Should the possession and/or distribution of child pornography be a crime in a free society?
|
|||||
|
We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people. Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house] Authors
Arts, Tech & CultureCivil LibertiesCommentary
EconomicsSamizdatistas |
Discussion point XXIMarch 16th, 2008 |
 70 comments to Discussion point XXI |
Who Are We?The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling. We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe. CategoriesArchivesFeed This PageLink Icons   |
|||
All content on this website (including text, photographs, audio files, and any other original works), unless otherwise noted, is licensed under a Creative Commons License. |
|||||
“Societies” which are “run by” people who form a self-defined class (Sean Gabb calls the present British lot the “Enemy Class”) and who hold power by virtue of force of some kind, whether “from the barrel of a gun”, in Hitler/Mao style or, from corrupted electoral practice, or from the “hard disk of a cammed-up-computer” as in the taxation-and-surveillance-based British mode, need an easily-defined, and an easily-demonised “out-group” to point the collective finger at, and so redirect mob ire away from themselves.
That sentence was too long and contains brackets, so I guess there’s no invite for me to write for Samizdata quite yet then!
However, pornography, and “child pornography” are emotive subjects even if one is a heartless fascist. In 15-odd years of internetting, and some decades of scanning the presses, I have never seen any of what is often described in the papers etc as kiddie-porn. If the reports are true, I think perhaps then that at least some of the stories have been made up. Indeed there are widely held beliefs that the Police of various countries use “material” as “dangles”. It is simply not credible that a human being would, say, make a film of a young baby having sex (voluntarily or not) and Occam’s Razor points to the conclusion that the story is a fabrication to fit someone up with. To my mind, such a fetish is even more non-credible and bizarre than the one which states that homosexual sex, whether between adults or otherwise, exists and takes place.
However, it’s clear that some people are attracted to persons, often pubescent rather than truly juvenile, who may be described loosely as “children”. In a few cases a crime has resulted. The two little girls in Soham about 6 years ago is a case in point. Perhaps if the law allowed “possession” of pictures of young girls of doubtfully young age – and indeed some “page 3” girls sometimes look about 12, and perhaps that is what the vast majority silently thinks and wants? – then a few hard cases would not be driven to assault and murder in their extreme desperation. Not advocating it – just a thought.
Incidentally, I blame parents of daughters, especially younger mothers under 40 who allow their under-11s etc to go out in public dressed like half-naked celebs. If children under a defined age can’t consent to sex (and I agree) then they can’t consent to being made to look as if – to unsocialised males – that they are “up for it”.
Yes, it is a crime.
A child cannot consent, the creation of the pornography constitutes sexual abuse, and anyone in posession of the stuff is complicit.
How serious a crime though, is open to discussion.
If you possess images of child pornography even if they are totally artificial and created using sophisticated graphics and 3D software, you are guilty of an offence. That tells us that it is the thought process that is being prosecuted rather than actual harm. That is worrying. Of course, all decent-minded people find child pornography abhorrent. The problem is, once you establish the possession of a series of 1s and 0s of material we don’t like, you have created a thought crime culture. how long before political views, holocaust denial or global warming dissent becomes a crime. The anti-freedom enemy class has managed to use a distasteful practice of child porn to establish the prosecution of thought crime. Very clever indeed.
Countingcats: No disagreement with you there. However, the argument surely applies equally to buying goods produced with forced/child/slave labour, and while I suspect that such things probably are illegal too, we don’t seem to get worked up about them in the same way.
And what if the child porn is produced without the input of actual children. That is, if it is drawn by an artist or created with a cut and paste exercise on a computer to simply make it look like children were involved. The Americans banned the label on the 1993 Ch Mouton Rothschild because it showed pencil-sketch of a nude (but otherwise unprovocatively drawn) child. (The producers of this wine – one of the greatest reds in the world – hire a different well known artist to draw the label each year)
Funnily enough, I just fired up Google to try to obtain a link to this illustration, but thought better of googling for words like “child porn”, out of fear of having the police show up and arrest me, or something.
I, regrettably have actually _seen_ child pornography.
Why on earth someone would want to name such a file with reference to Paul Gascoigne’s glorious 1991 FA cup goal against Arsenal (what I was searching for on the Peer to Peer network, pre-Youtube) is beyond me, suffice to say, I was horrified (after I realized what it actually was, there was a period of a few seconds where my brain just outright didn’t twig, as is often the case when confronted with tramatic images).
It did however, get me thinking about what really constituted a crime with relation to the file.
Was I implicit in the production of the material? No, obviously not.
Was I distributing it? In this instance, I was not uploading anything to the network so by definition, I was not involved in its distribution.
Had I kept it, and not distributed the file, what crime would I as an individual committed?
Now there’s the stickler. If I offered no succor to the creators of the vile clip had I perpetuated the actions contained therein?
Perhaps the obscene gratification the creators enjoyed, knowing someone else had viewed their exploits would have driven them onto further depravity.
But supposing there is no way in which they might have known that? (As is the nature of a peer-to-peer network, it was possible they only ‘served’ the file once, indeed they might have had no knowledge that I’d downloaded it).
Would the possession be criminal because it might have ‘egged me on’ (rather uncomfortable hypothetical situation, I must attest) to committing similar acts myself? Well, whilst there is a considerable gulf in depravity between such acts depicted and pure, ‘vanilla’ violence, is this not the same fallacious argument which was used to justify the censorship of “A Clockwork Orange”?
The bottom line seems to be that we, as a society, would find the actions depicted in the brief clip, utterly depraved and horrifying and as such, would consider a hoarder of such video morally reprehensible. As a matter of public policy we elect to imprison such people for fear that they will ultimately commit similar acts themselves, however if this is the case then why will we not listen to evidence adduced to suggest that the hoarder had no intention of ever committing such acts?
Fundamentally, we would rather such people were punished simply because they deserve to be punished as a matter of public policy. We invoke and prosecute the powers of our justice system to an end which is socially desirable but no less arbitrary than the imprisoning of a political dissonant.
Now, do not in any way consider this a defense of child abusers or those who distribute or simply hoard the records of their depraved actions, but more than anything we have here an example of prosecution undertaken with Natural Justice in absentia, in favour of pure public policy.
However, I’d suggest that almost everyone is alright with this, irrespective of how academically suspect this action may be. This is a crime which seems to transcend our notions of justice, liberty and individual freedom simply because it is so morally odious.
All our principles must make way for this undertaking ‘in the interests of public safety or morality’ yet we tacitly accept its necessity. It becomes all the more unsettling every time you consider it.
CC: what if the parents consented?
My initial view was ‘no’… but then again on pondering this a bit closer… as kiddie porn is quite legitimately viewed as a crime (given the lack of consent I regard that as clear… it becomes less clear the closer to the age of consent someone gets), then are these images not the direct product of that crime?
If so then the images are tantamount to ‘stolen property’ (the owner of the images being the violated child) and on that basis kiddie porn passes the liberty friendly test of being objectively wicked.
That said, showing a picture of a murdered person is not itself a crime, so…
Short answer is… I dunno. It is a tough one and I do not have an easy answer.
Thinking of children, it appears the State are about to abduct Shannon Matthews for coming from a family structure not approved by the Enemy Class-
http://www.timesonline.co.uk/tol/news/uk/article3559493.ece
I know this is OT. Just thought it illustrates what happens when state child protection becomes an industry.
It’s tempting to ask about computer-animated pornography, drawings, fiction, or images of normal but private activities taken without the child’s knowledge, that don’t actually cause harm to any children, but that’s just avoiding the point.
A product has been created that involved a particularly nasty crime to create it. Should subsequent trading in the product, that in itself does no harm, also be forbidden?
Most arguments down this line try to establish a causal link to further harm – it creates a market for more, and it corrupts and depraves the user that can lead them from mere fantasy to playing it out in reality. If such a link can be actually proven, as opposed to just being asserted, I’d go along with that. Although I don’t know whether you could prove that every type of pornography did so, which might result in allowed and disallowed categories.
