AUTHORS: AASHNA ARORA & AKSHAY NAIR
AMITY LAW SCHOOL, NOIDA
LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR PROTECTION OF CHILDREN
Being exposed to a world dominated by global technological advancements, children have always been on the receiving end of its negative impact. These rampant advancements have led to a rise in the criminal activities in the cyberspace. One of the most heinous crimes that are directly linked to the contemporary digital age is that of the Child Pornography. Child pornography is a sexual representation of obscene images of a minor under the age of 18. Article 9 of the Convention On Cybercrime, 2001 describes Child Pornography as “pornographic material that visually depicts: a minor engaged in sexually explicit conduct and a person appearing to be a minor engaged in a sexually explicit conduct” Also known as the Budapest Convention, its the first international treaty seeking to address cybercrimes by harmonizing national laws and improving cooperation amongst nations. Along with having legally strong principles in every country, there are also crucial International Conventions that makes Anti- Child Pornograhy laws that are legally binding in nature. The UNITED NATIONS CONVENTIONS ON THE RIGHTS OF THE CHILD, 1989, is the first ever inclusive and legally binding document against sexual exploitation of children and their rights. Article 34 of the Convention provides the formulation of national, bilateral and multilateral measures to prevent; “(a) inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; (c) the exploitative use of children in pornographic performances and materials”. Article 39 of the Convention requires the state to provide “recovery” and “reintegration” to children who’ve been victims of sexual exploitation. On May 25, 2000 the General Assembly of the UN adopted Optional Protocol on the Role of Children, Child Prostitution and Child Pornography.
KEYWORDS: CHILD PORNOGRAPHY, UNITED NATIONS CONVENTIONS ON THE RIGHTS OF THE CHILD, 1989, OPTIONAL PROTOCOL, 2000, BUDAPEST CONVENTION, 2001
With the rise of internet, our lives have changed irreversibly. One of the most indelible impacts of the internet has been that of a widespread circulation of technology and the cons that come handy with it. Its easy accessibility and availability has enabled the porn industry to grow and flourish. The dissemination of child pornography is a burning issue which is directly linked to the mental health of these young minds. Through this paper we attempt to bring to the fore how internet has made child pornography a readily available, cheap ‘product’ leading to a forever alteration of the lives of these innocent toddlers. According to the Consumer Stats from The National Centre on Sexual Exploitation, Child exploitation known as Child porn is one of the fastest growing online businesses. Not only this, 6,24000 + child porn trades have been discovered online in the U.S. According to the Association of sites advocating child protection, between 2005 and 2009, child porn was hosted on servers located in 50 odd states. The Emotional quotient of children are not highly equipped to deal with the detrimental mental effects of the porn industry. What is required is a uniform global structure for identifying, measuring, and prosecuting online child pornography and its corollary must be adopted as a standard of international law.’ The second half of the paper will focus upon the role of international law in combating child pornography while looking out for the loopholes and recommending a uniform global structure as mentioned above. The Internet has changed all that. The Supreme Court, in explaining why child pornography does not merit First Amendment protection, recognized the importance of limiting its distribution. In New York v. Ferber, 458 U.S. 747, 756-57, 759 (1982) it was said that the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively curtailed. The international human rights movement focuses on the need to recognize that every individual holds a central place in the society. The movement further aims to establish the crucial role a society and family plays in establishing the role of each individual. Only 45 countries have a legislation in place to combat child pornography. The circulation of obscene images of these young children entraps them in a circle so vicious that there’s no coming back.
The following is a relatively small piece of factual information related to child abuse
According to UNICEF, 1 out of 3 girls and 1 out of 5 boys are bound to be sexually abused before they reach the age of 18. Most of the victims and their families choose not to report cases of child sexual abuse due to their lack of trust in the authorities as well as out of the fear of social stigma that arises with it. In a starking revelation, 90% of these children who are sexually abused know their offenders. The term child sexual abuse can be understood In terms of any sexual act carried out between an adult and a minor or two minors where one exerts power over the other or forcing, coercing or persuading a child to engage in any kind of sexual act or such acts which do not involve any sort of physical contact such as exhibitionism, exposure to pornography, voyeurism and indulging into sexual communication via phone or internet. Not only this, 1 perpetrator on 4 is under the age of 18. The paedophilic offenders starts offending at a very early age and young child victims are nothing but a mere indicator of a young offender. People who have been prey to child abuse show a higher risk of suicide by the virtue of being plagued by depression. This mental illnesses can pose a major disruption in the normal functioning of any person. Thus, Interpol works to identify both the victims as well as perpetrators of child pornography. Interpol has been recognising at least 7 victims on an average starting from 2015.
