When images matter: Internet child pornography, forms of observation and an ethics of the virtual

Abstract

The arrest of Pete Townshend, lead guitarist for The Who, for downloading and possessing Internet child pornography and the publicity surrounding the case provides an initial point of discussion concerning the emergence of an ethics of the image that is not predicated on the actual evidential status of that image but on more virtual forms of observation. The discussion in this article focuses on three substantive aspects of this event – legislation in the UK and the US, expert psychological discourse, and public discussion in the UK press – in order to present a particular and situated rendering of forms of virtual observation. The context to this discussion concerns the notion that digital imaging technology presages a need for new legislation, law enforcement and social analytical frameworks for understanding and tackling the production, distribution and consumption of images of child sexual abuse.

Keywords:

• Internet child pornography
• actual and virtual
• ethics
• forms of observation
• regulation
• digital imaging technology
• witnessing

Notes

1. The Greater Manchester Police has argued for the use of the phrase ‘images of child sexual abuse’, rather than ‘child pornography’, as the former is seen to be a more accurate denominator of the state of affairs depicted, given that the images ‘depict rape and other forms of child abuse’ (Carr 2003, p. 29). In the article I use both phrases as it is clear from the research that images which, in the context examined in this article, are viewed as ‘child pornography’ are not only images of abuse but also images of children in their daily activities that in other contexts could easily be viewed as innocuous and innocent (cf. Taylor et al. 2001).

2. As downloading Internet child pornography creates a copy of the image, it is interpreted as ‘making’ rather than simply possessing.

3. The Sexual Offences Act (2003) provides the defences of ‘legitimate reason’ accordingly: if it was necessary for a person ‘to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world’; or if the person was a member of the Security Service or GCHQ, and it was necessary for them to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service or GCHQ.

4. Although legislation curbing the production and distribution of child pornography was introduced in various European countries and in the US in the late 1970s and early 1980s, it was not until the early 1990s that possession of child pornography was made illegal. Possession of child pornography was made illegal in Norway in 1992, in Germany, France and Canada in 1993, Austria in 1994 and Denmark and Belgium in 1995. In the UK possession of child pornography was made illegal in 1988 (cf. Svedin & Back 1996).

5. The term ‘spectator’ carries the connotations of passivity, whereas the term ‘observer’, from its Latin etymology, refers not simply to perception, but also to the ‘following of rules’ (cf. Crary 1992). However, observare also means ‘to keep with’, ‘to watch over’, ‘to protect’, and ‘to examine’. In this sense, it carries some of the ambivalences that are encoded within the problematic of forms of ‘looking’ at indecent photographs of children.

6. The Court also stated that 2256 (8) (D) was overbroad and that it invited juries to assess material ‘in light of the manner in which it is promoted’: ‘[e]ven if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the speech is presented, not on what is depicted.’ Moreover, the Court argued that the CPPA: ‘bans possession of material pandered as child pornography by someone earlier in the distribution chain, as well as a sexually explicit film that contains no youthful actors but has been packaged to suggest a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled.’

7. In addition, the US Court of Appeal for the Ninth Circuit stated that a photographic image of a real event could not be treated the same as a computer-generated (or virtual) image of an event. It was argued that if both images were identical, then commercial organizations distributing child pornography would distribute virtual images, not real ones: ‘[i]f virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.’

8. See also section 160 of Criminal Justice Act, 1988.

9. The US, for example, defines a child, in this context, as under 18 years.

10. In some respects, the pseudo-photograph corresponds with Deleuze's understanding of the virtual, ‘The virtual is fully real in so far as it is virtual’ (Deleuze 1994, p. 208). The virtual is not opposed to the real but to the actual. Thus virtual crimes are not possible ones; they are real but not actualized. In other respects, though, what I am attempting to describe differs from Deleuze's account.

11. Although UK legislation is framed according to the ‘impression conveyed’, it gives no guidance on how to understand such an ‘impression’. I imagine that most child pornography traded and exchanged on the Internet is framed within the conventions of photographic and cinematic realism, but the 1994 Act makes no attempt to foreground or privilege particular aesthetic codifications over others (i.e. avant-garde or realist). The Act simply refers to the conveying of an impression of an act, not to the manner of that conveyance. It is for the individual court to consider whether the manner of conveyance (i.e. the aesthetic form taken) facilitates the conveyance of an impression of an act of abuse. Would a court decide that a virtual montage of child pornography conveyed an impression of child sexual abuse? Does animated child pornography constitute an offence?

