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Making

Child porn and thoughtcrime

I am proud to announce that I have recently made the last album by the late tenor saxophonist Michael Brecker, a careering post-bop blast with supergroup backup from Pat Metheny, John Patitucci, Herbie Hancock, Jack DeJohnette, and Brad Mehldau. You might object that no, it was Brecker & co themselves who made that album, appealing to provable studio dates in 2006 and photographic evidence, etc; but that would only demonstrate your ignorance as to the definition of “making”. I downloaded Testament from iTunes, and in so doing, I “made” it. Probably I should be entitled to royalties as well as artistic props.

In other news, the British actor Chris Langham was yesterday found guilty of “making an indecent photograph of a child”. Did he force a child to adopt a sexual pose in front of a camera and then press the shutter release? That would be a disgusting crime. But that’s not what he did. He downloaded some child-porn photographs onto his computer. The law says that in doing so, he “made” them.

The relevant legislation is the Protection of Children Act 1978 as amended by the Criminal Justice Act of 1994:

(1) It is an offence for a person—
(a)
to take, or permit to be taken, or to make, any indecent photograph or pseudo-photograph of a child…

Why did “make” need to be added? If to “make” a photograph is not to “take” it or permit it to be taken, what does it mean? Well, “make” was added in 1994 along with the term “pseudo-photograph”, to cover the doctoring of innocent images of children in order to render them pornographic (update: or even the complete CGI fabrication of child-porn imagery involving no actual children: see comment #12). But Langham didn’t do that either. So when did the meaning of “make” expand even further? We have the lexical ingenuity of the Appeals Court to thank in R v Jonathan Bowden, 1999:

The wording in s.1 of the 1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a photograph or a pseudo-photograph. The words “to make” had to be given their natural and ordinary meaning, and in the instant context that was “to cause to exist; to produce by action, to bring about”. By virtue of s.7 of the 1978 Act that meaning applied to negatives, copies of photographs and data stored on computer disc. A person who either downloaded images on to disc or who printed them out was making them. To download or print the images within the jurisdiction was to create new material. The reproduction of indecent material to be found on the Internet was within the mischief aimed at by the legislation when the 1978 Act was amended by adding the words “to make”.

So according to what the law perceives to be the “natural and ordinary meaning” of “make”, I did indeed make Michael Brecker’s last album, not to mention Placebo’s album of cover versions, innumerable photographs actually taken by other people, as well as articles and whole books allegedly authored before I was born. Clever me.

This use of language does serve a purpose, however, in that it disguises the nature of what is being criminalized. The law does not state clearly that merely to “look at” child pornography is an offence. It masks that fact by the verbal sleight of hand that turns looking into actual creation. (Of course, you cannot look at anything on the internet without your computer loading it onto the disk, or into a more-or-less temporary cache, or at the very least into RAM, and so making a copy.) Thus violence is done to the moral distinction between looking and doing. What is being punished is thoughtcrime.

If you download a collection of videos of beheadings by murderers in Iraq, say, are you “making” videos of beheadings? Surely not, in the “natural and ordinary meaning” of those words. I might find your close interest in beheading videos highly disturbing, but whether or not you attempted the “research” defence (as worked for Pete Townshend but not for Chris Langham; update: see comment #26), I would not consider your watching those videos by itself grounds for putting you in prison. And yet for child pornography, apparently, it is. Perhaps you think that an erotic obsession with children is so horrific that it should be classed as thoughtcrime. Very well, but let us have the law say so explicitly.

What have you “made” recently, readers?

39 comments
  1. 1  John Fallhammer  August 3, 2007, 12:32 pm 

    A very pertinent point. Having not paid close attention to the trial, I was actually under the impression that he’d been taking peedy photos himself. So QED.

    There is the point that if he was paying for the porn then he was motivating other people to abuse children to make the images, which really is nasty and deserving of severe sanction. Has that been proved, or did he just get swept up in operation Ore with all the unfortunate people whose credit card details had been stolen?

  2. 2  Steven  August 3, 2007, 2:46 pm 

    There is the point that if he was paying for the porn then he was motivating other people to abuse children to make the images, which really is nasty and deserving of severe sanction.