These facts state the plight of the victims reflects upon the sick mentality of the offenders. The problem associated with children and cybercrime has its roots deep into easy accessibility and inexpensive availability of the internet. This easy accessibility encourages the perpetrators thereby removing the risk of public disclosure and an elimination of tangible evidence. Its important to understand that the growth of child pornography is directly proportional to the demand for sexual exploitation. Different countries have an altogether different understanding of the term child pornography and there legal frameworks are equally varied. However many young countries with a not very rigid social and historical background have adopted nascent methods to arrive at an intersection of domestic and International laws respectively. Many countries fail to adopt a cognizable standard of measurement thereby making it cumbersome to tackle issues of child pornography. The criteria for being recognised as an adult also differs from one country to another. For some countries it might be 18 for some it might be 21. In a few countries adulthood sets in on turning 13. Article 1 of the Convention on the rights of the child defines a child as a human being under the age of eighteen. However various countries can choose to differ on the points of the legal driving age, drinking age, the legal age to get married so and so forth. These different parameters restricts the issue to a definitional scope thereby leaving out crucial issues that have to be dealt with. It is poignant to have an understanding of the difference between the Actual age and adulthood. The gap that lies between these two have to be dealt with in a proper manner in order to grasp the underlined difference. Many a times children despite being of a certain age fail to comprehend the legal ramifications that comes with the performance of illicit behaviour. We also need to take into account what consent and the consent giving power implies. The United Nations provides that no child under the age of thirteen is capable enough to give his or her consent implying the lack of understanding associated with their respective age. It was established in a United Stated Supreme court case “MILLER V ALBAMA” that a life imprisonment without the provision of parole is absolutely prohibited for juvenile homicide offenders implying that a child of even eighteen years of age is not fully competent to provide or fully understand the meaning of consent.
According to a recent issue of the NEW YORK TIMES, more than 45 million photos and videos of children being sexually exploited and abused were in circulation which was more than double the amount of the previous year. Most of these images were of children belonging to the age group of 3-4 years respectively highlighting the unfathomable demand of a growing child pornography industry. Lack of proper administration and management led to a crackdown of federal responses The National Center for Missing and Exploited Children, suggested that future advancements in machine learning might be the only way to get hands on to these criminals. The year 1998 witnessed over 3000 reports of child abuse. Within a span of a decade, the number reached a lakh. It was in 2014 when the number surpassed a million for the first time ever. Last year the numbers went up as high as 18.4 million more than one third of the total ever reported.The new York times reviewed as many as 10,000 police reports and documents, followed by the software teststo assess the availability of the imagery through search engines and many law makers, company detectives were employed. The reports included talks with a convicted paedophile who concealed his identity using encryption software and also operates a site that has furnished more than 17000 of such images. Not only this, these offenders encrypt their data with a strong password with as many as 41 characters so that cracking down becomes a task. In many interviews, victims give a firsthand account of the heart wrenching details regarding the aftermath that followed even after years of victimisation. The most astounding reality being slapped on our faces is that of the normalisation. These victims have been told that its “normal”.Many of the survivors and their families said their understanding of humanity had been forever altered by such crimes themselves and their online demand for images. A woman who filmed while being sexually abused by her own father didn’t know how to deal with the trauma that follows the abuse. She went on to say that one tries hard to not let such things define them but the recirculation of the same material keeps the wounds fresh.
The New York Times reported that most of the images found in circulation last year had its roots in in United States because of the crucial role played by the Silicon valley in its origination and circulation. The child pornographic material has only managed to multiply at an alarming rate due to phone cameras, and cloud storage. These images have managed to find a place on diverse platforms such facebook messenger. In a more recently developed disturbing trend, various groups of these offenders are using encrypted technologies and dark web to circulate the images of children while being sexually abused. The victims of child pornography are forced to hold up some kind of signs in these images just to show that these pictures are current. Detectives like Paula Meares talks about how disturbing it gets to categorize these images by age. It’s a horrifying reality but true. The role played by the ‘Tech companies” have more or less been on the receiving end in dealing with the issue. There have been initiations on the part of these to help downsize the number. However, at the same time when these Tech companies corporate at an upfront level, encryption and anonymization can carve a digital hideout for these possible perpetrators. For instance facebook’s encryption policy of 2018 was responsible for 12 million out of 18.4 million worldwide child sexual abuse reports. According to National Centre for missing and exploited children, 45 million of such obscene child pornographic photos and videos were in widespread circulation. These facts might just be facts for the fortunate lot, but the brunt of it is faced by all of us collectively.