How about if we know a product was created through crime, but that we know its further trade won’t lead to any more? I’m thinking here of things like the trade in old ivory, or art stolen by the Nazis, memorabilia of old atrocities to be found in museums or collections, or perhaps old examples of taxidermy applied to now extinct species. Some people think such products retain a moral stain, and are at the least in poor taste. Others evidently don’t, and may even argue that to satisfy demand with recycled material avoids the need to create more. I have to say that, divorced in this way of its yuck factor and considered in the abstract, I have some sympathy with that argument. And where things are evidently a matter of opinion like that, I am hesitant to say one side is right and the other wrong without having more than a gut feeling to go on.
Back in the old days when women, like children, were not considered rational enough to give informed consent, should more mainstream pornography have been considered the same way? Not just images of actual assaults, but also cases where the woman freely volunteered and was paid for her services, but being a woman was not considered legally responsible for her actions or capable of understanding their consequences? Can a legal guardian give consent?
And finally, I think it’s worth pointing out that paedophiles almost certainly didn’t have any choice about what they are – only in what they do about it. It might be worth thinking about how a hypothetical libertarian paedophile might choose to behave responsibly, to balance their own interests against the community’s.
And what if the child porn is produced without the input of actual children.
If the images are manufactured and no children are involved, I would take the view that there is no crime. The crime is the abuse of the child, an image which is an artists rendition, however produced, of an imaginary act has not involved a child and is therefore not a subject of prosecution. Regardless of how unpleasant any such image may be.
There are people who find children sexual objects but refrain from physically indulging their tastes. While I would be reluctant to allow one of these people to bath youngsters I see no reason to criminalise their looking at drawings and CG images, given that no one was harmed or abused in their production. The current situation, where possession of a fantasy image may constitute a crime, is repugnant.
what if the parents consented
The only person who can consent to the abuse of a body is the person involved. A child is deemed unable to give consent, and a parent may not.
Although, I do have difficulty with the idea that there is something magical about midnight on the sixteenth birthday, the time where a line is crossed.
David Davis,
It is simply not credible that a human being would, say, make a film of a young baby having sex (voluntarily or not) and Occam’s Razor points to the conclusion that the story is a fabrication to fit someone up with. To my mind, such a fetish is even more non-credible and bizarre than the one which states that homosexual sex, whether between adults or otherwise, exists and takes place.
Do we live in the same universe?
It’s true that under some circumstances, child pornography can be purely a thought crime, but it should remain an offence even so, for pragmatic reasons.
Consider someone who buys a dog with the sole intent of torturing it. It’s their property, and they aren’t harming anyone, so it could be argued no one has any right to interfere with their enjoyment of their property. However, there is a very strong correlation between that level of animal cruelty and sociopathy, though not direct causation. Conceivably, the culprit might never harm a single person, but the risk is too high to let them walk unfettered. Better to lock them up before they move on to human.(Exiling them would be as efficient, and there other ways of keeping them away from potential victims – I’ll not give the full list of acceptable options every time for brevity, not because there are no alternatives)
Of course, we can’t lock everyone up who would pose a potential risk; that’d mean locking everyone up, but the line as to be drawn somewhere. Otherwise, we’d be allowing people to walk the streets in the full knowledge they were 99.9995% certain to try walking into maternity ward, disemboweling the first baby they see, and forcibly stuffing its liver down the mother’s throat. There might be people who would rather let people do that than infringe their liberties merely because of what they’re thinking, but I am not one such.
Exactly where we do draw the line is an horrendously difficult question, but I feel both hard-core child pornography, with clear prepubescents), and deliberate animal cruelty, put the perpetrators well over it. They can no more be allowed to freely wander the streets than could a rabid dog, for much the same reason.
Adult pornography, on the other hand, isn’t over the line. It doesn’t matter how many page 3 girls someone looks at; there’s no appreciable correlation with sexual assault.
If so then the images are tantamount to ‘stolen property’ (the owner of the images being the violated child) and on that basis kiddie porn passes the liberty friendly test of being objectively wicked.
That is another component of the matter.
Question – Should knowing possession of evidence of a crime, while failing to report that crime, be in itself an offence? Bearing in mind that any kiddie porn is evidence of a crime. (I exclude fabricated images here).
That said, showing a picture of a murdered person is not itself a crime, so…
No, but possessing images of a murder in progress, and failing to bring them to the attention of investigators, is a smidgeon more problematic.
Like, hunting?
I think this is probably best considered as a case of receiving stolen property.
Using that parameter for prosecutions might help avoid the more absurd cases.
(a particular story about teens above the age of consent prosecuted for filming themselves having sex comes to mind)
Not that it would be much less absurd if they were below the age of consent.
Obstructing justice?
I guess my main point is that it’s unwise to have special laws for morally outrageous circumstances because it leads to abuse and absurdity.
Yes.
And it can be enforced without reference to thought crime.
If you accept that:
Children are a protected class that can not give consent
That parents can not give consent to injurious acts on behalf of a child.
That the act of making pornography would be injurious to a child
Then all creation of child pornography is a crime.
Just as with trading in and possession of stolen property abets the act of stealing, and is therefore also a crime, the possession of and trading in child pornography abets the act of creating child pornography and is also therefore a crime.
What someone is thinking never comes into it.
Just as with possession of stolen property, if someone can make a reasonable claim that they did not know what they possessed was abetting the crime, they should not be charged, or if charged, they should not be convicted.
That works as well as any other legal reasoning does, with the same strengths and weaknesses as other procedures. Without bringing in thought crime.
THe problem with “aiding and abetting a crime” is that we don’t tend to apply this to other media images.
For instance, should it be illegal to own a copy of an Islamist beheading video (like many people, I’ve watched one)? Why was I not aiding an abetteing a crime by having that video in my browse cache?
Or was I?
Or, what of images of children being abused (e.g. injured, beaten) but without any sex involved? Are they OK? Naked children playing? Nudists? Clothed children posing provactively?
What defines “pornography”?
Can a parent give consent on behalf of a child for risky, painful, or scarring medical procedures, like life-saving surgery? They are, after all, technically an assault, that is allowed on the basis that any person can give informed consent to being harmed. That’s why doctors make you sign those forms.
There are all sorts of things that children don’t like doing, ranging from going to school, or wearing smart clothes on special occasions, through to visiting the dentist or getting vaccination jabs. The parents can give their consent, even over their loudly voiced objections. They can also withhold it, as in the case of those refusing blood transfusions for religious reasons. So where do you draw the line, and by what principle, where your child becomes not the responsibility of the parent but of the state?
And with the same principle, what else could they stop you, the parent, from doing with your own child? Homeschooling? Allowing to get obese? Not teaching self-discipline and respect for authority? Teaching them global warming scepticism? I’ve heard such things being called child abuse, and while I regard that as arrant nonsense, it would be good to have an actual explanation of why this is different.
The first thing that comes to mind is that there’s some very real problems with definitions here. For example, consider the kid on the cover of Nevermind – there’s 26 million pictures of his infant penis around the world. Is that porn, sexual abuse, or any of those other things? Where do you draw the line – is the famous “I know it when I see it” test sufficient?
More importantly, what is the fundamental crime here? If it’s the statutory rape involved in production of the porn in question, then is a video of a pair of 12 year olds having sex(a legal act in Canada) child porn in the legal sense? How about somebody significantly younger engaging in sexual acts without a partner? That’s not rape, since there’s no actual sex, but it’s presumably exploitative as all hell. Furthermore, at the moment we use different ages of consent in different circumstances(age of partner, gender of partners, etc.), so could we not simply argue that there should also be an age of consent for recording sex – after all, it’s an act that could have serious repercussions for those involved, and that children can plausibly not be trusted to consent to, just like how they can’t consent to contracts.
My inclination here is to ban ownership of illegally generated images of child pornography, but not to ban legally generated ones(e.g., artist’s renditions that don’t actually involve child abuse in their production). It’s abhorrent, but I’m very averse to arguments of “Well, it might lead to…”. Punish child abusers and those who are complicit in it, but don’t punish people just for having a filthy mind.