    Absolutely – but if that is the reasoning, then surely the offence should be accessory to child abuse, or conspiracy to commit it, or something. (According to this Telegraph report, Langham had indeed paid for a site subscription.)

  3. 3  John Thow  August 3, 2007, 7:17 pm 

    The Telegraph reports that Langham paid for a subscription to Lolitasex. This was not, in spite of the implication in the report, a child porn site but involved verifiably legal age models (with a UK contact address). It was one of the many such Operation Ore Landslide sites which the police wrongly assumed to be dealing indecent imagery. The content of Lolitasex was almost identical to that available from your cornershop in ‘Barely Legal’ or ‘JustEighteen’.

    A moot point since Langham admitted to downloading indecent images via P2P networs but perhaps another example of how language is misused purposefully by the police and prosecution to mislead juries (and the press).

  4. 4  richard  August 3, 2007, 7:38 pm 

    I want to know more about “pseudo-photographs:” if the definition of these is as broad as the doctoring of innocent images of children in order to render them pornographic then that would cover all sorts of stuff, no? Do the source images have to be photos, or could one be had up for pasting the head of Lewis Carroll’s Alice onto a porn-star’s body (or the body of a Hindu god or goddess shown in sexual congress on, for instance, the entrance to the great temple at Madurai)?

    Is the British definition of pornography as bizarre as the American one for obscenity – which is based on a series of value judgements about a work’s lack of political, artistic or cultural value? Do all these charges lead to trials with juries (if the defendant pleads not guilty)?

    Just curious, of course – unless that’s a thoughtcrime too, in which case, forget it.

  5. 5  Cian  August 3, 2007, 7:57 pm 

    Richard, as I understand it the answer is yes. What seems to have happened is that a moral panic led to the passing of a series of poorly thought laws – which is pretty much how criminal law seems to happen in this country these days.

    While I’d find somebody creating child porn from scratch on a computer pretty distasteful, I’m not convinced it should be illegal. There maybe a case for this, but nobody has really made it. Normally arguments are made about it being used to corrupt kids, which don’t make a lot of sense. Its possible that its corrupting on adults, but then its also possible that porn enables some paedophiles to control their urges. Some data would be nice.

    Child pornography involving real children should obviously be illegal because of the abuse of children. Seems reasonable to punish demand, as this presumably encourages the production. But that’s a separate argument.

  6. 6  Steven  August 3, 2007, 8:38 pm 

    John T: interesting info, thanks.

    Cian:

    Seems reasonable to punish demand, as this presumably encourages the production.

    Well, it’s worked so well for the War on Drugs…

    In any case, as John T recounts it, Langham’s downloading of images via P2P will have encouraged no one monetarily. But since most P2P software mandates uploading what you have downloaded, it might have made more sense to prosecute him for distribution of the images, an offence under 1(b) of PCA (and which is what the RIAA prosecutes music file-sharers for), thus avoiding this idiotic claim that he “made” the images.

  7. 7  Elliott Joseph  August 3, 2007, 10:08 pm 

    What utter nonsense.

    This, from the Sentencing Advisory Panel consultation which reported in August 2002, fills the gaping holes in your understanding of British law and even deals with your etymologically idiosyncratic preoccupation with the verb “make”:

    Possession of child pornography is not (as some have argued) a victimless offence.
    Every indecent photograph or pseudo-photograph of a child is, with limited exceptions,
    an image of a child being abused or exploited. Easy access to the Internet, and other
    developments in computer technology, have undoubtedly made these offences more
    prevalent. No-one knows exactly how many offences are committed, although it is clear
    that those that come to court are only the tip of the iceberg.
    It is fundamental to our proposal that sentencing for these offences should reflect the
    harm suffered by children who are abused and exploited by the production and
    distribution of indecent photographs. An offender sentenced for possession of child
    pornography should be treated as being in some degree complicit in the original abuse
    which was involved in the making [got that?] of the images. Sentences for possession should also
    reflect the continuing damage done to the victim or victims, through copying and
    dissemination of the pornographic images. Those who make [got it again?] or distribute the images bear
    a more direct responsibility for their eventual use, as well as for encouraging further
    production.

    If you want to read about the real controversy in this case, which has to do with sentencing policy in British child sex offence cases, then look here.

    Otherwise you might want to stick to whatever it is you usually talk about.

