APPENDIX 8
Memorandum submitted by Mr John Carr,
Children's Charities' Coalition for Internet Safety
INTERNET-RELATED
ISSUES IN
THE SEX
OFFENCES BILL
The arrival of the Internet as a mass consumer
product, and one which particularly appeals to and is used by
children and young people, has led to a range of consequences
which were neither foreseen nor intended by its original architects.
The emergence of the Internet as a mass consumer
product has coincided with, and doubtless has partly been driven
by, the emergence of a range of other easy to use, widely available,
digital technologies, for example stills and video cameras, and
this has added to the complexity of a range of issues which modern
society needs to address. It requires us to look rather differently
at a number of things if we are to understand properly the way
that the digital era is changing the dynamics of what hitherto
were, perhaps, unexceptional or commonplace ideas or practices.
Some of these arise in the context of the Sex Offences Bill and
we shall be making representations accordingly as the Bill progresses
through Parliament. This letter to you sets out in broad terms
what we will be saying in relation to those various Internet-related
matters. I would, of course, be happy to supplement this letter
with oral or further written evidence should you or any members
of your Committee have any questions arising from it.
An example of the kind of issue which I think
we need to examine anew relates to the age of consent for participating
in pornography.
At the moment it is commonly supposed that the
age of consent to participate in pornography is 16, the same as
the legal age of consent for sex in most of the United Kingdom
(in Northern Ireland it is 17). You will be aware that the UN
Convention on the Rights of the Child, to which the UK is a signatory,
requires that all children be protected from ". . . all forms
of sexual exploitation . . . " and this includes ".
. . The exploitative use of children in pornographic performances
and materials." The UN Convention defines a child as being
a person who is less than 18.
The Sex Offences Bill proposes, at clause 52,
to raise the age of consent to participate in pornography from
16 to 18. Ostensibly this is principally aimed at outlawing a
child's possible participation in commercial pornography. We very
much welcome this proposal which brings us closer to the UN Convention
position. Elsewhere, however, the Bill allows an exception. It
proposes to permit a child of 16 or 17 to agree to take part in
pornography where the child consents and the distribution of the
image is only to the child himself or herself and to the person
taking or making the image. You will note the UN Convention does
not make such a demarcation.
Thus, in the Bill, the proposition would seem
to be "Leaving aside commercial considerations, if someone
is old enough to have sex they should be old enough to be able
to take pictures of themselves doing it." At one level, pace
the UN Convention, this seems an unexceptional idea, but in the
digital era we need to think more deeply about what this is likely
to mean in practice.
The simple truth is that nowadays people are
increasingly using digital cameras to take pictures, both videos
and stills, and the images they generate are very likely to be
held on a computer, or on a CD or some other digital device or
storage medium. Even where a person eschews the advantages of
a digital camera, it is now commonplace, for example, for 35 mm
film to be developed and returned to the customer both in the
form of conventional pictures with negatives attached, but also
on a CD. The point is that images are now routinely being digitised
and stored on computers or other digital media which can easily
be connected to the Internet. Any such image is therefore, potentially,
just one or two mouse clicks away from the Internet. Once an image
is on the Internet it becomes, in effect, a permanent, ineradicable
record. If that image is one of a child engaged in sexual activity
it could haunt and harm that child for the rest of his or her
life. No child should be put in the position where they have to
make such a decision. At the very least, only an adult should
be legally capable of consenting to something which potentially
has such permanent and damaging consequences.
Moreover, once the image is on the Internet
it will almost invariably and probably very rapidly find its way
into the hands of criminals who will either make it part of their
stock-in-trade which they sell on-line, or it will be used in
exchange for other images. Thus, even if it started out as a non-commercial
image, as more than one Hollywood actress can testify, there is
a severe risk that it will rapidly become publicly available via
a great many commercial web sites and Internet Newsgroups.
Children of 16 and 17 fall in and out of relationships,
sometimes with great rapidity. Often they might become involved
with a much older person who, in effect, has an abusive, or at
any rate a highly manipulative, relationship with them. Either
way, in these and other circumstances one could envisage, the
possibility of such relationships leading to the creation of digital
images of the child engaged in sexual activity and these later
finding their way on to the Internet, is one a civilized society
ought to guard against as best it can.
