Does fake child porn do real children harm?

11-15-2007 Canada:

Suppose the following scenario:

Willy the webcam client: i’m so hard for u, bb, i wanna lose my virginity again, like when i was 16yo…

Crystal-Eyes the webcam girl: oh yeah, bb – how do you want it to go down?

Willy: tell me your name is suzy and you’re 14yo and you want me to pop your cherry

Crystal-Eyes: that sounds really hot but … although you don’t reasonably think I’m a minor and although this interaction is only through the internet, bb…according to subsection (a)(i) of section 163.1 of the Canadian Criminal Code, depicting myself as being under the age of 18 and engaging in, or depicting myself as engaging in, explicit sexual activity constitutes child pornography and I could be arrested… bb.

Willy: fuck - i just lost my boner

Ouch! While Willy’s boner goes down and Crystal-Eyes is legislated out of making an honest living, politicians can feel good about themselves for passing some of the strictest child porn laws in the world.

Since the 2002 passage of Bill C-15A, definitions of child porn have broadened. Naturally, it is an offense to depict actual minors in sexually explicit acts, but it is also an offense to show adults pretending to be minors engaging in sexually explicit activity. Now, visual representations of child porn include “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means.” These visual representations include depictions of real children, as well as computer images, sculptures, paintings, and drawings. This means a computer-generated image of a digital “child” engaged in sexually explicit activity constitutes child porn.

Additionally, a written story, play, or any textual representation can be considered child porn if it “counsels” or “advocates” sex with a minor. The act of possessing and accessing child porn is also an indictable offense. The bill does allow for defenses of “artistic merit,” and material that serves an “educational, scientific or medical purpose.”

But should Willy and Crystal-Eyes be denied their fantasy role-playing? The prevailing thought behind such sweeping definitions of child porn is that, even if actual children are not involved in the production, real children are harmed nonetheless. We assume this is true – but, surprisingly, there is little concrete evidence to support this.

In passing this law, Parliament was not required to establish objective scientific evidence that the possession of child porn causes harm to actual children, even if it does not depict actual minors. This thinking is fourfold. Possessing child porn is harmful because: 1) child pornography promotes cognitive distortions by normalizing child abuse in the minds of pedophiles; 2) it fuels fantasies that incite offenders to offend; 3) it is used for grooming and seducing victims; and 4) children are abused in the production of child pornography involving real children.

Child pornography that involves flesh-and-blood children is obviously wrong and causes harm in its production, dissemination, and consumption. But does it necessarily follow that fake, computer-generated images are also harmful, especially if only created for personal use? Does viewing fake child porn necessarily lead to pedophiliac acts?

Scientific fact is limited. According to a 2003 cbc.ca article, “Various studies have shown that between 35 - 50% of child porn collectors have a history of abusing children.” I assume that these studies are available, but I could not locate them. All I could find were contradictory reports from child-advocacy organizations. So I turned to Canadian court judgments to inform my assessment.

In the 1999 ruling on R. v. Sharpe, BC Supreme Court judge Shaw J.’s review of literature linking possession to harm found little scientific evidence to support such claims. When R. v. Sharpe was appealed before the Supreme Court of Canada in 2001, the issue of how much much proof is required to demonstrate harm was raised again. Is “scientific proof based on concrete evidence” necessary? Or is “a reasoned apprehension of harm” all that is required? In the end, the 2001 ruling agreed with Parliament’s reasoned apprehension. But the discussion in itself points to the difficult of finding reliable evidence to justify a limit on simulated child pornography.

This is hard for most people to accept. In the Toronto case of Michael Briere, who pled guilty to the 2003 first-degree murder of Holly Jones, the crown held that Briere was encouraged to act after viewing child pornography. The defendant agreed. Numerous child protection agencies support claims that the increase in internet child porn online has resulted in increases in child abuse.

However, where no conclusive evidence can be found, how can we criminalize fantasy and the creative expression of this fantasy, especially when it does not involve actual children and is intended for private use? The Charter of Rights and Freedoms clearly sets out protection for freedom of expression. This freedom includes popular thought, but also includes unpopular – even abhorrent and despicable – thought.

We can advocate for child safety online, but we should not make legislation until we can accurately gauge the harm done to society. I do not know whether viewing simulated child porn leads to abusing children. But I do know that we should not criminalize a person based on unclear and contradictory evidence. ..more.. by Brianna Hersey