  8. 8  Steven  August 3, 2007, 10:18 pm 

    I rather think you have completely failed to understand what I wrote, but thanks all the same for your kind advice about what I should write in future.

  9. 9  John Heaven  August 4, 2007, 12:14 am 

    - ‘That’s a really good CD!’
    = “I’ll *make* you a copy, if you like.’

    Likewise, downloading images and music both entail ‘making’ a copy of data that exists elsewhere.

    In your iTunes example, you did not make the album but you did make a copy of it. Langham does not stand accused of making original indecent images but of making copies of them.

  10. 10  Steven  August 4, 2007, 12:24 am 

    Langham does not stand accused of making original indecent images but of making copies of them.

    He stands convicted simply of “making an indecent photograph”. From amended PCA:

    7.
    Interpretation.
    — (1) The following subsections apply for the interpretation of this Act.
    (2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.

    No distinction between original and copy: “indecent photograph” covers them all. Further:

    [F21 (4) References to a photograph include—
    (a) the negative as well as the positive version; and
    (b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.]

    And again from R v Bowden:

    To download or print the images within the jurisdiction was to create new material.

    Yet if I burned you the latest Queens of the Stone Age CD (which of course would be a criminal act, so I wouldn’t), I would not thereby be creating new material, would I?

    But if you make a copy of an indecent photograph, whether in physical or digital form, you have just made an indecent photograph.

  11. 11  richard  August 4, 2007, 12:33 am 

    I apologise in advance for this effete bit of hair splitting, but there’s an interesting(ly sloppy) bit of language in the report Elliott posts on his blog, regarding “the most pornographic material (levels 4-5).”

    I was familiar with the classification of pornography into levels (of “extremity,” perhaps), but I didn’t know that some things were more or less pornographic than others.

  12. 12  Steven  August 4, 2007, 12:33 am 

    Richard, to answer your question at #4:

    (7) “Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.
    (8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

    Amazing.

  13. 13  John Heaven  August 4, 2007, 12:38 am 

    The law acknowledges that the two things are different in order to make it clear that they are to be treated in the same way: X and Y are not the same, but both of them are imprisonable offences.

    I cannot see the problem with use of the word ‘make’ here. Are you arguing that the law is wrong, or that abuse of the word ‘make’ is wrong?

    Bear in mind that there is discretion at the sentencing stage, so I doubt someone who had created a couple of copies of indecent pictures would be treated the same as somebody who had created the originals.

  14. 14  Steven  August 4, 2007, 12:48 am 

    X and Y are not the same, but both of them are imprisonable offences.

    That’s not quite what the passages quoted at #10 say. They say that making an X is an imprisonable offence, and by the way a Y is an X too.

    Are you arguing that the law is wrong, or that abuse of the word ‘make’ is wrong?

    Well, if we can agree for the sake of argument that the word “make” is being abused (though I note your demurral), my argument is that such abuse tends to obscure the issue of whether the law is wrong or not and muddy any subsequent debate thereupon.

    Bear in mind that there is discretion at the sentencing stage, so I doubt someone who had created a couple of copies of indecent pictures would be treated the same as somebody who had created the originals.

    Yes, I take that point, but it is still bizarre that the two people would nonetheless have been convicted of the same offence, even if their sentences were very different. I don’t quite see the utility in collapsing moral distinctions in legislation only to hope that sentencing judges have the wit to re-erect them.

  15. 15  John Heaven  August 4, 2007, 12:53 am 

    Okay, we’ll have to agree to (cough, cough) agree on this one.

  16. 16  Kyle  August 4, 2007, 6:35 am 

    You should be careful about labelling The Law as the entity twisting the language. I once read a book where the author urged us to not blithely accept Tony Blair’s implied description of The Muslim Community as a homogenous single-faceted entity. That caution is applicable here too. There is much debate amongst lawyers and those involved in the legal industry about the scope and content of these laws.

    The sense of ‘make’ used in these offences is subtly different to the examples you give. The photographer who takes photos creates them, but may not make them. Traditionally, photos were made by someone projecting an image onto photo-sensitive paper, then immersing it in various chemicals. The legislation you discussed attempted, albeit imperfectly, to cater for the modern digital equivalent of this process. Legislators and lawyers — but maybe not all of them! — tend to think of a hierarchy of seriousness: the person who creates images of child pornography sits at the top of the pyramid; the person who makes and distributes the photos is at the next level; the person who purchases or possesses, and looks at, the images is at the lowest level.