Ian B nails it by asking the question, “What constitutes pornography?” It is certain that Lewis Carroll would have been run in for his nude/scantily clad photographs of kiddies but what exactly was his purpose? If it is possible to nude adult pictures which have aesthetic value beyond the pornographic then surely the same is true with children?
Carroll’s aesthetics were different from our own but then “our own” are rather various aren’t they?
Now, I’m not defending kiddy-fiddlers but the system we seem to have which is a blanket ban on nekkid chitlins is ludicrous… I mean, hell, all those cherubs aren’t wearing too much…
What really worries me is the fairly recent UK (and I gather other countries too) extension of the law to include rendered images of kiddy-sex. Undoubtedly someone who slaves over a hot rendering package to produces images of sex-acts involving virtual children is not the sort of person I would have round for a candle-lit supper but it does seem the thin end of a slippery slope and…
I utterly fail to see how virtual peadophilia is significantly different from the virtual murder and maiming I do all the time playing, say, Grand Theft Auto or the virtual genocide I have carried out playing Civ.
Well, it depends. Are we talking about photographs of actual children engaged in actual sexual acts, or videos, or sound recordings? Or are we talking about drawings, or animated videos, or text descriptions, in whose creation no actual children were involved? It can reasonably be argued that someone who consumes the first is an accessory to a violation of children’s rights; someone who consumes the second is not. Treating them as morally equivalent strikes me as unjustified.
Perry’s argument from the principle of self-ownership / intellectual property is interesting due to its elegance and broad applicability. If you loook at another example of traded images, such as pictures resulting from the invasion of a celebrity’s privacy by paparazzi then you could argue that ownership of the image lies with the celebrity and that the journalist must pass a test of reasonableness or public interest, or assert an absence of damages to get away with it. That test is pretty clearly failed in the child-porn context, of course.
Based on my limited understanding of such things I can see that were the initial sexual assault to remain within the remit of criminal law, but the resolving of damages from the trade in images to then be resolved using a common law approach, then you could see that no special cases would be required in the handling of such matters and the principle of self ownership is enshrined throughout.
Were there a public benefit to ensuring all cases of trade in kiddie porn were thoroughly punished, then this would be allowed for through the communal funding of tort suits and the establishment of precedents based on that same social philosophy. Similarly, should society find that artificial kiddie-porn were a net benefit (by displacing real crimes), then couldn’t precedent for that be established and refined over time based on evolving statistical evidence?
My Lord! What matters of definitions and concepts this type of statement, uttered in this way, raises.
“Society?”
“Free?”
“Crime?”
What constitutes each of those (without regard to the current context).
Then in combinations: What is “Free Society?”
What constitutes the gravamen
of crime in the “Society” so
delineated?
No doubt a thought and response provoking statement, but not an enquiry.
one side effect of the current ban on the possession of such images, is that internet users cannot be called upon to report such imagery to the police and ISPs…
nowadays, if anyone stumbles across such a thing accidentally, the first instinct is not to call the police – it is to delete it.
thus, there isnt that wider “flash mob” effect helping the cops.
I think to gain some perspective it’s probably worth noting the difference between paedophilia and ephebophilia- this article from The Times of all places does so far better than I could probably do.
The significance here is that “ephebophilia” is an attraction to adolescents which is best defined as those old enough to physically do it but not old enough to legally do it, and as the article states the opinion of when somebody should be legal varies widely across the world.
Now it seems to me that it’s entirely irrational to have a distinction between imagery and actualite as regards age. It’s absurd to say that one cannot photograph something which is legal.
Ephebophilia is in technical terms a “fetish” for adolescents, just as paedophilia is a “fetish” for children. As such an ephebophile would be exclusively interested in adolescents in a creepy Jonathan King kind of way, one presumes. But I would, at risk of receiving bucketloads of approbation, suggest that if we treat ephobophilia in a more general way, i.e. “may be interested in a particular adolescent” then we’re all ephobophiles, or at least potentially. (I’m talking about male [heterosexual] perceptions here when I used the term “we”).
“Ephebophile” imagery has a long cultural history. The stereotypical sexy schoolgirl image. St. Trinnians movies. Samantha Fox popping out of a gymslip. Kind of thing. And it’s worth mentioning here that Sam Fox’s 80s career would now be illegal- she started delighting the nation at 16- now that would be counted as “paedophile imagery”.
Which brings us to the point- how much of the declared “paedophile” porn we’re told about is actually adolescents, i.e. girls (and boys) who are post pubescent but not legally old enough? I suspect that it would be a majority.
I think the market for genuine paedophile porn (children) is very, very small. But the reality is, I think, that’s once a girl has got bumps in the right places and pubic hair, i.e. secondary sexual characteristics which evolved as visual sexual attractants then men are potentially going to start finding her attractive, even if they daren’t say so in a rather hysterical moral climate. Girls don’t magically become attractive on their 18th birthday. It’s a gradual process.
So I’m suggesting we’re lumping together two quite different things- a grotesque desire to abuse children (which is IMV “against nature”) on the one hand, and an interest in sexually mature people who simply aren’t legally mature yet. The law doesn’t equate to reality.
What we’re down to is, we have an age of consent as a useful barrier, a line drawn in the sand. But people mature at different rates. Most people are ready to start their sex lives before 18, before 16, at some point when their hormones kick in.
I’ve kind of lost the thread of what point I’m making here, but fundamentally it’s down to, I believe, an error, in equating a legal definition with actual reality. How much “kiddie porn” is actually “teenage porn”? Quite a majority, I’d guess.
I think we need to note that Child Abuse in general is one of the Enemy Class’s primary enabling narratives- an enormously successful one because it appeals just as much to conservatives as “liberals” (look at how Satanic Ritual Abuse (a variant of which is again flaring in Jersey) was a fascination of both ultra-conservative Fundamentalist Christians and ultra-leftist feminists, spread largely by the social work industry). They’ve been able to draw hard lines in the sand, making discussion virtually verboten (indeed I feel a tad scared posting this in case it were to inspire a dawn knock from Plod).
I remember back as a lad working followspot at my local rep theatre on panto, one of the dancers in particular, a girl of 13, was widely recognised to be a bit of alright and there was a lot of joking about “how long til she’s legal?” Would anyone dare joke about that now?
And so, half of girls are freely choosing to start their sex lives before 16 (according to my linked article) but apparently an image of that is beyond the pale and anyone who finds these girls attractive is considered to be the most grotesque of perverts. Does that make any sense?
A lot of waffle, not sure I made any points very well. Sigh.
I didn’t mean that the same doesn’t apply to women and to gay men and lesbians, I just can’t speak for any of them. Though recent high-profile cases regarding female teachers and young lads would suggest that the same applies.
Circulating images of abuse is a real continuation of the abuse. It’s directly insulting, hostile and vicious, to the victims concerned. If found, such images should rightly be either destroyed or used solely for the purpose of tracking down the perpetrators.
In other words, although crimes are often ill defined in law, possession and distribution in this case are wrong not because they encourage the “real” abuse that was recorded, but because they are actual abuse, of a different kind.
I think there is a case for making images created from real child abuse illegal to purchase (except, what if its important evidence for a news story and the seller is Reuters – I dunno). Making it illegal to possess produces too many opportunities for framing, fitting up etc.. A law with enough safeguards to protect the innocent and accidental finder would offer too many excuses to people genuinely complicit in abuse. Making possession legal but encouraging the public to report any source of child porn for criminal investigation would actually protect children more.
Fake abuse images that don’t involve children at all should be freely available so that people unfortunate enough to have this paraphilia have alternative ways to get their rocks off than actually doing it. On the whole, pornography seems to be used a replacement activity rather than a complement to criminal acts.
Firstly, for people that haven’t seen: what this is all about.
