Debate regarding child pornography laws

Main article: Laws regarding child pornography

While laws criminalizing child sexual abuse now exist in all countries of the world,^[1][2] more diversity of views exists on questions like exactly how young those depicted in pornography should be allowed to be, whether the mere possession of child pornography should be a crime, or whether sentences for such possession should be modified.

Ninety-four of 187 Interpol member states had laws specifically addressing child pornography as of 2008, though importantly, this does not include nations that ban all pornography.^[3] Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute.^[3]

The United Nations Optional Protocol on the Rights of the Child requires states to outlaw the "producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes" of child pornography.^[4] The Council of Europe's Cybercrime Convention, and the EU Framework Decision that became active in 2006, require signatory or member states to criminalize all aspects of child pornography.^[5] Article 34 of the United Nations Convention on the Rights of the Child (UNCRC) stated that all signatories shall take appropriate measures to prevent the exploitative use of children in pornographic performances and materials.

Specific laws

In 1999, in the case of R. v. Sharpe, British Columbia's highest court struck down a law against possessing child pornography as unconstitutional.^[6] That opinion, issued by Justice Duncan Shaw, held, "There is no evidence that demonstrates a significant increase in the danger to children caused by pornography," and "A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography." ^[7] The Opposition in the Canadian Parliament considered invoking the notwithstanding clause to override the court's ruling.^[8] However, it was not necessary because the Canadian Supreme Court overturned the decision with several findings including that viewing such material makes it more likely that the viewer will abuse, that the existence of such materials further hurts the victims as they know of its existence and that the demand for such images encourages the abuse.^[9],

In 2007, Hungary considered legalizing pornography involving 14- to 17-year-olds for home use. In 2009, the Vermont legislature passed a bill legalizing the consensual exchange of graphic images between two people 13 to 18 years old.^[10][11]

In the United States, some federal judges have argued that the U.S. Sentencing Guidelines' recommended penalties for possessors of child pornography are too harsh.^[12] Judge Jack B. Weinstein criticizes that the mandatory sentence for possession of child pornography is often higher than the penalty for actually committing the act of child abuse. Furthermore, child pornography prosecution has led to dozens of suicides, some of them among the innocently accused. ^[13] The requirement that people convicted of merely possessing child pornography pay restitution has been criticized by some judges and law professors. This has been particularly controversial in cases involving millions of dollars of restitution, as in those pertaining to the Misty Series.^[14] But in 2010, the US Ninth Circuit Court of Appeals ruled that restitution directly to depicted minors was an appropriate penalty for possession of child pornography.^[15]

During the nomination process at the 2008 Libertarian National Convention, anarcho-capitalist and U.S. Presidential candidate Mary Ruwart came under fire for her comment in her 1998 book, Short answers to the tough questions, in which she stated her opposition not only to laws against possession of child pornography but even against its production, based on her belief that such laws actually encourage such behavior by increasing prices.^[16] Shane Cory, on behalf of the minarchist United States Libertarian Party in his role as executive director, issued a response saying, "We have an obligation to protect children from sexual exploitation and abuse, and we can do this by increasing communication between state and federal agencies to help combat this repulsive industry. While privacy rights should always be respected in the pursuit of child pornographers, more needs to be done to track down and prosecute the twisted individuals who exploit innocent children."^[17] Cory resigned after the party refused to vote on a resolution asking states to strongly enforce existing child porn laws.^[18]

Simple possession control in Japan

Japan and Russia are G8 nations that have not outlawed the simple possession of child pornography.^[19]

Today, Japanese law permits the simple possession of child pornographic images if there is no intention of selling or distributing them.^[20] The United States ambassador to Japan has stated that Japan's lack of laws restricting possession of child pornography has impeded international efforts in the investigation of child pornography rings.^[19] In June 2008, a bill proposing the ban on child pornography possession was submitted to the Japanese House of Representatives, where it was brought before the Diet in September.^[19]

