Child porn and thoughtcrime
August 3, 2007
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—
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?