    I think you might have missed that this legislation is designed to distinguish between the person who ‘merely’ possess child pornography, and the person who goes looking for it and creates the market for it and thereby contributes to the demand for abuse of children. (Of course, the distinction between possession and making when involving computers and the internet is the $64 question…) Your point about the concept of what falls within the understanding of ‘making’ pornography is quite right though. And I think you’re quite right that we ought always be alive to the potential for abuse of the language and legislation for ends beyond those originally envisaged. I’m not sure that I agree with you that this is the case to demonstrate the line was crossed.

    Here in Australia, we have similar offences. Our courts have considered some of the English decisions when considering those offences. The Supreme Court of South Australia considered that the purpose of the legislation is to prevent sexual abuse and exploitation of children, by denying a market to those who would produce material, and preventing access to and promotion of exploitative material: Police v Kennedy (1998) 71 SASR 175 at 185.

    The English Court of Appeal said, ‘The object is to protect children from exploitation and degradation. Potential damage to the child occurs when he or she is posed or pictured indecently, and whenever such an event occurs the child is being exploited. It is the demand for such material which leads to the exploitation of children and the purposes of the Act…is to reduce, indeed as far as possible to eliminate, trade in or possession of it. At the same time statutory defences provide a framework protecting from conviction those whose possession of such material is not prurient’: R v Land [1999] QB 65 at 70.

    When it comes to the internet, viewing material involves transmission of data from one computer, typically a “server” that hosts that material, to the viewer’s computer. A web browser saves this automatically into a “cache”, or temporary file repository, on the viewer’s computer. (This is pretty ho-hum to us here, but in courts, evidence of these processes will usually require proof by expert evidence.)

    The automatic transfer of an image to a temporary internet cache, with the necessary intent, is ‘making’ a photograph. The intent is viewing the images deliberately or intentionally whilst knowing the images are, or are likely to be, child pornography. Intention to store the images for future retrieval is not required: R v Smith; R v Jayson [2003] 1 Cr App R 212 at 220; [2002] Crim LR 659; Atkins v DPP [2000] 1 WLR 1427 at 1431.

    Further, the act of voluntarily downloading a pornographic image from the internet on to a computer screen is an act of “making” a photograph. By downloading the image, the operator is creating or causing the image to exist on the computer screen. The image may remain on the screen for a second or for a much longer period. Whether its creation amounts to an act of making cannot be determined by the length of time that the image remains on the screen: R v Smith; R v Jayson [2003] 1 Cr App R 212 at 222.

    But a person is not guilty of making a pornographic image contained in an email if he opens the email or attachment before he is aware it contains a pornographic image: R v Smith; R v Jayson [2003] 1 Cr App R 212 at 217.

    However, once the possessor appreciates the nature of the material, if it is not immediately destroyed or advised to investigating or prosecuting authorities, the possessor risks prosecution: R v Land [1999] QB 65 at 70.

    In England, the Court of Appeal has held that similar provisions in the Protection of Children Act 1978 do not contravene the right to freedom of expression contained in the Human Rights Act 1998. Legitimate possession is provided as a defence, though the burden of establish such a defence is upon the accused: R v Smethurst [2002] 1 Cr App R 50.

    Personally, although I share many of the concerns you articulate about politicians abusing language and law for their own base ends, this is one topic where I think the balance is about right.

    If you want to see some real abuses with sinister connotations for the rule of law, consider what Prime Minister John Howard had just done to Dr Mohamed Haneef here, and the way our High Court cravenly upheld our Orwellian terrorism control orders. I think they’re far worse examples of the sorts of abuses you raised in this blog comment.

  17. 17  Kyle  August 4, 2007, 6:43 am 

    I forgot to add, I read recently an article — I forget where now — where the author raised the prospect of this legislation criminalising the creation of virtual child pornography. For example, if someone created a child avatar in Second Life, and then posed it in pornographic scenes, or created Manga child porn. As it stands, it seems such activity could be caught by the legislation.