David Davis:
What the hell are you taking about? Maybe your arguments are too subtle for us. Can you rephrase them?
Alice (Hi!):
Are you saying that possession and/or distribution should be prohibited? Or are you just saying they’re wrong in the abstract? And if you are for prohibition, would you limit it to circumstances where a victim exists and objects?
My view:
1) I have never seen child pornography. Therefore (and I think this may be what David is getting at) I have almost certainly seen “child pornography”.
2) I agree with Sean Gabb, except I believe that:
3) Children can and do consent to sexual intercourse. Punishing an adult for having consensual sex with their child lover hurts the child. Age of consent laws most hurt those children that choose to have sex. Age of consent laws punish children for acting on their sexualities. Age of consent laws are a form of sex abuse against children.
Not only yes, but hell yes, as we say in the States. It’s questions like this that give libertarians the image of dope-smoking child molesters, among some people.
Ian B writes, So I’m suggesting we’re lumping together two quite different things- a grotesque desire to abuse children (which is IMV “against nature”) on the one hand, and an interest in sexually mature people who simply aren’t legally mature yet. The law doesn’t equate to reality.
I had thought of making a similar point, but decided not to complicate the discussion. But since Ian has brought it up I will say that I largely agree with him.
The laws against sexual activity with adolescents are a historical anomaly, one that goes back not much over a century. If you read history, or classic literature, you will find that earlier eras took adolescent sexual activity as perfectly normal; Shakespeare, for example, has Juliet’s family discussing the fact that Juliet is nearly 14 and yet is not yet married, let alone having children, as a bit weird. If you read ethnography, you will find that a lot of societies have had puberty rites followed fairly quickly by marriage. Most of those societies didn’t want adolescents to engage in nonmarital sex, but then they didn’t want adults to do so either—and they got most of their adolescents married, and the marriages consummated. Viewing behavior as abnormal which a large part of the human race engaged in routinely is odd; even if there are reasons to prevent such behavior, it shouldn’t be pathologized.
Moreover, the idea that adolescents can’t consent to sex is purely a legal fiction. The plain fact of the matter is that millions of adolescents do consent to sex. In jurisdictions that view sex as morally neutral—for example, the Scandinavian countries—such sexual activity is accepted as consensual, and the law focuses on prevented adolescent sex through actual duress or undue influence. I don’t believe that American or British adolescents are psychologically different in any fundamental way. The legal fiction is purely a device to enable criminal punishment of the sexual partners of such adolescents.
Note, too, that when I was 14, I was sexually attracted to girls within a year or two of my own age—that is, to adolescents. Was that attraction abnormal? Would it have been more normal, or healthier, for me to desire young women of 18-21, or mature women in their thirties? If not, then when should anyone expect the ability to see 14-year-olds as sexually desirable to have utterly faded from my adult mind, as if my sexuality had suddenly sprung into being when I turned 18? Stipulating that there are reasons to discourage adults from acting on such perceptions, classifying them as psychologically abnormal is ridiculous.
And at least in the United States, anyone who follows the popular media will be bombarded with sexualized images of adolescents. It seems almost impossible for anyone to sell jeans, for example, without images of alluring teenagers. A culture that both churns out such images and says that responding to them is pathological shows an amazing lack of insight.
Sexualized perceptions of preadolescents are a different matter, and the two need to be distinguished. I personally would favor treating sex with preadolescents more harshly than rape of adults, but sex with adolescents much less harshly—that is, rather than being equated with rape, it should be treated as a lesser offense, at worst. Some American states have adopted a sliding scale of age differences, where consensual sex is not criminalized at all if the partners are close together in age, and this is a more humane policy—but even if the age difference is greater than that, it would make more sense to treat the matter as a case of undue influence than of coercion.
It would be helpful if you tried to make an argument why it is so self-evident. Is it that the nature of the subject makes it politically expedient to take that position?
Yes and Yes.
This has to count as the singularly most idiotic question I have ever seen posted on this website.
I’m not well versed in Libertarian theory, nor am I any kind of intellectual thinker, but there is no reason in logic or rationale that the possession or distribution of these images can be justified; they are hostile to the sanctity of life.
The reason: they take away the liberty of the children concerned. Distributing these images is entirely brutal to the idea that a child should be protected until such time as he/she grasps their own liberty and protects it for themselves.
I know this is an emotional reaction; but really, you must have no idea what it’s to have the police arrive at your door and say “We have these pictures, we think they might be you….”
If the Libertarian position is that this should be legal, I am not (and I am proud not to be) a Libertarian.
Ian B,
I have never understood why the UK has an age of consent of 16 yet bangs an 18 cert on a movie which shows sex. Not to mention the ludicrous “Mull of Kintyre” rule…
Dan,
Please re-read this thread. I think the commentariat’s positions are more nuanced and in no way condone kiddy-fiddling.
We all tread carefully and nuance our comments, as this is The Great Taboo Of Our Time. If it was 1692 in Salem, Massachusetts, we would have been very, very carefully discussing witchcraft.
This is also an important and widely-read blog all over the world, the Commenariat are privileged to be on here, where important questions are asked, and we want to try and say sensible and constructive things.
I must admit I did not know that there might be a variety of “kiddie-porn” in which no children appear – only “virtual images” (how on earth does one do that?) If I understood this rightly then we are talking about pixels or printer-dots, and so no abuse of a real child has been committed – although if the images seemed to involve (real) children, that is to say pre-adolescents or even babies, then I do wonder about the clearly tormentingly-severe mental problems of the people who made it, those who think it should be distributed, and of course those who we are told would go out of their way to want to see it.
Nick Mar17 12.39, and William H St made sensible comments imho. In my own life I identified the girl I needed to marry when I was 14 and she was 13. Our fathers were scientists together, and I was allowed to take her to school dances and discos while our parents drank coffee etc. Most days, I still wonder where she is now and I can still picture her face exactly as if in real time – she would be I guess nearly 55, what a realisation! If it was not the 1960s but the “noughties”, then perhaps we would have “gone further” together than it occurred to us to do 40 years ago. I therefore agree that adolescents find each other attractive, and probably for very very sound evolutionary biological reasons. Then to suppose that the targets of sexual attraction miraculously shift for both sexes in full register, synchronously, so that only adults fancy other adults (say arbitrarily “18+”) and no other persons, suddenly, is clear tosh.
But I guess if adults actually go out of their way to either view or own clearly odd stuff, such as adults abusing real children: or, say, old guys deliberately try to go out with teenage girls, then we are in the realms of law. (But then, what if both partnets are willing?)
And plenty that didn’t, Shakespeare’s wife was twenty six when he married her and she was hardly atypical, that was about the average age for a woman to get married for a woman in Shakespearean England. Of course Shakespeare himself was rather young, being only eighteen.
*shuffles feet and clears throat….*
Speaking as one of the “enemy classes” (I am a police officer in a computer crime unit):
These beliefs, if indeed they are widely held, are entirely erroneous. To my certain knowledge this simply doesn’t happen, at least not in European and North American law enforcement agencies. I can’t think of a single reason why any LE agency would need to do this.
Again credible or not, this IS a practice that occurs. In fact, I would guess that infant abuse – and let’s be clear on this; infants subjected to rape, torture and beastiality features in 1 in 10 of the cases I deal with.
It is true that a “psuedo-image” (one created from scratch in something like photoshop) depicting child abuse is illegal to possess or distribute. However, I have never seen such an image, insofar that they exist, they don’t seem to be a recurring problem.
The issue of “consent” is something of a vexed issue as well. Certainly a number of child abuse cases that I deal with do involve girls under 16 consensually having sex with an adult. However in most, if not all, of those cases the consent has been given subsequent to a large degree of manipulation or fraud. I do see a pattern here of girls from broken homes and clearly stripped of any affection or even basic regard during their upbringing, suddenly exposed to the affection of a grown adult. In my experience, child abusers actively seek out children who face difficult emotional or social problems and exploit that to sexually abuse them. Having said that, there are certainly instances where it appears the girl is just sexually mature and not subject to manipulation or coercion.
