On 6th April 2010, simple possession of non-photographic child pornography became a crime in England, Wales and Northern Ireland under section 62-68 of the Coroner and Justice Act 2009. Although possession of indecent photographs and pseudo-photographs (i.e. computer-generated images that resemble photographs) of children has long been prohibited in England and Wales, the prohibition of indecent non-photographic material has met some criticisms.
Before I continue, to avoid confusion, I’ll use the term “fictional child pornography” (FCP) to represent “non-photographic child pornography” or “indecent images of children”, which are the same thing. This is in accordance with the term used in a recent literature review by Al-Alosi. Likewise, I’ll use the term “real child pornography” (RCP) to represent “indecent photographs and pseudo-photographs”.
What makes the prohibition more controversial than its predecessors is that, by definition, non-photographic images involve no actual children in production and don’t look like real children. As a result, direct harm to actual children involved in its production, a main rationale for banning RCP, does not generally exist in this case since FCP (e.g. cartoons) can be created out of authors’ imagination; the fact that FCP may look distinct from reality leads to the suggestion that viewers of FCP may be able to distinguish between fantasy and reality or even use it as a “release” so as to suppress their impulse to abuse.
Neither legislators nor critics have sufficient empirical evidence to fully back up their argument. During consultation, the Home Office acknowledged that they were “not aware of any specific research carried out to ascertain whether there is a direct link between possession of these images and an increased risk of sexual offending against children”. Very recently, Al-Alosi confirmed that a paucity of empirical evidence exists, consistent with the outcome of my own literature search. My research will aim to fill this gap by using econometric methods to assess whether the criminalisation has achieved the intended reduction in child sexual abuse (CSA).
As the first part of my research, in this article I shall start by presenting an overview of rationales behind the criminalisation and the existing empirical evidence. Then I shall briefly suggest my source of data. Discussion about methodology will be presented in my next article.
2 Rationales behind the criminalisation
In the debate about criminalising the possession of FCP, three theories that could provide justification have been proposed: the Harm Principle, the Offence Principle and Legal Moralism. Because the latter two are concerned with public welfare instead of the incidence of CSA, they are beyond the scope of my research.
The Harm Principle suggests that if the possession of FCP causes more CSA, then the possession should be prohibited; various channels through which such causation might exist include grooming, desensitisation and incitement.
Grooming refers to “the process whereby potential child molesters build trust and an emotional connection with a child to facilitate sexual abuse”. As argued by the US Attorney General in the landmark case of Ashcroft v. Free Speech Coalition in 2002, FCP could be exploited by child molesters to lull children into believing that CSA is acceptable, especially given that FCP could be created in a way that makes fictional children involved seem “happy”.
Although grooming itself has been criminalised in England and Wales since 2017, when it became illegal for an adult to communicate with a person younger than 16 years with a sexual intent, given the time gap between the criminalisation of FCP and grooming, it’s possible that between 2010 and 2017, grooming utilising FCP still led to more CSA.
The argument of desensitisation suggests that FCP may instil the belief that CSA is normal into potential criminals, and the argument of incitement contends that FCP could arouse potential abusers’ “sexual appetite”. Both of them result in more CSA.
If the consumption of FCP causes more CSA, then reducing its consumption should also reduce CSA. Economics of crime provides a few theories regarding how such a reduction can be achieved through criminalisation. The theories can be applied to my topic as follows: firstly, those imprisoned for possessing FCP will be unable to commit CSA. Secondly, the risk of imprisonment and disreputation adds to the cost of possessing (and thus viewing) FCP. A rational consumer, aware of the criminalisation, will give up viewing FCP when cost outweighs benefit, which leads to less CSA (via the channel of grooming, desensitisation and incitement). Thirdly, there may be a norm among FCP viewers that perpetuates viewing. If some viewers stop viewing, the norm is undermined, which leads some other viewers to quit. Finally, the criminalisation may lead to a habit of not viewing FCP. After a habit is established, potential viewers will not do a benefit-cost analysis even if the benefit of viewing might actually outweigh cost for a potential criminal.
It should be noted that, since there’s a consensus that RCP is more damaging than FCP, a less severe penalty is introduced for possession of FCP than that of RCP so as not to incentivize FCP viewers to watch RCP once they breach the law.
As discussed earlier, FCP might also act as a substitute for reality, in which case consumption of FCP would reduce CSA and criminalisation of it would lead to the unintended consequence of increasing CSA. If neither effect exists or they offset each other, then criminalisation of possessing FCP should have no impact on CSA.
3 Existing empirical studies
To the best of my knowledge, current empirical studies relevant to the relationship between FCP and CSA focus on the characteristics of a small sample of individuals: they compare the traits of criminals and non-criminals to see if a particular action leads to more crime. Those studies yield inconclusive results; what’s more problematic is that they are not directly related to FCP, so extrapolation is required when using their results to discuss whether viewing FCP leads to CSA.
As discussed earlier, FCP might lead to more CSA through grooming. To the best of my knowledge, there haven’t been studies to confirm this suggestion.
One debate closely related to our topic is whether having sexual fantasy contributes to sexual abuse, because FCP is a manifestation of fantasy, and fantasy could result in desensitisation towards CSA as well as incite potential abusers. In their comprehensive literature review, Leitenberg and Henning concluded that “no evidence that sexual fantasies, by themselves, are either a sufficient or a necessary condition for committing a sexual offense.” This conclusion is corroborated by a later study involving control groups which found that both offenders and non-offenders had sexual fantasies involving children and "the number of sex offenders reporting deviant fantasies is too low” to establish a causal relationship. Meanwhile, there are also studies suggesting that fantasy does lead to sexual abuse. For example, Howitt reported that it was generally accepted by clinicians that fantasies would escalate and incentivize potential abusers to commit the crime.
Another related topic is whether viewing FCP leads to viewing RCP, which may be more likely to cause desensitisation and incitement. To the best of my knowledge, in line with Gillespie and Reeves, there haven’t been studies ascertaining the relationship between them. Moreover, whether viewing RCP leads to more CSA is also subject to question: RCP was usually found in child sexual abusers’ possession, but it has been argued that not many consumers of RCP have committed CSA and they show a low risk of committing CSA in future. While some surveys claimed that viewing RCP could act as a substitute for committing CSA, other surveys found that RCP did cause desensitisation and normalisation. Therefore, studies on the relationship between viewing RCP and committing CSA are also inconclusive.
Similarly, the studies on the relationship between viewing adult pornography and committing sexual abuse and between viewing materials involving violence and committing violence also produce contradictory conclusions. Furthermore, extrapolation from those relationships is likely to be more unreliable than that from the impact of fantasy and RCP on CSA.
4 My plan
In terms of data, I believe it is practical to find panel data on convictions of CSA. For instance, the Violence against Women and Girls Crime Report published by the CPS annually provide numbers of convictions of possession of FCP and CSA in England and Wales each year since 2009, and Statistics Canada provides similar statistics in Canada. These data render a panel data analysis achievable. I’ll explain my data and methodology in detail in my next article.