With the development of peer-to-peer networks and the dark web (a sub set of the deep web), child abuse activities are now mostly occurring in anonymous and encrypted environments largely out of reach of law enforcement bodies. Images are stored by the terabytes on personal hard drives and shared by the millions. For some people the anonymity seems to have ignited what may previously have been latent tendencies. (Understanding and Preventing Online Sexual Exploitation of Children, Edited by Ethel Quayle and Kurt M. Ribisl. 2012 Routledge. Chapter 11, ‘Situational prevention of child abuse in the new technologies’. Richard Wortley, Jill Dando Institute of Security and Crime Science, University College London. Introduction.) Fueling the problem and driving it to new almost unthinkable dimensions is the issue of desensitisation and destabilisation. (Heather Wood, Internet pornography and paedophilia, Psychoanalytic Psychotherapy, (2013) 27:4, 319-338)
With the internet as the catalyst, viewers are demanding more and more images and videos of abuse and torture of babies and children. New trends such as customised child pornography and child-rape are being created to order for the consumer. In addition, there is increasing demand for live-streaming of child abuse. Here the ‘customer’ makes a request, via the internet, to be able to watch a child being abused, in ‘real-time’. Hence the ‘customer’ can see the acts they want to see, being performed live. The ‘old supply and demand relationship has been turned on its head’. (Richard Wortley and Stephen Smallbone, Internet Child Pornography, Causes, Investigation and Prevention, 1st Edition, Kindle Edition, (2010), Praeger, 1.) The faster the Internet runs, the bigger the problem is becoming. The number of children being abused is growing exponentially and a proportionally low rate of children are being rescued.
A range of international Treaties and Protocols are in various stages of signature, ratification and accession. The United Nations Convention on the Rights of the Child (UNCRC) has 140 signatories and 196 parties. Of note however, the UNCRC has not been ratified by the United States of America. The United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography has 174 state parties, 9 countries that are signatories but not state parties and 15 countries that have taken no action. The consequence of 15 countries not signing the Protocol is that there are 15 countries where producers and distributors of child abuse materials might more readily evade the reach of international policing efforts.
More than 38 countries including Australia have established extraterritorial laws. This means for example that Australia can now prosecute an Australian citizen who commits a child sex trafficking crime whilst abroad.
Of the world’s 196 countries only 104 have legislation specifically addressing child pornography. That is, 92 countries, including Russia, have no legislation relating to child pornography. Given the internationalisation of the internet, these statistics suggest a bleak picture for law enforcement agencies.
A comparative review of Australian legislation relating to child pornography and child abuse materials reveals inconsistency between the jurisdictions. Impressively, Queensland has a comprehensive and modernised Criminal Code (ss 228A-D) including the crime of distributing information about avoiding detection (via dark web internet forums). This legislation is supplemented by an amended Act. The terms, Child Pornography, Child Abuse and Child Exploitation are used within the various state-based Australian legislation. As the terminology ‘Child Pornography’ has the potential connotation of sexualising the abuse of a child, a helpful first step towards harmonisation of Australian legislation could be to standardize the terminology used to describe the crime.
Moves are underway to encourage telecommunication companies (Telcos) and Internet Service Providers (ISPs) to proactively prevent, halt and report child sexual exploitation on their platforms. Current legislation requires carriers to ‘do their best to prevent … the commission of an offence’ (s313), a curiously non-specific requirement. Current mandatory reporting requirements are rarely enforced as the standard requires actual knowledge of the Child Abuse images. Citing privacy concerns and the technical challenges of finding images of Child Abuse, the Telcos and ISPs are ‘laying low’. It is therefore not uncommon to see Telcos and ISPs shifting their business to a jurisdiction that has not legislated mandatory reporting.
Telcos and ISPs could take a broader role in addressing the issue including the enforcement of ‘Take Down Notices’ and data retention. If airlines are made responsible for what they carry then perhaps internet carriers should be too. Internet hosting of child abuse materials is not covered under Australian state law, only by Commonwealth law. With the escalating prevalence of child abuse material hosted on the dark web, there is an argument that criminal prosecution could be enhanced if hosting were to be covered under all state laws too.
Given the explosion in internet-related child abuse and torture, the role of sentencing (Nigel Stone, ‘Internet Child Pornography,’ (2001) Probat. J., 48(1), 67-68.) as a matter of punishment, deterrence and community safety, is also worthy of review. While some argue that possession of child pornography causes relatively little harm, there are widely held views that possession of child pornography has a serious impact on the victim and should therefore be classified as a serious crime.
By way of example it is useful to consider the legislation relating to the maximum year’s imprisonment for knowingly possessing child pornography, and how it was applied in recent cases.