I appreciate that the Bill says that any form
of distribution of a consensual image of a child of 16 or 17 involved
in sexual activity is a crime, but our point is that the danger
to the child begins once the image is created. And if someone
is minded to distribute such an image, perhaps sell it for cash,
the fact that he or she had once made or possessed it lawfully
might diminish or obstruct an appreciation of the fact that such
distribution is illegal. I would guess the most likely scenario
is that of the disgruntled boyfriend publishing the picture as
an act of revenge against his ex-girlfriend for being dumped.
Again the fact that he had initially lawfully made and possessed
the image could diminish his sense that he might be about to commit
a crime, alternatively he will not care. Either way, with two
clicks of the mouse the damage to the girl is done, and can never
be recovered or undone.
For these reasons I think a single age limit
of 18 is much to be preferred, across the board. A by-product
of this would be to simply greatly the tasks of the police or
other investigators who work in this area.
Of course it is true that it has been possible
for some time for "ordinary" pictures, pictures on paper
or on video, to be digitised and then transferred to the Internet,
and this has indeed been happening a great deal. Our point, however,
is that with the rapid and continuing growth in the use of digital
cameras, the barriers to this kind of exploitation of images are
dissolving, the potential for this kind of misuse is now developing
on a much larger basis and therefore we need to rethink our attitudes
towards activities of these kinds.
Clause 16: marriage exception
We are seeking clarification of the meaning
of sub-clause 1(c)
Is it meant to say "the conduct does not
involve the taking or making of a photograph or pseudo-photograph
of any other person engaging in sexual activity"?
If that is what it is meant to say, and our
amendment to clause 52 is also accepted (raising the age limit
for participation in pornography to 18), we would like to confirm
that it would apply here also ie that in relation to pornography-related
activity even within marriage, 18 remains the minimum age limit.
Clause 17:
We are seeking to clarify whether, if the person
is intending to travel to a meeting at a location which is outside
of England, Wales or Northern Ireland, he can still be arrested
by police within England, Wales or Northern Ireland. 17(1)(b)
and 17(2)(a) suggest he could be so arrested, and 17(2)(b) (v)
confuses the situation.
In our view the ultimate destination ought to
be irrelevant as the whole point of the "travelling to"
limb of the offence is to stop the meeting happening.
Clause 52:
Delete all after sub-clause 2.
For our reasoning see above.
I would also delete the reference here and elsewhere
to images made before the commencement. There was a time when
child pornography was legal. Then it became illegal. It ought
to be the same here. Abolishing references to images made before
the commencement will also greatly reduce the burden on law enforcement
who might be forensically taxed if asked to establish when a particular
image was made.
Clause 53:
Delete sub-clause 1(a)
An exemption should only be extended to persons
who have been authorised within the terms of the remainder of
the clause. If a UK-based solicitor needs an exemption in order
to assist his client properly, he can get an exemption from one
of the designated persons. If an overseas police force or lawyer
requests the assistance of someone operating within the UK's jurisdiction,
then they should be in the same position. If the volume of requests
becomes too great the designated person might delegate their power
to named officials.
Clauses 10 and 11
I assume there is no difficulty in either of
these offences being committed "virtually" eg via email,
instant messaging, in a chat room or similar?
Clauses 12 and 13:
12 seems to require a physical presence. Is
that correct, or could the presence be virtual eg via a web cam?
Or would 13 cover any Internet situations of a similar nature?
Clause 13:
(1) (a) add "or for gain" after the
words "sexual gratification" in the first line.
delete the word "intentionally" in
the first line of 13(1)(a)
or insert new Clause 14
Publishing sexual material
1. A person aged 18 or over (A) commits
an offence if—
(a) for gain or in the expectation of gain
he intentionally publishes or otherwise displays photographs or
pseudo-photographs of a person engaging in sexual activity, or
(b) for gain or in the expectation of gain
he intentionally publishes or otherwise displays any other forms
of sexual material
(c) and it can be shown that he deliberately
set out to present items referred to in (a) or (b) to a child
(B) who is under 16, or
(d) it can be shown that he was careless
or reckless as to whether or not items covered by (a) or (b) were
presented to B.
February 2003
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