    Should it be criminal? There are no real children involved, but, might it provoke someone to later do something similar that did involve real children? Or might it feed that person’s desire for real porn images? Traditionally, criminal law doesn’t punish future intentions, only past conduct, so it wouldn’t have concerned itself with these questions. But they are cropping up, and our laws are not well-placed to answer them.

    At the very least, the fact that we’re debating them is a Good Thing.

  18. 18  Jeff Strabone  August 4, 2007, 7:45 am 

    Langham and Townsend have both tried the research defense, to varying results. Members of the legal community, from law enforcement to criminal defense, are presumably allowed to do research, at least so far as concerns the arrest of suspects and the defense of the accused. The U.S. Justice Department under President Reagan famously examined copious amounts of child pornography in order to produce a report on the subject in the 1980′s.

    I wonder: could an actor or artist or writer or other creative sort of person be granted permission by law enforcement authorities to view such material? Let’s say, to simplify things, that the applicant asked to view illegal material at a government office under government supervision. Under such circumstances, could such a person be allowed to do the ‘research’ that Langham and Townsend claimed to be doing?

  19. 19  richard  August 4, 2007, 9:07 am 

    Traditionally, criminal law doesn’t punish future intentions, only past conduct, so it wouldn’t have concerned itself with these questions. But they are cropping up, and our laws are not well-placed to answer them.

    Well, there have been situations in the past where punishment has been meted out based on anticipation of future conduct. The US invasion of Iraq is the most recent and compelling example, but Herod’s massacre of the innocents is perhaps closer to the mark. I believe the technical term for such a system is “tyranny.”

  20. 20  richard  August 4, 2007, 9:22 am 

    re “Pseudo-photograph” @ 12: amazing indeed.

    So porn involving adults dressed as ‘naughty schoolgirls’ is child porn, and subject to this legislation? Where’s the line, I wonder? What if the actress has her hair in pigtails?

    Manga itself seems like it’s not covered (as long as the visual style doesn’t approach photo-realism to an unknown degree), but what if you were to take a photo of a manga page, or included a panel in a manga which referred graphically to photographs – for instance, by using the distinctive format of image and white space found in polaroids? What of the many renaissance paintings of Venus and Cupid (which feature touching of breats or genitals) or Leo Steinberg’s famous book The Sexuality of Christ in Renaissance Art and in Modern Oblivion?”

    My apologies to all those who’ve already been through this shock reaction: it’s new to me.

  21. 21  Porlock Junior  August 4, 2007, 9:33 am 

    Well, I was about to quote Kyle’s “might it provoke someone to later do something similar that did involve real children” as demonstrating that we really are talking about thought crime, but richard did it better, so I won’t.

    There are jurisdictions in the USA where looking at the dirty pictures is specifically a crime. One may still call it a thought crime, but at least the authorities are honest. AIt’s a bit hard to understand why, if the Mother of Parliaments wanted to make it illegal to look at the pictures, it couldn’t just say so. Out here in the colonies we react to fantastic twistings of meanings of words like “make” by muttering about the lawyers’ needing work.

    BTW, this being one of the rare occasions on which I can make invidious comparisons of this sort: last time I looked, the Supreme Court had ruled that the law against fake child porn was invalid, having no relation whatever to the stated rationale and exemption for the limitation of free speech that the law (any pornography law) constitutes.

    But everybody here is talking about he making of some kind of durable physical copy of an album as a demsonstration of the absurdity of the law (or rather, the interpretation). Think again: the playing of the album creates the music and is therefore a making. Think of all those sound waves you’re making. I just don’t see how you get away with doing this when we have copyright laws.

  22. 22  dsquared  August 4, 2007, 1:59 pm 

    hmmm, I think this is just a matter of the philosophical grammar of “is a copy of”. A copy of a work of art is not itself a work of art, but a copy of an obscene image *is* itself an obscene image. Beheading videos are a bit more troublesome to deal with this way though.

  23. 23  Steven  August 4, 2007, 3:45 pm 

    Kyle:

    Further, the act of voluntarily downloading a pornographic image from the internet on to a computer screen is an act of “making” a photograph.