In October 2007, a public opinion poll taken by the Japanese government showed that 86.5% of respondents favored regulation on art depicting child pornography, while 90.9% endorsed regulation of "harmful materials" on the Internet.^[21] Some harbor doubts about the opinion poll because of reports that the interview employs leading questions, and presents an inherently biased viewpoint.^[22] Non-government opinion polls indicate the opposite result, i.e. 10.35% in favor of punishing possession, and 47.71% against.^[23]

The Liberal Democratic Party and the New Komeito Party proposed to prohibit possession without distribution, but the Democratic Party of Japan presented a counterproposal to prohibit the taking over from anyone.^[24][25] The House of Representatives was dissolved on July 21, 2009, therefore the proposals to revise the law on the table were withdrawn.

During the general election of the House of Representatives in August 2009, politicians' opinions were divided, as shown in answers to open letters from a civilian organization.^[26]. People who opposite to simple possession control have wariness of false accusation.

References

1. ^ Levesque, Roger J. R. (1999). Sexual Abuse of Children: A Human Rights Perspective. Indiana University Press. pp. 1,5–6,176–180. "The world community recently has recognized every child's fundamental human right to protection from sexual maltreatment. This right has been expressed in recent declarations, conventions, and programs of action. Indeed, the right to protection from sexual maltreatment is now entrenched so strongly in international human rights law that no country can relinquish its obligation." 
2. ^ "United Nations Convention on the Rights of the Child". Office of the United Nations High Commissioner for Human Rights. 1989. http://www2.ohchr.org/english/law/crc.htm. "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse... States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials." 
3. ^ ^{a b} Child Pornography: Model Legislation & Global Review, 2008
4. ^ Article 3, (1)(c)
5. ^ Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd.. p. 11. ISBN 0754622975. 
6. ^ Canada Court Quashes Child-Porn Law, AP Online, 06-30-1999
7. ^ Top B.C. court strikes down child-porn law, The National Post, January 16, 1999
8. ^ Judicial Activism in R. v. Sharpe: An Administration or Perversion of Justice?, Rev. Current L. & L. Reform, 2000, pp. 14
9. ^ R. v. Sharpe (26 January 2001). 1 S.C.R. 45, 2001 SCC 2. Retrieved February 20, 2006.
10. ^ Hungary may legalize porn involving 14- to 17-year-olds for home use, USA Today, 2/19/2007
11. ^ Sexting Legislation 2009, National Conference of State Legislatures
12. ^ Federal judges argue for reduced sentences for child-porn convicts, The Denver Post, November 29, 2009
13. ^ Cruel child porn laws kill, "destroying lives unnecessarily” (Judge Jack B. Weinstein)
14. ^ John Schwartz (February 2, 2010), Child Pornography, and an Issue of Restitution, New York Times
15. ^ U.S. v. BAXTER
16. ^ Nathan Thornburgh (May 21, 2008), Can the Libertarians Go Mainstream?, Time
17. ^ Libertarians call for increased communication to combat child pornography
18. ^ McCain, Robert Stacy (May 23, 2008), Fear and Loathing in Denver, The American Spectator
19. ^ ^{a b c} Japan police crack down on 300 child porn cases Kubota, Yuko. Reuters. Accessed August 19, 2009
20. ^ ? Mainichi Daily News added on ?^{[dead link]}
21. ^ William Sparrow (2007-02-23). "Japan's Lolita merchants feel the heat". Asia Times. http://www.atimes.com/atimes/Front_Page/JB23Aa02.html. Retrieved 2008-05-16. 
22. ^ Comments on the news since October 2007 (in Japanese) and others.
23. ^ Yoron Chousa (public opinion research).net in 2008 (in Japanese)
24. ^ Proposal by the ruling parties (in Japanese)
25. ^ Democrat's counterproposal (in Japanese)
26. ^ The Movements for Internet Active Users (MIAU) Answers to Question 8 (in Japanese)