The situation is certainly nuanced, but is appears that the public sphere is not wholly amenable to such nuances. Last year, one of the UKs Chief Constables publicly raised the point about whether we should be treating the 17 year old boy having consensual intercourse with a 15 year old girl in the same way we treat a 50 year old man having intercourse with an 8 year old girl. Inevitably, this was interpreted as him demanding a softening in our approach to child abuse, there were the inevitable howls of outrage and demands for his resignation…even though the points he made were entirely reasonable.
Nick M
I think you are wrong; I have read the thread again and it seems to me that some people are implicitly saying that society has no right to ban these images.
What about this gem, I wouldn’t even know where to start with a criticism, it’s plain nonsense:
Age of consent laws are a form of sex abuse against children.
What the fuck? No, these laws punish Adults for acting on their sexualities where the child is not of an age where the can legally decide for themselves – and thus require the protection of the law to aid their Liberty.
Age of consent laws are an attempt to protect children from being sexually exploited. Adults currently have a lot of power over children and could sexually abuse them more easily without age of consent laws. This has some drawbacks in that two fifteen year olds can in principle be prosecuted for having sex with one another, which is ridiculous.
The best discussion of this issue that I have read is here – go read it.
I must admit I did not know that there might be a variety of “kiddie-porn” in which no children appear – only “virtual images” (how on earth does one do that?) If I understood this rightly then we are talking about pixels or printer-dots, and so no abuse of a real child has been committed – although if the images seemed to involve (real) children, that is to say pre-adolescents or even babies, then I do wonder about the clearly tormentingly-severe mental problems of the people who made it, those who think it should be distributed, and of course those who we are told would go out of their way to want to see it.
There is a thriving Japanese genre called yaoi, which is erotic stories about male/male relationships, often between high school students. Its main audience in Japan seems to be women who find images of two pretty boys Doing It hot—sort of an analog of the classic “lesbian” porn aimed at male audiences. In the United States, the protagonists are legally “children” and this is therefore erotica involving “children.” But no actual children—or adolescents—are involved in making it; it’s dots of ink on paper, or pixels on screens. I have met American women who are big fans of this material. I haven’t looked at any myself, so I don’t know how explicit this material is—probably not massively, as it seems to be legally available in American stores; on the other hand, some of these women seem to find it prudent not to talk about their fandom casually.
And, you know, explicitness doesn’t seem to be the issue. If a film, or a comic, cuts away somewhere at the start of the full body contact, or focuses on faces or other body parts remote from the genitalia, do you think any adult is unable to envision exactly what’s not being shown? Yaoi is erotica about same-sex adolescent male couples. If you believe in punishing people for bad thoughts, its fans probably should be arrested and registered as sex offenders. If your standard is whether actual adolescents were hired to engage in sexual acts on camera, clearly this is not so.
fjfjfj:
Are you saying that possession and/or distribution should be prohibited? Or are you just saying they’re wrong in the abstract? And if you are for prohibition, would you limit it to circumstances where a victim exists and objects?
I would say it should be prohibited, because I do think it’s extreme and serious enough to criminalise.
If you could find an adult victim of recorded abuse who really seriously wanted their stuff distributed, that would be the time to consider changing the law. Meanwhile, it’s not exactly a common demand among either child victims or adult survivors of child abuse.
I’m not well versed in Libertarian theory, nor am I any kind of intellectual thinker, but there is no reason in logic or rationale that the possession or distribution of these images can be justified; they are hostile to the sanctity of life.
The reason: they take away the liberty of the children concerned. Distributing these images is entirely brutal to the idea that a child should be protected until such time as he/she grasps their own liberty and protects it for themselves.
One of the peculiarities of human thought is that our concepts have both a center and an edge. The center is the prototype example of the concept, the purest case of what it refers to. The edge is the outermost boundary of things that fall, marginally, within its definition, the point that just discriminates things that are X from things that are not X. Inevitably, there are things that are defined as X but that don’t look much like the prototype of X.
For example, there is a prototype of “rape”: armed stranger presents himself to woman and tells her to submit to his demand for sexual acts or face potentially lethal violence. And some rapes happen like this. But the category of rape also includes sex between married couples who have been sexually active before, but when one of the couple did not currently consent to sex; sex between unmarried couples who are both intoxicated to a degree that diminishes the capacity for informed consent; and sex with no element of force, where one partner was pretending to be a different person. In California, those are all legally “rape” too. Penalties appropriate to violent rape with threat of grievous bodily harm may be excessive to these other cases.
The prototype of “child pornography” is live action scenes of small children being forced into sexual acts by adults. And those rightly generate extreme reactions. But there are borderline cases here, too. What if the scene is drawn and animated, or described in prose, with no actual children involved? What if the “children” are actually adolescents who are physically capable of sex and have engaged in it for pleasure before being persuaded to do it for money? What if such adolescents themselves choose to videotape their own sexual acts and post links to them? The emotional reaction that is commensurate to the prototype case is excessive for some of these borderline cases.
At any given time, democratic polities seem to need to have a demonized minority or two. It used to be communists and homosexuals; then it was drug users; then it was child molesters; and currently Muslims and people who don’t believe in anthropogenic climate change seem to be moving into that role. And one of the marks of demonization is that the group evokes extreme reactions, so that every member of the category is viewed with total condemnation, and any attempt to call for a nuanced reaction is treated as support for the most extreme cases of the category. But this kind of thinking makes it nearly impossible to make any kind of rational decision about public policy toward people in the category, and leads to harsh measures that may do more harm than some of the actions they are used to prevent.
Age of consent laws should be (and in the UK generally are) a matter for interpretation. As fed_up (sort of) points out there is a hell of difference between 17/15 and 50/8. Now I’m 34 and married but… I’ll bet dollars to donuts that there are some pre-16 girls out there who I’d find stunningly attractive and in another world… Well, go figure.
But what I’d find attractive about them is the same thing as I find attractive in my 29 year old wife. I mean breasts and stuff. That is way different from peadophilia in the sense of being attracted to sexually immature people because they are sexually immature.
Of course that’s just physical attraction and that’s just one aspect. I very much doubt I’d find too many 15 year olds attractive intellectually or emotionally and vice versa but to state that finding any of these girls physically attractive is a sin that means you ought to be burnt alive in a wickerman (or whatever the tabloids currently demand) is ludicrous.
It is also (in a different way) ludicrous to say you shouldn’t photograph, draw, paint or film pre-pubescent children in the nip. Some of Carroll’s (for example) pictures are beautiful. I don’t see them as beautiful the way I see a picture of Dita Von Teese in a corset (and nothing else – possibly stockings) as beautiful. Hell, I think my cat is a beautiful creature and he doesn’t wear clothes (he’d be adorable in a sailor suit, though) but that doesn’t mean I want to fuck him. Hell (even further) I have seen two SR-71s and while they were gorgeous beyond belief I was never tempted to stick the old chap up the J-58 jet-pipe. And, no, that’s not just because of the risk of being arrested for a public order offence or being deported from the USA for a crime of “moral torpitude”. Beauty does not equal fuckability.
I would’ve needed a step-ladder anyway.
Context is the key here. If we lose sight of that then… Remember Julia Sommerville? ITV newsreader. Her boyf was cautioned because he took a roll of film to Boots. It showed her kid in the bath. A world of pain over what should be regarded as a jolly family snap.
It’s all in the eye of the beholder. Ms Sommerville and family regarded that as a harmless piccie (which might, at worst, moderately embarrass the kid 15 years later) but to a real peadophile it’s probably foxier than the latest diaper ad.
There is no accounting for taste. A brief scan of the internet should convince you that if it’s physically possible (scratch that: intellectually conceivable) somebody somewhere will get off on it. There is pornography out there which isn’t remotely pornographic by any common definition. Example: a relatively common paraphilia is amputees. There are people who jack-off over pictures of fully-clothed women with half a leg missing. Please no Paul McCartney jokes here. That’s porn to them. So, what images, exactly, are you talking about Dan?