    We agree that this is what the law says; apparently we disagree as to whether it is absurd. What Langham is to be punished for is simply looking at the material (since, as we agree, if it is accessed over the internet you cannot look at it without “making” it in this peculiar sense, and they did not prosecute him for intent to distribute). So why not do as Porlock Jr tells us some US jurisdictions do and say outright that looking at the stuff is a crime in itself? That was rather the burden of my original post, after all.

    Traditionally, criminal law doesn’t punish future intentions, only past conduct

    Not so: consider the offence of possession with intent to distribute of PCA 1.c., or in general offences of conspiracy, or the criteria used at parole hearings, etc etc.

  24. 24  Steven  August 4, 2007, 3:58 pm 

    A copy of a work of art is not itself a work of art, but a copy of an obscene image *is* itself an obscene image.

    Yes, but I still disagree with R v Bowden that copying or duplicating an obscene image, or the data that encodes it etc, amounts to making an obscene image in the “natural and ordinary meaning” of the verb “to make”.

    Beheading videos are a bit more troublesome to deal with this way though.

    Yes, why is that? Obviously I introduced the example because I suspect there is something unexpressed underlying our differing attitudes to the two examples, though they are ostensibly the same in a technical sense.

  25. 25  richard  August 4, 2007, 5:19 pm 

    In the US, beheading videos are not actionable like pornography: only sexual material has the potential to be obscene (Miller vs California, 1973: a thing is obscene if “the average person in the community” feels it (a) “applies to the prurient interest of its intended audience,” and (b) “depicts sexual conduct in a patently offensive way,” and if, further, a “reasonable person” feels it “lacks serious literary, artistic, political or scientific value.” – a legal and evaluative morass if ever I saw one, but then, whenever I look at the way laws are written I’m struck by how stupid they are).

    Freakish, eh?

  26. 26  Jeff Strabone  August 4, 2007, 11:26 pm 

    In 2002 the U.S. Supreme Court ruled that the provisions of the Child Pornography Prevention Act of 1996 that prohibited ‘virtual child pornography’ were unconstitutional. The case was Ashcroft v. Free Speech Coalition, 535 U.S. 234.

    Surprisingly, the Court decided the case on the appropriately narrow grounds that child pornography deserves to be prohibited because it harms children. Where there are no children, there is no automatic prohibition. The Court also found that the CPPA provisions were ‘overbroad’.

    Whatever one thinks of the majority decision by Justice Anthony Kennedy, it is a model of clear language. From the syllabus:

    ‘Virtual child pornography is not “intrinsically related” to the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect.’ 535 U.S. 234, at 236.

    [...]

    ‘Finally, the First Amendment is turned upside down by the argument that, because it is difficult to distinguish between images made using real children and those produced by computer imaging, both kinds of images must be prohibited.’ 535 U.S. 234, at 237.

    Interestingly, and also appropriately, another provision of the CPPA was neither challenged nor overturned. That is the provision which prohibits, say, the heads of real children who did not participate in the production of child pornography from being digitally added to pornographic images:

    Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.’

    That, too, is precise. [Ferber is New York v. Ferber, 458 U.S. 747 (1982), the Court's child porn precedent.]

    There has been some dispute in this comment thread as to whether or not Steve is justified in objecting to the abuse of the word ‘making’ in UK law. The Ashcroft case in the U.S. shows that it is indeed possible to legislate and decide very precisely in these matters. And when these matters, or any matters for that matter, are addressed precisely, they are more likely to be decided well.

  27. 27  Daniel F  August 4, 2007, 11:14 pm 

    There isn’t a “research defence”.

    If you deliberately download/”make” child pornography, for any reason at all, you are guilty under the legislation.

    Pete Townshend didn’t run any defence – he admitted he was guilty. For whatever reason, the Crown Prosecution Service decided to proceed against him not by way of prosecution but by formally cautioning him (a precondition of administering a caution is that the suspect admits that s/he is guilty of whatever offence s/he is accused of).

    Chris Langham pleaded not guilty to the downloading/”making” charges. But he accepted under cross-examination, as he had to, that his “research defence” was not a defence at all, that he had broken the law and was guilty of child pornography offences. He explained that even though he accepted he was guilty and should therefore be convicted, he had pleaded not guilty as a personal statement that he was not a paedophile. The judge in his case would have directed the jury before they retired that even if they accepted Langham’s explanation for downloading the material, they should find him guilty. The newspapers were wrong therefore when they reported that the jury “rejected Langham’s explanation for downloading child porn” – they may very well have accepted it, or decided that they didn’t need to decide the question one way or the other, given that either way he was guilty. (Of course, it would have been open to the jury to acquit him even though he had admitted he was guilty, if they had decided to do so out of mercy, for example.)

