Sexual offences: pornography and children

CHAPTER 1: OVERVIEW OF THE INVESTIGATION

A Introduction

1.1 As part of the overarching investigation into the review of all sexual offences, this issue paper seeks to review the legislative framework that currently applies to children in respect of pornography within the larger framework of all statutory and common law sexual offences. The secondary aim is to consider the need for law reform in relation to the legislative framework governing children and pornography. In accordance with the Constitution of the Republic of South Africa, 1996 (the “Constitution”), the Children’s Act 38 of 2005 and the Criminal Law (Sexual Offence and Related Matters) Amendment Act 32 of 2007 (the “Sexual Offences Act”) a “child” is defined as a person under the age of 18 years. This distinction in age between a child and adult will be used for purposes of this investigation.
1.2 The issue paper inter alia focuses on the concern raised in a letter to the South African Law Reform Commission (“the Commission”) by the (then) Deputy Minister of Home Affairs, in his capacity as Chair of the Inter-Ministerial Committee on Pornography. The letter highlighted concerns around the ease with which a child is able to access and view pornography through technology and the mass media and the attendant risks thereof.
1.3 The opportunities offered by the mass media to access a varied and vast amount of information, educational material and entertainment and to actively engage in remote communication using electronic tools is not without risks. One of the risks that children face when engaging with the mass media and using electronic tools in South Africa is that they may intentionally seek or unintentionally be exposed to, sexually-explicit material which may be illegal or may be legal only for adults. In recent months and years, voices in government and more specifically the (then) chairperson of the Inter-Ministerial Task Team on Pornography, the Deputy Minister of the Department of Home Affairs,² the Film and Publication Board (the FPB), parents' groups, feminists³ and other child protection groups⁴ have become more audible in raising their concerns regarding the pervasiveness of pornography in the mass media as well as society in general, and the negative impact this has on children.
1.4 Many children who surf on the crest of the technology wave have parents, caregivers, educators and even peers who have a very basic or no understanding of this technology. Hence they have no ability to engage with, contextualise, guide or restrict access to material available through this technology which may be harmful to them. Although these children are technologically and information wise often beyond their years, they do not possess the equivalent levels of emotional maturity (the term kids growing older younger (‘KGOY’) has been coined to describe this niche of the market).⁵ It has been found that young people tend to be aware of the dangers and risks that are attached to the use of information and communications technology (“ICT”),⁶ the Internet, and social media, but that young people are also acutely aware of the risk of social exclusion.⁷ The assumption then is that young people may expose themselves to a known risk for the sake of social inclusion.
1.5 It is argued that pornography is ubiquitous as never before. According to Fagan⁸ the introduction of pornography to the information highway has increased its accessibility. With the click of a mouse, without a credit card, anyone using the Internet can access vast numbers of images of people having sex in a variety of ways, many of them unusual and cruel.⁹
1.6 The capacity, willingness and acceptance of responsibility of the media-, ICT and entertainment industries to protect children from exposure to potentially harmful, disturbing and age-inappropriate materials is fundamental to the welfare of children.
1.7 The practice of children using technology to create and distribute explicit self-images (essentially creating child pornography (child abuse material)) is also of concern. ¹⁰¹¹ A child may create or distribute explicit self-images out of free will or as a result of grooming.¹²
1.8 For the purpose of this paper, four areas of concern have been identified, namely:

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  Access to or exposure of a child to pornography (child abuse material);
  
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  Creation and distribution of child pornography (child abuse material);
  
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  Explicit self-images created and distributed by a child; and
  
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  Grooming of a child and other sexual contact crimes associated with pornography or which are facilitated by pornography.
  

B A note on terminology

1.9 From the outset the Commission takes the stance that “child pornography” is not pornography but rather the memorialisation of child abuse ­ increasingly in digital form. Interpol reports that most law enforcement agencies working with child sexual abuse material believe that the term “child pornography” is misleading when describing images of the sexual abuse of children.¹³ Interpol is of the view that “a sexual image of a child is ‘abuse’ or ‘exploitation’ and should never be described as pornography”.¹⁴ It is further of the view that child abuse materials are documented evidence of a crime in progress, namely a child being sexually abused.¹⁵ Interpol views the terms “child pornography” or “kiddy porn” as trivialising the seriousness of the abuse perpetrated on children. Interpol suggests that such terms legitimise this form of abuse by including it with other types of pornography which are used for and by adults for their sexual pleasure.¹⁶

1.10 To ensure an adequate description of the sexual abuse, degradation and exploitation of children, the Commission has considered replacing the term “child pornography” with the term “child abuse material”. The latter term, in the words of Professors Max Taylor and Ethel Quayle,¹⁷ “unambiguously expresses the nature of child pornography, and places it firmly outside the range of acceptable innuendo and smutty jokes.” The term “child abuse material” also describes such materials from within a victim-centred perspective, confirming that these are materials which will abuse, degrade and exploit children portrayed as sexual objects and are not simply images of children who have been abused.
1.11 Interpol suggests several alternative definitions which could be used in place of “child pornography”.¹⁸ These include:

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  Documented child sexual abuse;
  
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  Child sexual abuse material;
  
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  Child abuse material (CAM);
  
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  Depicted child sexual abuse;
  
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  Child abuse images (CAI); and
  
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  Child Exploitation Material (CEM).
  

1.12 The Commission is alive to the fact that the terminology used in the debate on children and pornography is integral to the larger debate on harm, rights and the legality of pornography. For this reason the Commission elects to use the term “child abuse material” instead of “child pornography” ­ unless a direct quote, legislation or case law uses the term “child pornography”. This aligns with the stance taken by Interpol on this matter.

1.13 However, having made this decision, the Commission also flags the anomaly where a child seemingly of his or her own volition, or as a result of grooming, produces such images. Such images would also constitute “child abuse material” and once published could be used for illegal purposes by child exploiters even though ostensibly no abuse is present. In uncontested instances of voluntary peer-to-peer sharing of material it may be apposite to refer to the material as “images of inappropriate behaviour” or “explicit self-images” instead of “child abuse material”.
1.14 The Commission has also, as advised by its advisory committee, elected to refer to the consumers of child abuse materials as “child exploiters”. The term “paedophile” is deliberately not used in this paper as this is a clinical diagnosis of a person who is sexually attracted to children. The term preferred by law enforcement officials is “child exploiter”.