And Dan, do you honestly think that kids under 16 don’t have sexual desires? I did. I think this is an issue of common decency rather than law. Let’s say I dumped the missus and hooked up with a 16 year-old. Well, why not? Try this: I’m not planning on tutoring A-levels for free or taking anyone to see boy bands. In addition my family would regard me as odd (at best). For those and a truckload of other reasons it ain’t going to happen.
OK, I’ll ‘fess up. I have an enormous crush on an eight year old girl. She’s yellow and lives in Springfield but even then it’s because I think she’ll be a corker 20 years from now. As long as she has lost her Green tinge.
No non-animated children were harmed in the making of this post.
That is a very important point, Nick. Problem is, how can anyone, other than the accused himself, make a distinction?
Really, the conflation of paedophilia and ephebophilia is central to our current problems. We can’t even begin to deal with paedophilia as a society without the ability to sensibly define it. The important question that nobody really seems to be trying to answer is: how did this conflation come about? Cui bono?
This is a difficult investigation, and before I put forward my hypothesis I need to explain where I’m coming from. Evolutionary psychology has been immensely useful in counteracting many modern prejudices about the operations of human sexuality and its discoveries form the foundations that I’m building from. Firstly, men are the gender that most proactively seek after sex and are far more likely to cross the lines of morality whilst doing so, which I feel indicates that our primary focus should be on male sexuality. Secondly, it is entirely natural for men to be attracted to women who, in evolutionary terms, present the most tactically efficient potential for producing offspring and as such the very concept of ephebophilia may be suspect.
With that out of the way, I can see two main beneficiaries:
1) Paedophiles themselves. Obviously, the confusion between the two categories creates useful camouflage for them to hide behind. In effect it contributes to a normalisation of paedophilia, as the dilution taking place raises them up as it drags ephebophiles down. Of course, whilst they benefit from this state of affairs they hardly could have helped bring it into place: paedophiles are rare and have only recently begun to organize to defend themselves politically.
2) Older women. Fulfilling or diverting the need to find a mate is the ultimate driving force behind almost all human behaviour. Traditionally older women have competed for the benefits of being the focus of male sexual attention with those younger and intrinsically more lissome than they, and have fared poorly in the competition. What has recently changed in Western societies is the distribution of political power: it has moved from being kept entirely out of the hands of women to a more even distribution across genders, but with significant stratification by age. The results are all too predictable to libertarians. Women as a group seem more susceptible to the blandishments of collectivism (of course with several notable exceptions, and thank God for them all) and the older amongst them, provided with this advantage, of course used it to gain monopoly on the provision of a service. It is sad that so much of modern feminism seems to be about encouraging women to haggle about their price, rather than to attempt to re-establish what they are (this viewpoint helps to explain so many of their other pre-occupations – their hostility to pornography is revealed as another attempt to stamp out what they perceive as competition). To people of such persuasions, getting to define a huge swathe of normal male sexuality as pathological is a not-incidental side benefit. One of the few things Rand did get right was the usefulness of guilt as a means of social control.
There are a few people who seem surprised that we would even need to discuss the question, or that there could be any answer other than the conventional one.
One of the things this site does is to try to identify the fundamental moral principles by which we decide such things, with respect to the principles of liberty. We all recognise the emotional gut reaction, but how do you express that as a general principle, that you can apply to new and difficult situations that society may come up with in future? We examine both extreme cases and borderline cases in an attempt to understand why we believe as we do. And that sometimes requires a rather emotionless and academic treatment of the subject – it doesn’t mean we don’t feel the standard emotions.
Different cultures have different taboos. Some cultures think the same way about religious apostasy that we do about paedophilia. We, on the other hand, are horrified by the implicit lack of religious freedom in such laws. If you go simply by emotional reaction, you have the serious problem that different people react differently – some are horrified and some think it’s no big deal. How do you decide whether to ban it or not?
Which is why JS Mill and other early theorists came up with the harm principle – that the only justification for restricting people’s liberty by force is to prevent harm to others. It’s a bit more complicated than that, but that’s the gist of it.
And in particular, the expression of ideas, the giving of offence, and the breaking of taboos, are not, in themselves, considered to count as significant harm. Yes, they can cause distress, and may be considered morally wrong by libertarians, but not enough to justify the force of law to prevent them. Otherwise I have total control over what you may say or not say by simply claiming to be offended.
Similarly, politicians and celebrities may be embarrassed or offended by certain information being published, but they can’t stop it by law unless it does actual harm to them, as in the law of libel. Freedom of information is a very powerful principle.
So what we’re doing here is exploring the boundaries of that. We all agree that paedophile pictures are offensive, and distressing to the victims (should they know about them). We are all most definitely agreed that images exploiting the assault of vulnerable people shouldn’t be made. That clearly violates the harm principle. But having been made, is there a sufficient justification for banning their possession by force of law? The possessor has not themselves harmed a child. Acquiring the photo now does not cause the harm done to the child backwards in time. (Unless it was commissioned by the possessor in order that he might possess it, which would be a crime.) So does the harm principle apply? Or is there another principle that justifies force, besides preventing harm?
Some have mentioned the distress and offence caused by the pictures continued existence and use. A valid point. But again, we could extend such a principle to protect politicians (or anyone else) from the embarrassment and offence they might feel if certain facts come out. Is it sufficient? Is it really different? Where and on what basis do we draw the line?
So if you’ve got a clear reason why a record of an assault should be an exception to the general principle of free expression, we’re interested to hear it. We want to have a good reason to ban it. But we have to take seriously the possibility there might not be one.
Someone asked above about how CGI pornography could be generated. Well, there’s a whole load of general 3D graphics software around now that could do it. Much the same sort of thing they use nowadays for Hollywood special effects. You can now do the same sort of thing on your home computer using free software – and with sufficient time and effort it can come close to being photo-realistic. Or there’s the technology used for computer games – instead of a model of a monster, you build a model of a child. (Modifying the models in games like Tomb Raider with adult naked textures is a common hack. I’ve never seen kiddies being discussed, but it wouldn’t be hard.) There was something on the BBC recently about people in the internet game Second Life using child avatars and enacting sex scenes.
Modern technology raises a whole new set of questions, and views differ. In some countries they’re still illegal even though no children are involved, in others, like the UK, they’re not. They’re interesting questions in themselves, but a lot more straightforward from a libertarian point of view. Free speech has to include the freedom to be offensive and disgusting, otherwise everything that anybody considered offensive and disgusting could be banned. I don’t suppose that’s going to be a popular view, but that’s kind of what the debate is about.
Alice:
Interesting. Would you apply this to images of an adult woman being assaulted also? What about less overtly sexual sadism like “happy slapping”?
Alan:
Are you certain about this? For some people I’m sure they are to some extent (but if it’s obviously rape, why do we need a special statute with a magic number? etc etc…), but I’m pretty certain that the much more widespread idea among ordinary people is still that age-of-consent laws exist to stop young people from getting up to no good. “It is illegal to have sex under x years”, for example, which people often say, could just be a very lazy, inaccurate shorthand, but I don’t get the impression it really is.
I concede that more educated people tend to favour the protection-based explanation (justification?) and that this is gaining ground and dominant in the media and in middle-class culture, but I do think the original reason for these laws has much more to do with sexual control of the young than a desire to actually help and protect anyone.
Pa Annoyed:
Do you mean indecent images that appear to include children, even though no child was involved in making them? If so I’m pretty sure they are actually illegal.
Pornography in any form must be just about the most difficult crime to prove. It essentially appears to be “I don’t think you should like this, because I don’t.” Despite valiant efforts to define it, there is still the feeling that pornography is largely one person’s view (however worthy or official or “legal”) about something that occurs in the brain before going anywhere else. If the idea stays in the brain, the case is even harder to prove.
The making of artificial representations of some things may be offensive but we should be careful not to rush to define what artists should and shouldn’t represent in a fictionalised form.
