Most people consider pornography to be graphic images of consenting adults. However, there are those whose sexual interest is directed towards children and, as such, a whole other market of pornography exists known as ‘kiddie porn’. Child pornography is illegal in Canada. Children do not have the knowledge to willingly consent to these types of behaviours and the effects can have both immediate and long-term harmful consequences. Criminalizing child pornography, however, has proven to be a difficult balancing act between the protection of children and the protection of the rights set out in the Charter of Rights and Freedoms.
Defining Child Pornography
The Criminal Code defines child pornography under section 163.1(1) as:
A photographic, film, or other visual representation, whether or not it was made by electronic or mechanical means;
That shows a person who is or is depicted as being under eighteen years and is depicted as engaged in explicit sexual activity or;
The dominant characteristic of which is the depiction, for sexual purpose, of a sexual organ or the anal region of a person who is under the age of eighteen years or;
Any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offense under this act.
Any written material whose dominant characteristic is the description, for sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offense under this act: or
Any audio recording that has as its dominant characteristic the description, presentation or representation, for sexual purpose, of sexual activity with a person under eighteen years of age that would be an offense under this act.
Essentially, child pornography is any pornographic image or representation which involves a minor. In Canada, this means an individual under the age of eighteen. Producing, distributing, possessing, and accessing child pornography are offenses under the Criminal Code.
Types of Child Pornography
Child pornography can be broken down into two categories: erotica and pornography. Child pornography is any material that is prohibited by law. It is a visual image or depiction of a child engaged in a form of sexual behaviour. Types of child pornography include explicit photographs, videos, films, and magazines. Child pornography can be further classified as either homemade or commercially produced. Homemade pornography often involves neighbourhood children who are manipulated and bribed and unaware of what they are doing. Homemade pornography is usually not sold, but rather created for personal use. Commercially produced pornography, on the other hand, is made to be sold. The children in this type of material tend to be older, often homeless, and need the money to survive. Child erotica is any material relating to children that can function as some type of sexual instrument. The material itself may not be illegal, but it will have significant meaning to a pedophile. Some common examples are toys/games, books/drawings, letters, fantasy writing, souvenirs, and ordinary photographs.
Child Pornography and the Law
The legislation on child pornography was hastily made and passed through parliament in less than six weeks and became law on June 23, 1993. Before this, possession of child pornography was not considered to be an offense; the focus was only on the producers and distributors. The word “pornography” itself was not even a part of the Criminal Code, it fell under the category “offenses tending to corrupt morals” and was referred to as “obscene material”. There was a lot of worry surrounding the new legislation, one of the main concerns being that it was too broad and would result in difficulties and need a lot of clarification. Authorities also admit that, when making this new legislation, not much consideration was paid to the Charter.
The case of R. v. Sharpe motivated this new legislation surrounding child pornography. Sharpe was arrested after police found a collection of photographs of nude teenage boys, some of whom were engaged in sexual acts with each other, in his apartment. Sharpe was charged under Section 163(1) of the Criminal Code for illegal possession and possession with the purpose of distribution or sale. In court, Sharpe argued that the new pornography laws violated his right to freedom of thought and expression. He claimed that, since he was interested in teenage boys, he should be allowed pornography related to his sexual interests. Chief Justice Beverley McLachlin agreed that the legislation surrounding pornography did infringe the freedom of expression, but that this could be justified under Section 1 of the Charter because the government objective of protecting children outweighed the violation. The Sharpe case did, however, have an impact on the pornography legislation. The Court determined that there was no reasonable risk of harm to children if the pornographic material possessed is:
“self-created expressive material, i.e., any written material or visual representation created by the accused alone, exclusively for his or her own personal use;
and private recordings of lawful sexual activity, i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.”
In 2011, Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service came into force in Canada. This law is intended to fight Internet child pornography by requiring Internet service providers and other persons providing Internet services (e.g., Facebook, Google and Hotmail) to report any incident of child pornography.
In the Criminal Code, it is an offense to make, distribute, possess and access child pornography; in 2012, the Safe Streets and Communities Act (Bill C-10) imposed higher mandatory minimum penalties for these offenses. Furthermore, in this legislation a new offense was made which prohibits a person from providing sexually explicit material (adult pornography) to a child for the purpose of facilitating the commission of a sexual offense against that child.
There are a variety of offenders involved in child pornography, someone in each step of the process from producers to the actual users. In order to properly combat and eliminate child pornography, the individuals in every step of the process must be apprehended. The common groups of child pornography offenders are:
The Producers: These include those who employ, use, or advertise minors to be used in any type of pornographic material. Producers are behind the making of both homemade and commercially produced pornography.
The Distributors: More commonly involved in the commercially produced material, distributors are ones who sell, mail, loan, give, export, advertise, or transport any pornographic material. Many pedophile organizations, like the North American Man-Boy Love Association (NAMBLA), act as contact services for pedophiles to obtain child pornography.