12. Given the low numbers of actual children actually identified from Internet child pornographic images, there is a risk in presenting such an equivalence as grounds for legal argument. Notwithstanding this, there is also the question as to whether in construing such an equivalence there might be a misallocation of law enforcement resources. In this sense, although images of child sexual abuse should, if found, form part of an investigation of actual child sexual abuse, it might be more appropriate to treat Internet child pornography as a distinct and separate phenomenon. It is clearly related to child sexual abuse but it has its own singularity and specificity.

13. Unlike the realist photograph whose veridicality can be judged according to its correspondence to the referent, no such epistemological splitting occurs with the virtual image. The referent is in the image.

14. Each image of a child being sexually abused is an image of all children. The qualities of ‘childness’ in the image are constituted with reference to ‘childness’ beyond the particular child in the image (i.e. to a series of universal qualities, albeit ones that are open to social and historical change).

15. Nevertheless, the physical location of abuse is still to a large extent the home and the relation between abuser and abused is still to a large extent familial. In a very real sense, these technologies of abuse are ‘domestic’ technologies, despite being globalized.

16. A major concern of law enforcement agencies is the extent to which the latter form of commercial organization is growing and becoming dominant as a consequence of either lack of political will, inadequate legislation, poor policing or a combination of these factors within national jurisdictions (e.g. the US) and across particular regions of the globe (e.g. Southeast Asia and the former Soviet Union).

17. This typology of the abuser as collector contrasts with some popular conceptions of accidental downloading of Internet child pornography.

18. Taylor et al. make reference to the PICS (Platform for Internet Content Selection) and RSACi (Recreational Software Advisory Council) rating schemes and to a tripartite typology used by ‘investigative agencies’ that divide images into: (1) Indicative – material depicting clothed children, which suggests a sexual interest in children; (2) Indecent – material depicting naked children which suggests a sexual interest in children; (3) Obscene – material which depicts children in explicit sexual acts (Taylor et al. 2001, p. 98).

19. The Court of Appeal in November 2002 drew on a modified scheme from the Sentencing Advisory Panel that was itself based on the COPINE scale: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children or solo masturbation; (3) non-penetrative sexual activity involving an adult; (4) penetrative activity with an adult; (5) sadism or bestiality (quoted in Carr 2003, p. 14). The Court of Appeal also indicated that the degree of seriousness of the offence increased with regard to the proximity to, and responsibility for, the original abuse and that simple downloading constituted a lesser offence than wide-scale commercial distribution (Carr 2003, p. 14). However, unlike COPINE the Sentencing Advisory Panel clearly differentiates between ‘indecent photographs’ and ‘indecent pseudo-photographs’, such that possession of the latter constitutes a lesser offence punishable by a fine.

20. Taylor et al. do, somewhat contradictorily, distinguish between victimization through the use of images and actual abuse inasmuch as the former is seen to avoid ‘complex and lengthy engagement’ (Taylor et al. 2001, p. 100; see also O'Connell 2003).

21. Baudrillard argues that: ‘[t]hrough photography, it is perhaps the world itself that starts to act (qui passe à l'acte) and imposes its fiction. Photography brings the world into action (acts out the world, is the world's act) and the world steps into the photographic act (acts out photography, is photography's act)’ (2000).

22. It is important to imagine the child abuser not simply according to the stereotypical images of 1920s and 1930s public man (the school teacher, the scout leader, the sports coach and so on) or the image of the ‘bad’ father, uncle, grandfather of the 1980s, but to move beyond the critique of past good to an interrogation of present good men and women. As Nietzsche says: ‘That which an age feels to be evil is usually an untimely after-echo of that which was formerly felt to be good – the atavism of an older ideal’ (1966, p. 190).

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David Oswell

David Oswell lectures in sociology at Goldsmiths College, University of London. His publications include Television, Childhood and the Home (Oxford University Press, 2002), Culture Matters (Sage, 2005), The Sociology of Childhood (Cambridge University Press, forthcoming) and articles in various journals, including Screen, International Journal of Cultural Studies, Historical Journal of Film, Radio and Television and Convergence.