“I am offended” may be very meaningful for the person offended, but it doesn’t constitute a reason for damning or restricting whole areas of life. Especially when the complex and many issues surrounding the matter won’t go away by someone merely being offended.
Sorry, missed a final paragraph to my post above:
There is no question at all that photographs of genuine child abuse are not only offensive to the vast majority of people but also utterly wrong on so many levels. I am arguing here that an artist’s freedom of fictional imagery and artistic representation should not be inhibited by fear of misinterpretation and “mass-panic” reaction.
fjfjfj,
Interesting point. I believe the intention of the amendment was to prevent the law being bypassed by manipulating images of child abuse and claiming it was no longer a photograph of a child, in a legal sense. Whether the wording of the act is sufficiently broad that an apparent photo that didn’t involve any children at all in its making would be included is something I’m unsure of. (The Wikipedia article you linked includes the following definition “Pseudo-photographs are technically photographs, but they are created by computer software such as MS Paintbrush by using more than one picture”)
Anyway, I note there’s a new white paper out proposing the law to be extended to include cartoons and entirely artificial images.
There’s some more discussion/explanation here.
The Criminal Law Subgroup of the Home Secretary’s Task Force on Child Protection on the Internet have considered the possibility of amending the Protection of Children Act 1978 as one of the options for dealing with cartoon child pornography. This legislation made it an offence to take, make, distribute or show indecent photographs of real children. Its purpose was to protect children from abuse. It was subsequently extended to cover simple possession of indecent photographs, to reflect concern that possession fuels demand and perpetuates abuse, and to “pseudo photographs” to cover manipulation of images where, for example, an adult’s head can be joined to a child’s body. (The resulting image must appear to be a photograph of a child.)
The age of the child was raised from under 16 to under 18 in the Sexual Offences Act 2003.
Offences under the 1978 Act (as amended) attract substantial penalties to reflect the fact that real children are involved in the making of the material: there is a maximum of 10 years’ imprisonment for taking, making and supply of such images and a maximum of five years’ imprisonment for possession.
Although cartoons depicting child abuse are deeply offensive, they do not in themselves constitute abuse of a child. The 1978 Act is well understood by those who work with it and enforce it and there are substantial arguments against extending its scope to cover cartoons of child pornography. We are, however, giving close consideration to the issues and options in this difficult area, including how it has been tackled abroad.
Many interesting points have been raised here. To concentrate on the issue of pornography which doesn’t contain any real children, which borders on my own interest as I am, by trade, an “adult artist”…
The existence of a white paper strongly suggests that NuLab will bulldoze ahead and implement this prohibition on “underage cartoons”. Firstly, as a professional scribbling web pornographer, I already effectively operate under this statute, since the cautious transaction processing companies which I need to use to process subscriptions have their own corporate restrictions on what websites can sell (in fact, there is even a list of words which I may not use on the website, such as “rape” and others that may trigger Samizdata’s smitebot). I’m not allowed to show children. Period. By the letter of the rule.
Now the immense problem with artistic representations is, they don’t actually have a provable age. It’s just carbon on paper, so to speak. How can I prove that a drawn character is over 18? What if I do a bad drawing of a 19 year old and in the eyes of somebody else she looks 15? If this becomes criminal law, I could be hauled away for a bad drawing!
This isn’t one of those “contrived borderline” situations. Much of Japanesey stuff (manga, hentai) by convention uses childlike facial features (even though they may be on a body with enormous breasts). How old are these characters? And when is it pornography? Is mere nudity sufficient?
There’s in many legal jurisdictions a defense based on “artistic merit”. A naked baby in a fine art painting is okay. But how are we to define artistic merit? Doesn’t this put the courts in the position of being art critics?
This has weighed on my mind quite a lot, as despite drawing “porn” I tell stories, or at least like to think I do. Now if “porn” is just a category like “thriller” or “comedy” then okay, but in the main there’s a presumption that pornography is exclusive- if it’s pornographic it can’t be anything else, if you see what I mean. It’s either art or porn. So the very real problem for me is this. My stories contain sex, so they’re porn. But they also contain lots of other things- spaceships and aliens and people standing around talking, and comedy, and so on, and as best I can do I try to tell interesting stories.
But Lucy has to live in a strange universe without children. Anywhere. She comes from a planet of libertine nudists that has no children on it. She was raised in an orphanage, but I daren’t draw that. I end up with the bizarre situation that the one or two times I’ve briefly shown her as a child, this woman from the planet of nudist libertines, she has to be wearing a dress. Which is pretty daft really. A mainstream illustrator could get away with more than I can!
Now I’m not expressing a desire to draw kiddie porn here. The youngest I’ve dared draw her in any kind of “adult” way is as an 18 year old (and made clear this was 10 years ago, and she’s 28 now in the strip). But this is ridiculous. What if somebody decides my attempt to draw her aged 18 actually looked 17, 16 or what have you? How do I prove my intent? And isn’t it absurd that I can have sex with a 16 year old, but can’t draw one?
To illegalise art is, in my view, beyond the pale for a society. A drawing is not, and should not be compared to, reality. One can imagine a prosecutor saying to the jury, “that picture looks underage doesn’t it?” and what defence will the artist have against the charge? A claim of what was in his mind when he set pencil to paper? How can either side in the courtroom actually prove their claim?
Just as I was about to post this, I remembered an abandoned art project I attempted some years ago, a story that never went anywhere. At the time I was going through a revision of my style so’s to speak and also had a girlfriend who was rather minimalist in the boobie department (though very nice they were, it must be said) and so I was attempting to draw less boobily exaggerated figures than my normal stock in trade. Some while later I dragged the folder of drawings out and saw them with fresh eyes. I was horrified. The curveless figures, combined with a way too large head/body ratio, made them look like children. That hadn’t been the intention when I drew them, and neither had I realised at the time (it’s one of those things- you draw something, but only a long time later can you really see what you drew). That was one experience that got me really thinking about the dangers of prohibiting drawn imagery. How could I have proved to a court that what I’d drawn was not what I thought I’d drawn?
Nick M,
I don’t think the cat would particularly care for a sailor suit. The only use my cat has for clothes is laying down on them when I’m trying to get dressed. Thank god he’s not big enough to hide my socks.
It’s even more confusing here when my state has a variable age of consent. If the younger party is over 18 then it doesn’t matter. 16-18, they need to be within ten years of each other. 15 and younger, four years. Yes, that makes a 7 year old and a 10-year-old legal, although an adult who plants the idea in their heads is in for a very bad time.
Fed_up,
Most folks here seem to be tolerant even of us. I’m a, I guess you’d call it Response officer in the western US, and they usually put up with me.
I’ve never heard of using child pornography as bait. A DA’s office not far from where I live used a live person as bait in a recurring sting, but the person in question was a 30-year-old DA’s investigator who looked 14 with a boatload of makeup. She would go online and pretend to be 14 and respond to personals ads, and then bring a half-dozen other people from her office to the meet. I can’t even imagine anyone being allowed to use either real children or real pictures as bait.
Of course, CGI pictures may actually be legal here. I believe that the Nine Old Men tossed the ban on that as a First Amendment violation unless actual children were victimized.
Another issue regarding consent is that the eight or nine year old child cannot properly give consent to a decision that the twenty-eight or twenty-nine year old adult will have to live with twenty years later.
For this reason, most societies don’t allow eight and nine year olds to get tattoos. Otherwise, every girl in Texas would soon have “Hannah Montana” permanently inked on the base of her spine.
The Hentai and Manga issues are more difficult. Yes, those drawings are only carbon on paper, or pixels on a screen. But I now see a lot of adult men in the “Anime” sections of mainstream bookstores who I would never allow to babysit my child. I honestly believe that they’re looking for drawings like those of Ian B’s “minimalist” girlfriend.
What is the libertarian position on Anime / Hentai / Manga as a gateway drug? (Japanese animation fans, please don’t attack me for merely asking the question…..)
