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Images of children: there's no harm in looking

By Bob Ryan - posted Tuesday, 25 July 2017


As part of the research for a doctoral thesis, I tested among my friends and acquaintances the proposition that there should be no censorship of arts and media. Most often, supposing there were to be no censorship, responders asked what would be done about child pornography. At that time, the Henson affair (see below) and the image of a naked six-year-old girl on the cover of an art magazine were hot topics; any talk of inappropriate images of children gave rise to overly defensive and accusatory remarks.

The air has cooled a bit now so it might be worthwhile to re-introduce what is unquestionably a delicate and controversial subject in the hope that some useful debate will ensue from the arguments put forward.

From my studies, I concluded that the laws relating to proscribed images are a mess; they have not achieved their aims and their enforcement has resulted in some serious injustices.

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The observations here are confined to a broad-brush look at two aspects of what the laws call child pornography: (1) making and distributing: (2) looking and free downloading.

Child pornography and child sexual abuse include depictions of torture, cruelty, sexual acts, nudity, child representations, manipulated illustrations and descriptive text. (Let it be a given that references to child pornography include child sexual abuse.)

But exactly what is child pornography?

If we separate the two components that make up the term, the answer should become immediately clear; child pornography is images of children involved in overtly sexual acts. I say should because that is likely what most of us understand but according to the law we are wrong. Thus, there is some confusion between what is generally understood and what the law states.

The following three examples illustrate some of the confusion.

(1) In May 2008, a troop of police raided a Sydney art gallery and seized a number of large photographs, the work of artist photographer Bill Henson. The images were not of sexual acts. Many considered the pictures high quality art, but Ms Hetty Johnston, founder of the child protection group, Bravehearts, declared them child pornography, thus instigating the police raid. The images were judged not pornographic.

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(2) A man was found to have sexually explicit images of The Simpsons' children on his computer. In the magistrate's court the man was found guilty of possessing child pornography; he appealed to the NSW Supreme Court that the images were not of real people, therefore no offence against a person was committed. The judge upheld the magistrate's decision with a 6,000-word explanation of why The Simpsons images were representations of persons within the meaning ofthe law.

(3) In August 2016 the Sydney Morning Herald (SMH) ran a story about child-like sex dolls. At that time, border force officials had seized 18 consignments of child-like sex dolls sent from overseas since 2013. The life-size dolls, which resemble children as young as five are sold wearing lingerie, have movable joints and come with heating instructions. The dolls were described as being "anatomically correct". These would most certainly be judged representations of persons within the meaning ofthe law.

The inclusion of non-sexual images and representations of persons would appear to be unrelated to the purpose of anti-child pornography law which, in short, is to protect real persons aged under 18 (children) from sexual harm. (Incidentally, my researches so far have found no evidence of a trade in non-person sexualised images. I'd be grateful for any leads readers can provide here.)

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About the Author

Bob Ryan is a PhD candidate at Macquarie University; his thesis is on Censorship.

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