Criminal Law

By Edward Chen

30.01.19

Animated and text-based child pornography

On 25 January 2019, an assistant director within the Australian Signals Directorate, an agency responsible for Australia’s cyber security, was sentenced to 13 months imprisonment for using his work computer to store animated child pornography and “text-based child pornography”. His sentence was, however, suspended meaning he doesn’t have to actually serve any time in jail if be behaves himself for a period of time.

Child pornography is never a savoury subject. Most people in our society recognise it’s not a victimless crime. On the contrary, the victims are some of the most vulnerable in our society and they must endure the humiliation and emotional torment for the rest of their life, let alone the physical trauma.

However, there is often a mixed response when people find out the punishment for accessing, publishing and transmitting animated child pornography, or text-based child pornography, is the same as if a real child was involved. That is, a maximum penalty of 15 years jail.

This is because there is no separate crime when it comes to animated or text-based child pornography. “Child pornography” in the Criminal Code of the Commonwealth is broadly defined as any “material” that depicts persons under 18, or who appear to be under 18, engaging in sexual activity. “Material” encapsulates anything capable of constituting a communication, which the courts have found to include, drawings of children, animations of children, and books or scripts where children described as behaving sexually.

In other words, in the eyes of the law, animated children, cartoon children or children who exist only in the mind of a reader are just as real as living children for the purposes of establishing an offence under the Criminal Code of the Commonwealth.

This state of the law gives rise to a number of interesting issues:

a) In the absence of any identifiable victim, should the maximum penalty for these offences be less than if a real child were involved?

b) Should there be a criminal offence at all for such offences?

c) If we perceive the viewing of animated and text-based child pornography as serious criminal offences, how do we reconcile our attitude towards other countries that do not categorise such conduct as illegal?

Japan is an example of a developed country where, on one view, an entire government is condoning acts that normalises the sexual abuse of children. However, the domestic sale of comics depicting child sexual activity is widespread, implying a significant percentage of the population would be, in an Australian’s view, “criminal”. Is it therefore a matter where reasonable minds can differ?

d) How can we reconcile these laws with the importance we place on the freedom of expression?

It is currently not illegal for one to think about child sexual activity. However, the moment such thoughts are reduced to writing, the author becomes the creator of child pornography. You would need to persuade a jury there is a “public benefit” to your work of art in order to avoid a conviction.

There are those who say a strong stance should be taken and these “thought-crimes” should be punished the moment pen touches paper. However, it’s important to bear in mind we do not treat other serious crimes in a similar fashion, such as fantasies of murder.

While these questions aren’t the best topics for dinner talk, they may provoke some thoughts about deeper legal issues such as the role of the criminal justice system in balancing rehabilitation with deterrence.

The team at Aulich understands there are people from all walks of life that require strong legal representation – whatever serious criminal matter you may be charged with. If you are charged with child pornography offences, please contact us to discuss your options in a compassionate and non-judgmental environment.