent cyber crime of child pornography on the net, by promoting morals, values, and imparting education in developing societies to adults and children, to a great extent the abuse could be stopped.

Contd… • Among the various alternatives, the Human Rights Education should be made compulsory at all levels across the globe. • Human rights education simply doesn’t mean the propagation of Human rights instruments, but to teach moral, ethical and values and understanding the duties that one has before they could reap riches of the rights. HRE has the most important characters which could prevent any things. The essential things of HRE are: • promotes democratic principles. It examines human rights issues without bias and from diverse perspectives through a variety of educational practices.

Ithelps to develop the communication skills and informed critical thinking essential to a democracy. It provides multicultural and historical perspectives on the universal struggle for justice and dignity. • It engages the heart as well as the mind. It challenges students to ask what human rights mean to them personally and encourages them to translate caring into informed, nonviolent action. • It affirms the interdependence of the human family. It promotes understanding of the complex global forces that create abuses, as well as the ways in which abuses can be abolished and avoided. • Apart from the above as states parties agreed under Arts 28 & 29 of the CRC to educate the children to promote the best interests of the child in always and means.

Last word Let us pledge that we the people of India will determine to save the Succeeding generations of this country from all the inimical activities, and, we will lend a helping hand at every time they need to lead a forward march, and, wipe the tears of every child to bloom their intellect to make India vibrant in all its respects and to bring the ancient glory of swarna yuga in shaping the millions of its future generations.

IS there An End to Child Ponography?