Well my own view is that if we start following that line of reasoning, we end up as liberal managerial statists. We start trying to ban things which may cause some people to do something bad. This is the thinking that bans violent video games on the presumption that they cause violence, bans adult movies on the presumption that they cause rape and bans speech on the presumption that it causes social discohesion. I don’t think that’s a libertarian position to take, nor a rational one, nor a practical one.
Nobody knows what causes paedophilia (or ephebophilia, even if that actually meaningfully exists) even if everybody’s got a theory (my own theory is that perhaps it’s no different to any other fetish, other than its disastrous inability to be gratified without harming children) so it’s probably down to some erroneous imprinting during the formative years (just as the gasmask fetish was found exclusively among men who’d been in their formative years during world war II and experienced early stirrings crammed into bomb shelters, apparently). I seriously wonder whether the best “cure” for paedophilia would be ensuring every lad gets some experience of what the adult female form looks like; as such widespread availability of internet pr0n may help reduce the problem in the future- which may be a measurable prediction. But that’s just my guess. Nobody knows.
Whether adults reading hentai will “lure” them into padeophilia seems extremely doubtful to me. I supect cause and effect are the wrong way around here. And again, most hentai would count as ephebophile rather than paedophile, if it’s even either.
Waffling again. Heh. I think the libertarian position, for me, would be simple. It’s no business of the state. If they commit a crime, then it’s the business of the state. But not before.
Well to start with Anime/Manga refers animation/comic strips generally, only Hentai is porn.
Ian B,
Any evidence on the gas mask thing?
My understanding is that it is more widespread and related to breathing-control fetishes up to an including auto-erotic asphyxiation. It also appears linked to latex/rubber fetishism.
Certainly, I’ve heard it involving people from well after WWII…
In particular I heard a sordid little tale of some kid who was found by the dibble dead in the basement of his Mom’s house wearing a gas mask with the tube inserted up the old Gary. He asphyxiated.
I think that was in Colorado. I suspect one of Sunfish’s colleagues really earned his corn breaking that one…
Sunfish,
We have enough hassle dosing little Timmy with his flea prophelactic (sp?) to even dare dress him in a sailor suit. He also has extremely sharp claws. They do that sort of weird shit in Japan though because they’re mentalists.
“Well to start with Anime/Manga refers animation/comic strips generally, only Hentai is porn.”
I take your point in a way, Andy H, but who says Hentai is porn? What authority? It may be a generally accepted view that it is, but could someone take the equal view that in fact isn’t porn, but “just” erotica? Would the artist argue that porn was furthest from his mind – or an essential part of its “appeal” to millions?
And then, was it “intended to corrupt”? Or does it try to “entertain” albeit with erotic urges – and that in a world where now some people get turned on by pictures of women smoking while others laugh at the same images?
Are we getting into deepest, murkiest waters possible because we cannot even define what is something and what isn’t anything, before anyone even looks at “examples”?
Rather than discuss forms and norms of “Social Conduct,” let us return to the elements of the statement:
Is intent required in order to qualify an action as a “crime?”
If so what must be the nature of the intent; that is, intent to cause harm or loss, or something less?
If something less, then what; even in general terms?
Now, if a social order establishes rules for its members (Laws) and if violations of those rules by knowing actions confirms “intent,” we have a different case.
The issue becomes whether a particularly defined type of Social Order can classify an action as a Crime by reason of a breach of rules, and still maintain its particular definition as “free,” or whatever particularity its purports to have.
This occurs in social orders with other definitons by reason of the “exemptions” permitted, whether on the basis of motivations (intent, etc.) and circumstances (self defense, e.g.).
The basic answer seems to be that there really is no such thing as a truly “free” society, in either of the terms of Isaiah Berlin’s essay.
Following from my earlier (OT) comment in this discussion, but related due to questions of child protection, and in light of it being increasingly clear that the State intends to confiscate Shannon Matthews, may I suggest to the Samizdata Cabal that a good “Discussion Point XXII” might be-
“Should the state have the right to remove children from their parents, and if so, what criteria should be applied”?
Just a suggestion, but I think this might be another useful discussion of where the borders of libertarianism lie.
Ian B
Is it not rather as that top book (Popper) in the masthead leads us to enquire: Where do the borders of “The State” lie?
All else is the individual unbound from all but its own obligations. The Libertarian!
Ian B
Is it not rather as that top book (Popper) in the masthead leads us to enquire: Where do the borders of “The State” lie?
All else is the individual unbound from all but its own obligations. The Libertarian!
IanB,
You mean, should anyone have to right to remove a child from their parents? Presumably we’re not claiming the state has any special rights in this regard.
If you heard the screaming from next door, would you do anything about it?
“Should the state have the right to remove children from their parents, and if so, what criteria should be applied”?
Going from Rothbard’s self-ownership axiom of libertarianism, the child’s body is the property of the child. The reason the parents are exercising control of the child is that the child is not yet competent to exercise full self-control. But that makes them, not owners, but trustees—and trusteeship carries obligations. If the trustee does not control the property held in trust (the child’s person) in a fashion consistent with the long-term interests of the beneficiary, or with what can reasonably be inferred about their desires (the beneficiary being the child), there needs to be a legal action for removing them from their trusteeship.
Of course, the devil’s in the details. Who should have standing to initiate such an action? Very small children won’t have the understanding of legal procedure to seek legal help, even if they need it; some third party has to be put in a position to do so. But it’s problematic having a state bureaucracy perform this function. That way lies having all parents treated as guilty of abuse and neglect until proven innocent. Letting other people initiate such actions if they are prepared to take on trusteeship themselves would open things up for people desperate to adopt to trump up charges against innocent parents; it would be like a really nasty postdivorce custody fight, except that any total stranger could start it. Not to mention some of the less pleasant reasons for which people might seek custody of small children.
Who should have standing to challenge the rights of parents as trustees, and why?
Another problem:
Who gets to decide what these interests are?
Who gets to decide what these interests are?
Well, as a constitutionalist libertarian, I would say that’s the job of the courts.
There will, I think, be some cases where it’s clear that something is not in the child’s interest. Brutal punishments, torture, and the like, or starving a child, would be obvious examples. Other cases aren’t so obvious. But the common law has done reasonably well by having courts spend century after century drawing such lines in problem cases.
Personally, I would tend to presume in favor of the person who has been caring for the child. If you’ve been paying to feed it, shelter it, clothe it, and get it to the doctor; if you’ve sat up with it when it was sick and comforted it when it was frightened; if you’ve talked with it, played with it, read to it—then you’ve been acting as its trustee ought to act. And continuity of care has a value in itself. But there ought to be some way to present evidence of dereliction of duty and have your trusteeship ended.
William, but of course we are talking about borderline cases – we always are, aren’t we:-) As I understand it, it is not the job of the courts to establish principles, but to uphold the existing ones. What if parents decide that it is in the best interests of their teenage son/daughter to work, rather than go to school?
When I was a kid, I had pedophilic tendencies. Now that I am an adult, I find that I still have pedophilic tendencies. Nothing major, not the psycho stalker type, the proper term would be omniphile rather than pedophile, I guess. (I’m not really a necrophile, nor yet a zoophile, but I can see why others would be).
That being said, children are the resource of the future, and should be cherished and protected as long as possible.
I just happen to believe that the age of accuntability (or consent if you like) should be set at 12/13. We coddle our children far more than any other society has at any point in time. I don’t hold with underpaid ‘child labour’ in unsanitary, unsafe sweatshops or mines, but it is a fact that offspring in pre-Industrial Revolution times were expected to contribute to their household’s workforce. There was a time when betrothals took place really early for Chinese people.
If we started teaching our children responsibility early, and progressively expect them to bear up to adulthood, I believe a lot of the ‘me! generation’ attitude will dissolve within 20-25 years.
Gregory, the problem is with the actual idea of a uniformly enforced age of consent. Each child reaches puberty at a different age. More importantly, the same goes for their emotional maturity. There should be a way to leave this matter up to the parents.