1. Legislation Flashcards
Summarise the history of Global Instruments
- 1990 UN Convention on the rights of a child (CRC)
- International Labour Organisation (ILO) Convention 1999 (elimination of the worst forms of child labour)
- Council of Europe (COE) Convention of Cybercrime 2001 (‘Budepest Convention’)
- Council of Europe (COE) Convention on The Protection Against Children against Sexual Exploitation and Sexual Abuse 2007 (‘Lanzarote Convention’)
- EU Council Decision to combat child pornography on the internet (2000)
- EU Framework Decision on combatting the sexual exploitation of children and child pornography 2004
- EU DIRECTIVE ON COMBATTING THE SEXUAL ABUSE AND SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY 2011 (replaced the above one from 2004).
What is the UN Convention on the rights of the child (CRC) 1990
CRC is the most universally accepted human rights
instrument - ratified by every country in the world except 2. Entered into force in September 1990. It outlines in 54 articles the human rights to be respected and protected for every child under 18.
In 2002 an optional protocol was added - Optional Protocol on the sale of children,
child prostitution and child pornography (2002)
Summarise what this optional protocol covered
Concern about Trafficking of Children
- Mentions the Internet
- Calls for Criminalisation of child pornography
» Possession? - Calls for cooperation between the Internet
Industry and the Governments. - Public Awareness
- International Cooperation
Article 2 of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 2002 defined Child Pornography. What is this definition?
Child Pornography means any representation, by whatever means, of a child engaged in real or stimulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
Summarise the key parts of the COE Convention on Cybercrime 2001 (‘Budepest Convention’)
This is a legally binding document criminalising certain conduct.
ARTICLE 9 - OFFENCES RELATING TO CHILD PORNOGRAPHY (via a computer system).
Covers:
producing, offering (or making available), distributing or transmitting, procuring* or possessing* child pornography.
Procuring or possessing may be exempted
How does the CoE Convention on Cybercrime 2001 define child pornography
It includes pornographic material that visually depicts:
a.) a minor engaged in sexually explicit conduct
b.) a person APPEARING to be a minir engaged in sexually explicit conduct*
c.) realistic images representing a minor engaged in sexually explicit conduct.*
*may be exempted
A MINOR = ANYONE UNDER THE AGE OF 18
Summarise the CoE Convention on the Protection of Children Against Sexual Exploitation & Abuse 2007 (‘Lanzerote’ Convention).
Article 3 deals with definitions (child = u18), (CSE and CSA mean anything covered by atricles 18 to 23 of this convention), (‘victim’ means any child subject to CSE or CSA).
Articles 4 - 9 deal with prevention (legislation, training, education for children, preventative intervention, general public, private sector, media & civil society.
Article 10 - national coordination and collaboration
Articles 11 - 14 deal with protective measures and assistance to victims, incl reporting of abuse and heplines
Articles 15 -17 deal with intervention
Articles 18 to 23 is the actual criminal law (see next slide)
Other articles cover aiding and abetting / attempt, jurisdiction, corporate liability, sanctions, aggravating circs, previous convictions and procedural law including victim interviews, investigations, recording convictions, monitoring of offenders, victim ID and investigation tactics likem covert investigations.
‘Lanzerote’ Convention (cont.) Summarise the behaviours that are criminalised with each article
Article 18 - sexual abuse (parties can decide the age it is prohibited from)
Article 19 - offences concerning child prostitution
Article 20 - offences concerning child pornography. Does address exemptions in relatin to simulated representions of children and when real children produce with consent their own images for their private use.
Article 21 - offences concerning the participation of children in pornographic performance
Article 22 - corruption of children
Article 23 - solicitation of children for sexual purpose.
What is the EU Directive on combating the sexual abuse and sexual
exploitation of children and child pornography 2011?
Legally Binding Directive
- Replaces Framework Decision 2004/68/JHA
- Acknowledges the UN CRC (convention on rights of the child) and EU Charter
- Lists CAM and use of ICT
Summarise the key features of the EU Directive 2011.
Definitions (Article 2): Provides definitions for terms like “child (U18),” “child pornography,” “sexual abuse,” and “sexual exploitation,” establishing a common understanding for the directive’s scope.
Criminal Offences (Articles 3-7): Outlines criminal offenses related to child sexual abuse and exploitation, including the production, distribution, and possession of child pornography, as well as solicitation of children for sexual purposes and grooming. Jurisdiction (Article 8): Specifies that member states must have jurisdiction over offenses committed within their territory, regardless of the nationality of the offender or victim. Sanctions (Article 9): Requires member states to establish effective, proportionate, and dissuasive criminal sanctions for the offenses outlined in the directive. Investigative Measures (Articles 10-17): Details measures for investigating offenses, including the ability to access data for criminal investigations and the protection of victims and witnesses. Prevention: Emphasizes the importance of prevention strategies, including awareness campaigns, education, and training for professionals working with children. International Cooperation : Calls for cooperation between member states and with third countries to combat child sexual abuse and exploitation effectively. Protection of Victims: Focuses on protecting the rights and well-being of child victims, including access to support services and protection during legal proceedings.
These articles collectively form a comprehensive framework for addressing the serious issues of child sexual abuse, exploitation, and child pornography within the European Union.
