What is a child?

Consequently, images that depict such characteristics might be taken to be those of a child.

There are, however, other difficulties in determining the age of a child from images: children might be older or younger than they appear. For example James D Tanner, MD, designed a scale of growth patterns in juveniles (the Tanner Scale), which is often given as evidence in child pornography prosecutions where the age of a depicted individual is uncertain. However, Tanner and his colleague, Arlan Rosenbloom point to the misuse of this scale in courtroom procedure.

... we wish to caution pediatricians and other physicians to refrain from providing “expert” testimony as to chronological age based on Tanner staging, which was designed for estimating development or physiologic age for medical, educational, and sports purposes, in other words, identifying early and late maturers. The method is appropriate for this, provided chronologic age is known. It is not designed for estimating chronologic age and, therefore, not properly used for this purpose. (Rosenbloom, A. L. and Tanner, J. in PEDIATRICS Vol. 102 No. 6 December 1998. "Misuse of Tanner Puberty Stages to Estimate Chronological Age.")

From this it is possible that images of late-maturers could appear to represent individuals who are much younger. Even if that were not so, it would be difficult, if not impossible, to swear in a child pornography prosecution, that the image of a naked individual is definitely that of a 15-, 16- or 17-year-old and not of an 18- or 21-year-old. See here.

One final point on appearance: because it is difficult to guess an individual’s legislated age by sight alone governments introduced proof of age identity cards, which must be presented when and where required - in pubs, movie theatres, video-hire stores, for example. As this is much more than a tacit admission that mistakes are made in real life, how much more the risk that similar mistakes are made when judging age from an image.

The sexually active child

It can be reasonably agreed that a child is one who has not reached puberty but I question why older individuals, (legislated children) from 13 to under 18, should still be called children for the purposes of child pornography law when they, in considerable numbers, clearly understand what they are doing sexually.

According to Joan Sauers in Sex Lives of Australian Teenagers, 97 per cent of girls surveyed and 93 per cent of boys had had some sort of sexual experience with someone else by the time they were 17. Furthermore, 30.5 per cent of girls and 31.5 per cent of boys had had their first experience, although not always entirely sexual while still legally underage.

When asked: “How old were you when you had your first sexual experience with someone else?” many thought of early childhood instances of childhood games like “doctors and nurses” while most described their first “post-puberty kiss”. One in three girls (33 per cent) and nearly one in four boys (23.5 per cent) had their first sexual experience between ages 11 and 13. By age 14 more than a quarter of boys and girls had had oral sex and “one-third of all respondents had had sexual intercourse before the legal age of consent”. Of those girls aged 14 to 16, one third (33.5 per cent) had had sexual experience (not necessarily intercourse) with a partner; of boys in the same age group, 38 per cent had had a similar experience.

Sauers’ findings equate those known to Planned Parenthood of New York vice-president, Leslie Kantor: “The vast majority of adolescents in America and across the globe enter into sexual relations in their teen years” (Levine J., Harmful to Minors: The Perils of Protecting Children from Sex).

There is a further point: it would be surprising if 13- to 17-year-olds “across the globe” thought of themselves as children. They are called children because those in authority say so. However, as it bears on censorship law, images of 17-year-olds in sexual situations are considered child pornography. Thus, even though young people of those ages may lawfully consent to sex, and, by reasonable extension, consent to their activity being recorded as images, they would be in breach of child pornography law should they manufacture, distribute, possess or access the images as in the instances of “sexting” (see Nina Funnell’s piece, On Line Opinion, April 7, 2009.)

The expedient child

I now propose to call people between 13 and 18 “expedient children” because this is the only reasonable term that can describe the expedient and/or ambivalent attitude of authority towards young people.

At age 11, children typically move to a secondary school, because society recognises a level of maturing in children such that they are deemed capable of a greater understanding of life and learning. The law also recognises that at 11 years children are aware of the effects of their actions.