Coercers: These are the people who encourage children to be a part of any type of pornographic material. These individuals rely heavily on bribery and persuasion and are very successful. They tend to manipulate the child by providing them with things that they want such as attention or money.
The User: These are the people that use and take pleasure in pornographic material; most commonly pedophiles.
Another issue that arises in the realm of child pornography is the use of peer/self-exploitation or “sexting” among teenagers. In certain circumstances, sexting may be considered criminal in nature. These could include the following:
- Youth inadvertently creating child pornography.
- Youth intentionally producing or sharing images/videos that meet the child pornography criteria.
- Youth engaging in behaviour that involves intimidation and/or coercion of the affected youth in combination with the creation and sharing of child pornography.
- Criminal harassment, extortion, voyeurism, and impersonation.
Examples of this of peer/self-exploitation have recently been seen in Canadian courts. A British Columbia court found a 16-year-old girl guilty of distributing child pornography in 2014 for sharing a nude photo of her boyfriend’s ex. Her case is the first example in Canada of a teenager being convicted of distribution as a result of sexting. Later the same year, two Nova Scotia boys pleaded guilty to child pornography offenses in the case of Rehtaeh Parsons. Parsons’ had been photographed without her consent during a sex act with one of the boys. The boy who took the photo received a conditional discharge while the boy who distributed the photo was given probation. Both were required to submit a DNA sample to the national databank.
Policing and Child Pornography
In 2013, Statistics Canada documents 2668 incidents of child pornography were reported to the police. This is a 163% increase over the reports in 2003. However, these numbers may be greatly under-estimated because of the nature of the crime. Child pornography is a hidden crime. It is hard for police to find and catch the offenders, especially if the material is homemade. Until the Internet, child pornography was difficult to distribute and few people were aware of it. The Internet plays a large role in the distribution of child pornography today. Anyone can now access websites, as long as they know where to look. The fact that it is now more easily accessible does not necessarily mean it is easier for the police to track. The Internet is endless and there are countless websites containing illegal material, too many for the police to be able to monitor themselves. For this reason child pornography tip lines, such as Cybertip, exist for the public to help police in their mission to eliminate child pornography.
Cybertip: Canada’s National Tip Line
Cybertip is Canada’s national tip line for reporting the online sexual exploitation of children. It was launched in 2005 and is operated by the Canadian Centre for Child Protection Inc. The tip line triages public reports of online material that is potentially illegal and send them to the appropriate law enforcement agency.
How it works:
- An individual comes across material that they consider to be possible evidence of online child abuse.
- The individual reports the material either online at www.cybertip.ca or over the phone at 1-866-658-9022. This can be done anonymously.
- The web server receives the report in a secure fashion.
- The report is prioritized for analysis based on the information it contains as well as the order in which it was received.
- An analyst breaks down the report based on the number of technology types. For example, if the report contained an e-mail address as well as a website this would be considered 2 different types.
- Each incident is assigned a secondary classification based on the Criminal Code.
- The analyst validates the report
- If the incident is a website with child sexual images, the analyst describes the images and assigns them rating based on the severity of the abuse and sexual maturation.
- If the incident proves to be potentially illegal it is sent to the appropriate law enforcement jurisdiction and may also be forwarded to child welfare agencies in Canada.
As well as taking tips from the public, Cybertip also contributes to public education and prevention through online safety strategies as well as national awareness campaigns. As of 2014, there have been more than 135,000 reports received through Cybertip. However, these numbers are believed to be an underestimate of what is really out there. Child pornography online seems to be a growing issue.
Effect on the Victims
Being a part of child pornography has severe negative effects, both long term and short term. Although each child reacts differently depending on the frequency, the acts involved, and the child’s personality, no child escapes unscathed. The effects of child pornography can be compared to the effects of incest or sexual abuse. However, pornography victims face different trials as their image is circulated amongst hundreds or thousands of strangers and the material will continue to exist long after the act has occurred. The following is a list of common effects of child pornography:
- Overwhelming feelings of guilt, shame, worthlessness, and embarrassment that may escalate with age
- Physical and emotional pain
- Psychological distress
- Interference with and difficulty in child development (both physically and emotionally)
- Children are more likely to become victims of future sexual violence
- Greater risk of sexual diseases
- Greater risk of unplanned pregnancies at a young age
- Difficulty with relationships
The Charter of Rights and Freedoms guarantees the freedom of speech, thought and expression. However, this freedom does not permit harming others. Pornography is supposed to involve willing individuals and is not generally seen as having harmful effects on the participants. Child pornography causes harm; children are neither mentally nor physically prepared for the acts that they are put through and the side effects are lifelong and devastating.
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Criminal Code of Canada
Cybertip. “Cleanfeed Canada, FAQs.” http://www.cybertip.ca/app/en/cleanfeed
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