Over recent years we have seen the definition of 'child pornography' stretched beyond all credibility. The 1978 Protection of Children Act made the simple possession of indecent images illegal, where to be indecent the image had to:
1. Depict an actual person younger than the age of consent (then, and still, 16 years of age)
2. Depict them in a sexual context (that is, the material was produced for the purposes of arousal and is thus 'pornographic')
This was a simple and clear definition. You could easily know what was legal and what was not. Any person old enough to consent to sex could be photographed without danger of being caught by the Act. Simple child nudity of the sort that might appear in holiday photos or family photos of very young children was excluded.
The Act did precisely what it set out to do – protected children. By allowing police to arrest individuals for possession of actual child abuse images, it made it possible for them to target those who produced and supported the production of such material.
Since the 1978 Act, we have had a slew of amendments and new legislation that:
1. Created the notion of the pseudo-image. This is an image which is doctored in some way to make it appear to be an indecent image of a child when in fact it wasn't.
2. Criminialised material where the person depicted looks like (or could be interpreted to look like) a child. An image of a 20-something porn star dressed in a schoolgirl outfit and acting young could be considered child pornography depending on the context.
3. Changed the definition of 'child' to include persons over the age of consent but under 18, thus creating a legal anomaly where a person may legally consent to sex but cannot be photographed doing so, and retrospectively criminalising previously legal material including back-copies of newspapers and top-shelf magazines that featured 16 and 17-year old models.
4. Changed the interpretation of 'indecent' to include simple nudity or even 'provocative poses' by fully-clothed subjects, thus making innocent family pictures potential 'child pornography'.
5. Allowed material depicting imaginary characters – computer-generated or cartoon – who were (or might be construed to be) underage to be prosecuted as 'child pornography'.
6. Most recently, attempting to make written material simply describing any of the above equivalent to 'child pornography'.
Even the most cursory consideration of these changes will reveal that the clear intent of these changes to the law is to outlaw any material which pedophiles – or 'potential' pedophiles – might possibly find arousing. If you follow this route to its logical conclusion you ought to make any photograph or description of a child illegal, and lock all children away from public view lest someone become aroused at the sight of them.
This single-minded witch-hunting of the unseen but ever-threatening pedo-under-the-bed does not make children safer. Indeed, most of the changes have been made to permit the prosecution of individuals who have not harmed children at all. Its purpose is clear – it is thoughtcrime legislation, designed to satisy the baying calls of the gutter press and to keep CEOP and similar agencies in business.
It is now effectively impossible to know if a particular image is illegal or not. There is no safe standard. A picture of a fully-clothed adult may be child porn if they happen to be dressed and posed in a particular way. Offences being now largely based on 'context' mean that until it goes before a jury, you cannot be sure you're safe. People are being sent to jail as pedophiles for 'offences' which, only a few years ago, would have been laughable and which most certainly have not involved any actual children coming to harm.
My proposal is simple. Repeal and amend the various acts as necessary to return the definition of child pornography to that of the 1978 Protection of Children Act, and let the police get on with the business of actually protecting children and catching child abusers.
Why does this idea matter?
Our laws should be reasonable. They should seek to prevent or redress problems, to protect people, and to prevent abuse by the State.
Specifically, the laws on child pornography should seek to protect children from abuse. That is their purpose, and it's a purpose that few could disagree with. The illiberal baggage that has been added to them over the years simply obscures this purpose and has whipped up a media-driven and state- hysteria which harms and affects entirely innocent people.
Far too often, law is made to 'make a point', to show that the government of the day is tough on crime, or responsive to the plaintive appeals of whichever minority viewpoint the press is currently championing. The Extreme Porn clauses in the Coroners and Justice Act are a classic example – brought in because newspapers championed the pleading of a mother whose daughter had been murdered by a man who happened to like looking at relatively hardcore (but entirely legal) porn. While I have every sympathy for a mother who loses her daughter, she can hardly be considered to be an unbiased actor. Her clamouring for a change in the law should be put into perspective alongside the harm that change is likely to do to society as a whole. But since the official view is that porn of all sorts is 'a bit icky', the government of the day knew it could introduce such laws without anyone whose opinion it had to care about – the press, those who fund the political parties, the elite – kicking up a fuss.
Previous governments have forgotten that the law is an instrument to be used only as a last resort, and that when it is used it must be used proportionately and wisely.
Making this change would show that the new government respects these principles and is willing to do something that would be unpopular with the vested interests – and make no mistake, a change of this sort would have the newspapers screaming about 'Freedom for Pedos and Perverts' in no time at all – because it is the right thing to do, and because it takes the notion of civil liberties seriously rather than just paying lip-service to them as an idea.
More importantly, making this change would ensure that the police could spend their time finding and arresting those who actually abuse children and profit directly from that abuse, rather than wasting it scouring the internet for people who have vaguely naughty pictures of Lisa Simpson on their hard drives.