In an interview, Alicia Kozakiewicz, who was abducted by a man at the age of 13 talks about how disheartening it was to see an absence of a solid structure. She goes on to recall the horrific day when she was raped and beaten up while being filmed. The National Centre for Missing and Exploited Children, reviews reports it receives and then distributes them to federal, state and local law enforcement agencies, as well as international partners. The major issue is that of the non profit centre who has been relying upon a 20 year old technology which fails to take into account the improvised ways of coming up with effective solutions. The videos found on a few systems were gruesome to say the least. One of them showed a woman forcing herself into the vagina of a toddler while hanging her upside down with her ankles tied. Another one showed a woman inserting an ice cube into the private parts of a little boy. These children we talk about here are young minds who are rendered powerless and helpless while being sexually abused. Susan Hennessey, a former lawyer at the National Security Agency talks about the offenders who disseminate child pornographic material are on the cutting edge of technology. These perpetrators manage to mask their locations by deploying heavy encrypting techniques which even makes it difficult to operate their hard drives. In a recent case, an offender filmed himself drugging the neighbourhood kids with intoxicated juices and later on filmed himself sexually abusing them in an unconscious state, said Special Agent Flint Waters, a criminal investigator for the State of Wyoming. What is even more shocking is to see these offenders without an ounce of shame for their conduct. Many perpetrators described such indulgences as “adventurous and exciting”.
ROLE OF INTERNATIONAL LAW:
1. UNITED NATIONS CONVENTIONS ON THE RIGHTS OF THE CHILD,1989:
The United Nations Convention on the Rights of the Child also known as UNCRC serves as the foundation of international covenants respecting the various human rights of children as a matter of international law. The UNCRC has been ratified by 193 countries. Although the United States has signed the treaty yet it remains one of only a handful of countries that has not yet ratified the UNCRC. One of the major criticisms of the UNCRC is that despite dealing with child pornography it failed to recognise this issue during its formation back in the 1989. Some of the provisions of the convention could be seen to relate to the issue of Internet child pornography, however the main purpose of the convention is to serve different areas related to children’s rights and protection. The convention highlights the importance of a healthy and a happy environment for growing up children. Even though a large number of countries do not recognize eighteen as the age of adulthood, Article 1 of the UNCRC defines a child as a person below the age of eighteen. However this definition has limited the understanding of the term child thereby leading to discord as it fails to recognize the countries that do not interpret eighteen as the accepted age of adulthood. The convention enforcement apparatus has been called out for serious criticism. The committee has been criticised on the grounds of ambiguity for the absence of national criminal legislation as well as a failure to recognise 18 as the legal consenting age respectively. Moreover the committee lacks the enforcement mechanism and is restricted to only giving recommendations. Despite these criticisms, the UNCRC manages to form an important International convention in combating child pornography.
2. Optional Protocol on the Sale of Children, Child Prostitution and Child pornography,2000
The Convention includes an Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. In 2000, the United Nations adopted the Optional Protocol to the UNCRC keeping in mind the possible dangers to the children that cropped up with the rise of the internet. The Optional Protocol specifically deals with the issue of child pornography as one of its crucial ones. The protocol was concerned about the growing availability of child pornography on the Internet as well as the other evolving technologies. The International Conference on Combatting Child Pornography on the Internet (Vienna, 1999) called for the worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography, while stressing upon the need for utmost cooperation amongst the Governments and the Internet industry per se. The Optional Protocol is the leading universal treaty which specifically addresses the sexual exploitation of children. The optional protocol is limited in its reach as well its approach. Regardless of that it manages to formulate a strong and an effective blueprint for combating child pornography and other issues related to it. The Optional Protocol contains a provision for extra-territorial enforcement of child sexual offenses. This provision provides us with an assurance of an effective enforcement machinery. The Protocol effectively defines child pornography as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”
3.Council of Europe Convention on Cybercrime’ aka The Budapest Convention 2001
The Council of Europe Convention on Cybercrime also known as the Budapest Convention is one of the foremost conventions that deals with child abuse, internet fraud and illegality. The Convention has a more modern approach with an universal application to both the law enforcement mechanism and the judicial officers at the same time respectively. Article 9 of the convention focusses upon theoffences related to child pornography. The detailed understanding of the issue of child pornography as well as its understandable lingual standards makes the convention widely acceptable across the countries. The convention takes into its ambit the accepted definitions of child pornography while at the same time providing adequate encouragement to various nation-states to include them into their statutory provisions. The Convention is also notable for its detailed categorization of Internet child pornography and its use of unambiguous terminology. However this convention stands testimony to various critics. One of the major criticisms faced by this convention is its inability to inculcate technological advancements. Various critics see jurisdictional problems associated with the convention in the sense that it does not include computer screen related offenses. Despite these concerns, the Convention on Cybercrime should not be viewed as a failure in any sense. The convention however stands apart from the other conventions because it has managed to develop an instrument for managing and highlighting the issues dealing with the criminalisation of child pornography. The Convention is a reflection of various other nation states which believe that child pornography is a serious crime.
4. Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse’
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007) despite including some of the provisions of Convention on cybercrime is viewed as being distinct from other conventions. The convention addresses child pornography as a form of child abuse. It also covers sexual tourism, an aspect which has been absent from other conventions. Even though the convention aimed at harmonizing the best practices of other member states yet it failed to address the victim resources in the wake of child sexual exploitation. It fails to acknowledge the basic victim needs of food, education and housing. Another drawback of this convention was its lack of global adoption. It has only been adopted by the European nations so far. At last it also fails to criminalise the viewing of child pornography without downloading it. This issue has however gained momentum in the United States. In New York v Kent, the state appellate court established that evidence of defendant’s temporary internet files can be used for conviction if any child pornographic material is found on it. This would lead to the formation of a determining factor whether viewing of child porn would be categorised as a criminal offence or not.
INDIA’S STAND ON DEALING WITH CHILD ABUSE
Members of the LokSabha recently passed a bill providing for death penalty for aggravated sexual assault on children. The landmark legislation for child rights, the Protection of children from sexual offences (Amendment) bill, 2019 was passed by a voice vote. The bill clearly defines and makes child pornography a punishable offense.
The stand taken by India in combating child pornography has set a benchmark in the Country’s progression in the right direction. This was a much awaited move on the part of the country to enable it to deal with a heinous crime like that of child pornography.
The issue of Child pornography is not only a legal issue but is also an issue of morality. What’s categorised as morally correct for one might not fit into someone else’s definition of morals and ethics. However when it comes to issues like child abuse we need to transcend beyond its legality and unlearn what we’ve learnt so far. Children, who do not have an understanding of the most basic things around them are being pushed into this dark world from where there is no coming back. There is no denying that technological advancements are often associated with growth but its time we sit back and comprehend the costs at which this growth comes. When a child becomes prey to child abuse he or she is rendered helpless for the rest of his or her life. Its crucial to understand that once these images and videos are out on the internet it keeps growing and multiplying, thereby creating a disruption in the overall growth of these children. An offence like that of child pornography also reflects upon the mental stability of these perpetrators. It not only is a reflection of a criminal mind but also that of a sick mind that has lost its power to comprehend, judge and decide. A staff report was prepared for the use of the committee on energy and commerce in the 109th Congress session back in 2007. The report spoke about the findings of an year which highlighted the growth of sexual online offenses against children. It said that at any given time at least 50,000 predators were on a lookout for children. Commercial child pornography had been making millions and billions of dollars of revenue within a span of an year. What is even more disturbing is that these images were of children going through gruesome acts of abuse including rape and torture. Such reports highlights not only the plight of these children but also acts as an indicator of a collective failure that we as a world community has brought our way. Lack of understanding and stigmatisation of such issues has acted as a hindrance in arriving at definite, long term solutions. Despite having various domestic and international conventions in place, we as a world community have taken a setback in chalking out conclusive provisions for the same. What is needed is an umbrella like structure that is more inclusive and less dogmatic in its approach. This can only be initiated if we keep our approach a little more broad while addressing the issue. Many a time the victims and their respective families fail to seek the correct redressal for their trauma. The need of the hour is to come up with a solidified redressal mechanism, involving global participation and cooperation respectively. It is important to look at this issue with a great deal of empathy to be able to arrive at humane solutions. Children deploy a number of techniques to disclose if they’ve undergone any sort of sexual abuse. These techniques includes direct or ambiguous verbal statements and non-verbal disclosure can be in the form of writing letters, re-enacting abuse type situations or drawing pictures for adults. “Physical or bodily signs of child sexual abuse can include stomach aches, adverse reactions to yoghurt or milk (due to resemblance to semen), or soreness in the genitals. Emotional signs can include fear, anxiety, and sadness, acting out without immediate cause, mood swings and reluctance to visit the perpetrator. Behavioural signs will include sexualised playing with dolls, excessive masturbation, or drawing sexual acts. One important characteristic of disclosure is that it’s never done immediately after the incident has taken place. Due to a high sense of stigmatization children act extremely hesitant in letting it out. Disclosure is marked by a series of instances clubbed together rather than one. In a situation, when the child finally discloses abuse, and a report is filed under the POCSO Act, 2012 more information is required to be gathered so that the child’s statement may be recorded. Such a person must have knowledge of the dynamics and the consequences of child sexual abuse, an ability to establish rapport with children and adolescents, and a capacity to maintain objectivity in the assessment process. In the case of a child who was disabled/ physically handicapped prior to the abuse, the expert would also need to have specialised knowledge of working with children with that particular type of disability, e.g. visual impairment, etc. in the end, I’d like to conclude my paper by quoting Rousseau “man is born free but everywhere he is in chains”