Maximum Penalty for Knowingly Possessing Child Abuse Material in Australia.
|State or Territory||Maximum Years Imprisonment|
|QLD||5 (s 228D) (child exploitation material)|
|NSW||5 (No 95 s 91H (3))|
|VIC||10 (s 70)|
|NT||10 (1 s 125B)|
|SA||5 (s 63 (a)) (basic offence 1st time)|
|WA||7 Notes (WA) s 220|
Taking Victoria as an example, the most recent review by the Sentencing Advisory Council (51) available to the writer on the primary charge of ‘knowingly possessing child pornography’ was completed in 2008 on data from the years 2004-2007. Forty-six per cent (46%) of 197 offenders received non-custodial sentences including community-based orders and fifteen per cent (15%) were given immediate custodial sentences.
More recently, the Herald Sun newspaper reported that a review of Sentencing Advisory Council data showed that 80 per cent (80%) of people jailed by magistrates for possessing child pornography in 2011-14 served less than 12 months’ jail. The higher courts sentenced fewer than one per cent (1%) of people convicted of possessing child pornography to more than three years’ jail.
Pressing factors include:
- The rapid escalation in the nature and extent of abuse being committed against babies, toddlers and children;
- Possession of child abuse material creates a demand;
- The link between possession and contact-offending;
- The urgent need to protect the children.
Therefore, there is a need for possessors of child abuse material:
- to be considered as complicit in the abuse and torture of children allowing for a maximum sentence of 20 years (s 15a).
- who are capable of rehabilitation to receive sentences closer to the maximum allowable sentences. Such sentences would act as both a deterrence and punishment.
- who seemingly have no prospect of rehabilitation be imprisoned for much longer periods of time.
Consideration could also be given to the enactment of minimum mandatory sentences and per image sentencing.
Tougher sentencing is not a panacea, however it is one part of the solution for this growing crime of child abuse.
It seems that law enforcement agencies are further hampered by the differences between jurisdictions in regard to extradition laws. Differences relate to definitions of child abuse material, thresholds for proof, legislation and sentencing provisions.
English man Richard Huckle used volunteering in Malaysia as a cover to rape and sexually abuse between 22 and 200 babies and children. He used a web site called the Love Zone, an encrypted network of paedophiles on the dark web that was protected by passwords and where users were anonymous. Members of the Love Zone were required to post graphic material involving the abuse of babies to remain on the website.
Australia’s Task Force Argos tracked down the website, arrested its administrator and took over running the site which led to identification of Huckle. Perhaps deterred by Malaysia’s capital punishment laws, there are allegations Australian and British police did not alert the Malaysian authorities. Huckle continued committing crimes during much of 2014, until he went to the U.K. in December to visit his family, at which time he was arrested. He has been sentenced to 22 life sentences in a U.K. prison. Malaysian authorities may apply to extradite him.
However, ratification of extradition treaties is not a panacea. Extradition treaties require reciprocity. Countries that do not have a death-penalty may be reluctant to sign an extradition treaty with a country that does.
The internationalisation of the dark-web certainly makes determining the right jurisdiction and timing for the prosecution of a crime challenging indeed.
Cross-jurisdictional crimes of such magnitude and horror require both an international and a national response.
Understanding why the United States of America has not yet ratified the United Nations Convention on the Rights of the Child, addressing their concerns and seeking their ratification would be a productive first step. America’s failure to ratify the Convention poses a range of troubling questions. Conversely, America’s ratification of the Convention could have far reaching positive impact on the wellbeing of children in America and around the world.
Effort needs to be made to find ways to encourage the 15 countries that have taken no action in respect to The United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, to become signatories.
Being able to prosecute citizens who commit crimes whilst abroad is another crucial piece in puzzle. Supporting additional countries to develop extraterritorial laws would help to strengthen the reach and power of law enforcement agencies.
As mentioned earlier, because of its reciprocal nature, extradition is a complex arrangement with far reaching, possibly unforeseen, consequences. As a minimum, countries which abide by the rule of law and which do not have the death penalty should be ensuring they have compatible extradition treaties.
International efforts to support and encourage the 92 countries without child abuse (child pornography) legislation, to develop suitable legislation, would be another productive step. Legislative reform that seeks to hold internet service providers and communication companies to account should also be undertaken.
Legislative reform at the international and national level is required too. There is a need for harmonisation of terminology describing the crime of online child abuse, the elements of crimes and the punishments. Here, Australian legislators could lead the way by getting on with the task of developing consistent legislation across the nation.
In parallel, organisations such as Victoria’s Sentencing Advisory Council within Australia and internationally could be encouraged to undertake comprehensive reviews and deliver recommendations on sentencing reforms that reflect the nature and impact of the crime, and the implications of keeping prisoners deemed likely of reoffending, incarcerated beyond the duration of a sentence.
Children’s Rights are Human Rights. Could Article 7 of the International Covenant on Civil and Political Rights be invoked to mount a case against a signatory-nation on the grounds that the nation was not upholding its international responsibility to prevent the torture or cruel, inhumane or degrading treatment of children?
What is clear is that failure to act will likely result in the demand for images of children being abused growing exponentially and the suffering of more babies and children.
In every image of child abuse, a child is hurting.
Judith Latta is a Juris Doctor candidate at RMIT University, Melbourne.