    To pick up Jeff’s question: what about a police officer or academic who downloads child pornography in the course of an officially recognised research project or anti-paedophile operation? Again, under the law, s/he would be guilty of the offence. But the CPS would in every such case take the view that a prosecution was against the public interest, and proceedings would never be initiated.

  28. 28  Kyle  August 5, 2007, 3:20 am 

    Steve, I still don’t think you’ve adequately considered the analogy used by the laywers: downloading analogous to dark-room production.

    Your suggestion that merely looking at child pornography should be criminalised does the thing you decry: crossing into thought-crime. It attempts to proscribe something that happens inside the mind. The reason, as I understand it, the law shies away from this and prefers to concentrate on more concrete and observable facts is because it doesn’t want to criminalise thought processes, and because of the evidentiary questions involved. (Instead of Winston’s telescreen, we would need eyeball scanners and trackers installed above every computer monitor!)

    It is far easier to deal with tangible possession, receipt, transmission and distribution of child pornography and infer a person’s intent concerning it based on what they say or do, than it is to guess what goes on in their mind IF they see it. (IMHO.)

    I thought the main thrust of your original post was that ‘make’ was misapplied by the law in this case. I still think you didn’t consider the different view of ‘making’ I raised.

    As imperfect as the current interpretation is, I think it is adequate, but agree we must continue to seek improvements.

    I also agree that the application of the principle to copyright law is undesirable. Our copyright laws in Australia have only just changed to allow us to copy CDs to computers and MP3 players. Until then, everyone with an iPod was a criminal!

    Clearly, a legal system that says the principle is okay for one thing, but not another, is not on strong theoretical foundations. I don’t know how we resolve this. The only consolation I have is that when I read the works of philosophers and jurisprudentialists I see that they too have trouble articulating a robust system for all occasions.

  29. 29  Steven  August 5, 2007, 11:23 am 

    Daniel:

    There isn’t a “research defence”.
    If you deliberately download/”make” child pornography, for any reason at all, you are guilty under the legislation.

    Another strange offect of R v Bowden is that it appears to negate PCA’s explicit allowance for a defence, here:

    (4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—
    (a) that he had a legitimate reason for distributing or showing the photographs [F5 or pseudo-photographs]or (as the case may be) having them in his possession;

    So it seems there can be a “legitimate reason” for distribution or possession with intent to distribute, but apparently not for offences under (1)(a), including “making”. But since it was subsequently decided in R v Bowden that it is impossible to possess something found on the internet without having “made” it, this means that effectively there are no legitimate reasons at all. Curious.

    Kyle:

    Your suggestion that merely looking at child pornography should be criminalised does the thing you decry: crossing into thought-crime.

    Er, no. It is my contention that merely looking at child pornography is already criminalised. That being the case, the law should say so. Whether it should be criminalised is another matter entirely.

  30. 30  Steven  August 5, 2007, 11:42 am 

    The Ashcroft case in the U.S. shows that it is indeed possible to legislate and decide very precisely in these matters.

    Indeed: thanks.

  31. 31  Kyle  August 5, 2007, 11:48 am 

    Merely looking at child pornography is not criminalised UNLESS it is done online, in which case the law says you are doing the digital equivalent of producing photos in the darkroom.

    If anyone, in the UK, looks at hard-copy photos or magazines of child pornography, they commit no offence. (But, if they possess it, they probably commit a different offence. It is possible, though difficult and unlikely, to view without possessing.)

    In addition to the Protection of Children Act 1978, see also the Criminal Justice Act 1988 s 160.

    The offences are available at http://www.statutelaw.gov.uk/.

  32. 32  Steven  August 5, 2007, 11:58 am 

    As though to prove my point that the language of English law in this matter causes confusion, we have the philosopher Mary Warnock stating today:

    the offence for which Langham was convicted was of watching child pornography

    Effectively he is indeed to be punished for merely “watching” child pornography, even though he stands convicted of “making” it.