EU Directive 2011 (Cont.) Summarise the key definitions from article 2
- CHILD (u18)
- Age of sexual consent means the age below which (according to national law) it is prohibited to engage in sexual activity with a child.
- CHILD PORNOGRAPHY means:
Any material that VISUALLY depicts a child engaged in real or stimulated SEXUALLY EXPLICIT CONDUCT.
Any DEPICTION of the child’s SEXUAL ORGANS for primarily sexual purposes.
Any material that visually depicts a person APPEARING to be a child engaged in sexual conduct or the sexual organs of a person APPEARING to be a child primarily for sexual purposes.
And any material that depcits REALISTIC images of a child engaged in sexually explicit conduct or REALISTIC images of a child’s sexual organs primarily for sexual purposes. - CHILD PROSTITUTION - money or other form of remuneration or consideration is given or promised, to the child or to a 3rd party in exchange for sexual activity.
- ‘PORNOGRAPHIC PERFORMANCE’ - a live exhibition aimed at an audience, including by means of ICT, where a child is engaged in real or simulated sexually explicit conduct or the sexual organs of a child are displayed primarily for a sexual purpose.
EU Directive 2011 (Cont.) Summmarise the criminal offences (articles 3 to 7)
Article 3 - OFFENCES CONCERNING SEXUAL ABUSE.
- cause a child (not reached age of consent) to witness sexual activity
- cause a child (not reached age of consent) to witness sexual abuse
- sexual activity with a child (not reached age of consent)
- sexual activity with a child where the adult is in a position og trust / power / authority (any child U18)
- sexual activity with a child who is vulnerable due to mental or physical diability (any child u18)
- sexual activity where the child is forced, coerced or threatened
Article 4 - OFFENCES CONCERNING SEXUAL EXPLOITATION.
- causing or recruiting a child into a pornographic performance
- force or coerce a child into a pornographic performance
- knowingly watch a child pornographic performance
- cause or recruit a child into child prostitution
force or coerce a child into prostitution
- engage in sexual activity with a child where a recourse is made
Article 5 - OFFENCES CONCERNING CHILD PORNOGRAPHY.
- aquire or possess
- distribute, disseminate or transmit
- offer to supply, supplying or making available
- produce
- also gives discretion for exemption of it not being an offence if it is proudced soley for the producer by the producer for private use, no risk of dissemation. And if child appears over 18.
ARTICLE 6 - SOLICTITATION of CHILDREN FOR SEXUAL PURPOSES.
- an adult to propose via ICT to meet a child (under age of consent) for the purpose of engaging in sexual activity or producing child pornography, where the proposal was follwed by material acts.
- soliciting a child (who has not reached age of consent) to produce child pornography of themselves.
ARTICLE 7 covers aiding, abetting and attempting.
Summarise Article 15 of the EU Directive 2011 - covering investigation & prosecution
The directive states member states shall do the following:
- investigations are not dependent on a victim’s report and that prosecution for offences can still occur even if child is now over 18 (proportionate to seriousness of offence).
- take necessary measures to ensure that investigative investigative tools (such as those that are available for investigating all serious and organised crime) are available to them, including covert investigations such as communications interception, covert survellience incl bank and FI undercover investigations.
- to enable investigation units to identify the victims of these offences, in particular by analysing CSAM - auto or video.
UK Sexual Offences Act 2003 - Child sexual offences
A child is defined as any person under the age of 18 (this amended previous acts and definitions)
However these all relate to child under 16 and offender 18+.
S. 9 - Sexual activity with a child
S. 10 - Causing or inciting a child to engage in sexual activity
S. 11 - Engaging in sexual activity in the presence of a child
S. 12- Causing a child to watch a sexual act
S. 13 - Child sex offences committed by children or young persons
S. 14 - arrange or faciliatte a child sexual offence
S. 15 - meeting a child following sexual grooming
S. 15A sexual communicaion with a child
Sections 16 to 24 cover specifically abuse of position of trust
30 to 44 cover mental disorders (not nec children).
CSE:
Sexual exploitation of children
- Paying for sexual services of a child
48. Causing or inciting sexual exploitation of a child 49.Controlling a child in relation to sexual exploitation 50. Arranging or facilitating sexual exploitation of a child
Possession of CSAM UK
Indecent Images of Children– The Offences
The two main offence creating provisions are:
Section 1 of the Protection of Children Act 1978 (covers making, permit to make or take, distribution, showing and advertisement of such indecent photographs.) as well as possession. Child is under 18.
Section 160 of the Criminal Justice Act 1988 (CJA 1988) (Covers Possession) only. 3 defences: legitimate reason. Had not seen (& no cause to suspect). Photo was sent without request and not kept for unreasonable time.
Common Elements
Age of a child for both was amended by sexual offences act 2003 to be under 18
Both provisions create offences in respect of: indecent photographs or pseudo-photographs of A child.
Covers simulated images if the overall appearance is that of a child.
Images are moving or still images
Live-Streaming
In cases involving live-streaming, once an image or video has been viewed, there is no forensic trace left on the device used to view that image or video. A person who has merely viewed an image or video will not have retained any copy of it on their device. Nonetheless, it is submitted that they have ‘made’ an image by causing it to be displayed on that device. See further R v Smith and Jayson [2003] 1 Cr. App. R. 13, where the court accepted that causing an image to be displayed on a computer screen amounted to making it.
