Barely (Il)legal: The Problematic Definition of "Child" Pornography
Speaker: Dr Jonathan Clough, Monash University
The advent of the Internet and digital technology has led to a staggering increase in the prosecution of child pornography and child exploitation offences. Central to these offences is the definition of ‘child’. In a number of jurisdictions, the definition of child for these purposes is under 18, while the age of consent is 16. This has a number of consequences in the application of child exploitation laws to teenagers.
For example, while an adult may lawfully have a sexual relationship with a person over 16, the sending of explicit images within that relationship may fall foul of child pornography laws (including possible registration as a sex offender). The practice of ‘sexting’ amongst young people may also have serious legal consequences. Further difficulties arise in jurisdictions which punish images which ‘appear to be’ of a minor. This brings images of adults who appear to be under 18 within the scope of child pornography laws, and creates potential conflict with the film and publication classification regimes.
In addition, ‘grooming’ laws must protect minors from sexual harm, while still allowing for consensual sexual communications. This paper considers the legal consequences surrounding the meaning of ‘child’ in the context of child exploitation offences, and seeks to find an appropriate balance between protecting children from harm and legitimate sexual expression.
Dr Jonathan Clough is an Associate Professor and Director (International) in the Faculty of Law, Monash University, Australia. He teaches and researches in the areas of criminal law and evidence, with a particular focus on corporate criminal liability, judicial communication with jurors and electronic crime. Dr Clough teaches Cybercrime in the Monash LLM programme and is the author of Principles of Cybercrime (Cambridge University Press, 2010).
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