  33. 33  Kyle  August 5, 2007, 12:04 pm 

    Surely the confusion is the imprecision in Mary Warnock’s language? Perhaps if we referred to what the court actually said, rather than what Warnock says in a media article?

  34. 34  richard  August 5, 2007, 5:54 pm 

    it is impossible to possess something found on the internet without having “made” it
    There’s the other small matter that data can get onto a user’s hard drive or cache without that user asking for it, through hacking, or someone else simply sitting down at the user’s computer in their place. Is the presence of data on the hard drive considered sufficient evidence of the user’s act of making?

    I think this is where the darkroom analogy breaks down: here a trail of photos, or ‘photo footprints,’ are strewn all over the various servers through which the data passes.

  35. 35  Steven  August 5, 2007, 6:05 pm 

    Daniel informs us:

    what about a police officer or academic who downloads child pornography in the course of an officially recognised research project or anti-paedophile operation? Again, under the law, s/he would be guilty of the offence.

    Arguably this fact too stands as criticism of the way the law is written. Is there any other kind of offence for which it is true that, in order to prosecute a crime, law enforcement officers are systematically obliged to commit it themselves? (I assume that in the Langham case specifically, police at the least copied offending data from Langham’s computers, thus “making” child porn.)

  36. 36  hardindr  August 5, 2007, 9:09 pm 

    Re # 26 and 35:

    Unspeak readers maybe interested in these two posts (here and here) from Susie Bright’s blog in which she interviews Debbie Nathan regarding issues regarding researching child pornography, and her run in with (http://www.fair.org/index.php?page=3052) Kurt Eichenwald of the NY Times.

  37. 37  John Fallhammer  August 6, 2007, 4:14 am 

    At a bit of a tangent, surely the darkroom analogy would be not downloading data but instructing a computer to convert the binary data into a visible image on a screen.

    Being an actual action (even though one that may be largely automated), “causing such-and-such images to be displayed” could be treated as a crime without having to get into the realms of thoughtcrime. Unfortunately, it might end up being tricky to prove in most cases.

    It might be simpler just to add something like “or copy thereof” at suitable points in the law. This would have the benefit of not leaving the inattentive (such as myself) with the impression that Mr Langham had been taking obscene photographs himself, which is the sort of thing that happens when words like “make” get absurdly stretched like this.

  38. 38  Kyle  August 6, 2007, 4:51 am 

    Richard, your comment about the dark-room analogy struggling with the passage of data over the internet is spot on. That lead to the courts then reading into the offence the necessity for knowledge of the nature of the material as part of the requisite intent (see my post at #16).

    This is quite common: for many years courts have struggled to make sense of legislation that doesn’t adequately express the scope and content of the activity it seeks to proscribe. Imputing knowledge into the offence is a common remedy; so much so, that it is hardly thought controversial in forensic settings.

    To explain it in light of the dark-room analogy, consider it like this. If a person is given a roll of film to develop and prints the photos only to discover they are of child pornography and alerts the police (or other relevant authorities), then the law excuses the making on the basis it was done without knowledge of the obscene nature of the images.

    If, after realising the obscene nature of the images, the person chooses to keep them (let alone make more), s/he commits the offence.

    Steven’s point about the imprecision in the legislation is quite right, but I think the courts have reached an appropriate solution.

    As for the desirability of this…this is why law reform bodies are created (see http://www.lawcom.gov.uk/), and why courts have held the role of interpreting and applying legislation for as long as they have. The shortcomings are recognised. It’s appropriate to consider them all the time, and to constantly review and improve the law whenever and wherever we can, not just when the media whips itself into a frenzy over one case.

  39. 39  Mark  August 10, 2007, 4:32 pm 

    At #21, Kyle says “If anyone, in the UK, looks at hard-copy photos or magazines of child pornography, they commit no offence. (But, if they possess it, they probably commit a different offence. It is possible, though difficult and unlikely, to view without possessing.)”

    It is easy to view child pornography without possessing; that is, it is possible to view material that might get you locked up for “child porn” offences if you were to possess it.

    Simply go to Waterstones, Borders, your local large library, etc, and ask to see a the work of people like David Hamilton, Jock Sturges, Will McBride, Larry Clark, Wilhelm von Gloeden, Lewis Carrol…



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