THE TRIVIALISATION OF THE ONLINE SEXUAL ABUSE AND EXPLOITATION OF CHILDREN BY SOUTH AFRICAN COURTS “International Fury as SA court

lets paedophile go scot-free.” The Budapest Report that Pretoria Court Magistrate Peet Johnson refused to view the evidence “despite the fact that they were graphic images allegedly showing hard-core pornography involving children as young as one-year-old” because “child pornography is child pornography” reveals a disturbing ignorance of the stark reality of child pornography..... Child abuse images have become more violent, more extreme and of younger children, including toddlers. Child pornographers keep pushing the boundaries. In a recent case in Ireland, a paedophile was found with images of an attempt to orally rape an infant child with its umbilical cord still attached, as well as pictures of a two-month baby girl in a nappy being raped1. More recently, a former US Army Major, Daniel Wolverton, was jailed after being found guilty of raping, and videotaping, an infant boy only three months old2. The recent case of Derek Maurice Hills, (reported in The Witness), raises the same questions and concerns discussed in 2007, following S vs Rawlinson Case No. 041/3019/05 and Bret Stevens and the State Case No. CA & R 54/07: that decisions of South African courts in cases involving child pornography continue to reflect an ongoing diminishing of the judiciary’s views about the serious effects, on the victims, their families and society itself, of the creation, production, distribution and possession of child abuse materials. Derek Maurice Hills, convicted on 24 counts of the possession of child pornography, was sentenced to five years imprisonment, suspended on condition that he serves three years under correctional supervision during which he must perform 288 hours of community service. In June 2005, Rawlinson was arrested on charges of the rape and indecent assault of a 12-year-old girl. At his trial, he admitted to accessing, viewing and downloading child pornography from the Internet. Rawlinson was convicted for unlawful possession of almost one thousand images of child pornography and was sentenced to 8 years imprisonment, with 5 years suspended for 5 years. Effectively, he faced a maximum of 3 years in prison. (Good behaviour will reduce that time.) But the children who were sexually abused and brutalised to satisfy his sexual perversion are not so lucky. It will take a lifetime, if at all, for them to recover from the emotional, psychological and physical trauma that was suffered upon them in the creation of child pornography. And it will, in all probability,
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See Child Porn: Underground, online and in your street WUSA9.com

take as long for the families of these children to recover from the trauma that they too suffer when their children are so abused. This would seem an exaggeration only to those who have had the good fortune neither to have had their children sexually abused and brutalised nor been exposed to child abuse images. On 5 April 2007, a newspaper report of a child pornography case confirmed public disquiet about the contribution of courts in South Africa to the trivialisation of one of the most despicable crimes against children and society. According to the report, two Newlands East men picked up a 15-year-old girl, took her to a park, drank alcohol and smoked marijuana. They then indecently assaulted the girl, with the one using a mobile cellular phone to film the indecent assault by the other, and then being filmed by another friend while he indecently assaulted the girl. Both men entered into a plea bargain and were given 5-year sentences, wholly suspended for five years, and a R10 000 fine each, for indecent assault and the creation, production and possession of child pornography. The newspaper also reported that the 20-second video clip of the girl, dressed only in her school shirt, was widely distributed among school children. The case of Brett Stevens and The State was another example of the trivialisation of child pornography by South African courts. Stevens was convicted on 2 counts of the indecent assault of a minor and 8 counts of the creation and possession of child pornography. He was sentenced to 8 years imprisonment, with 3 years conditionally suspended for 5 years another example of the “slap-on-the-wrist” sentences typically handed down by South African courts in child pornography cases. On appeal against the sentence, the Learned Judge found that “there was no evidence that the girls suffered any physical harm, nor is there any evidence that either of the girls showed any serious signs of psychological harm until the time of the trial” and reduced the sentence to 6 years, with 2 years conditionally suspended for 5 years! One cannot help but come to the conclusion that South African courts believe that child pornography is a victimless offence – in contrast not only to sentencing policies for similar offences but also to the observations of the judiciary in the United Kingdom and the United States. In a recent case, for instance, where a 36-year-old Surrey man was given a custodial sentence of thirteen and a half years after pleading guilty to 11 charges, the UK Surrey Provincial Court Judge said that the images involved in the case were “.....wrenching and, frankly, agonizing to watch......a gross and continuing violation of the personal integrity and privacy of the child that cannot be adequately described in words..... to describe this material as disturbing would constitute a significant understatement ....the most disturbing aspect of the photographs and videos are the large number involving infants ...the possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any

distribution. Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production. The Internet has exponentially facilitated access to child pornography to a degree which is frightening.” And more recently, the Federal Appeals Court in Atlanta, Georgia, USA, in its ruling that a Georgia man, sentenced to five years in prison and ordered to pay restitution amounting to $12 700-00 to one of the victims after being convicted of the possession of child pornography, held that: “Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child's privacy by possessing their image. All of these harms stem directly from an individual's possession of child abuse images”. The fight against the online sexual abuse and exploitation of children is complex and there cannot be any significant advances without the support of the judiciary. As the advice of United Kingdom’s Sentencing Advisory Panel to the Court of Appeal on Offences Involving Child Pornography, "…..it is fundamental ….that sentencing for these offences should reflect the harm suffered by children who are abused and exploited by the production and distribution of indecent photographs. An offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images. Sentences for possession should also reflect the continuing damage done to the victim or victims, through copying and dissemination of the pornographic images. Those who make or distribute the images bear a more direct responsibility for their eventual use, as well as for encouraging further production." One would look in vain for a reflection of such a response to child pornographers in the judgments and sentencing policies of South African courts – despite section 28(1)(d) of the Constitution which affirms the right of every child to be protected from maltreatment, neglect, abuse and degradation. Child pornography is the maltreatment, neglect, abuse and degradation of all children. Child pornography is not just a serious criminal offence but also a direct violation of every child’s right to protection. Why is the sexual abuse and brutalisation of children, and the exploitation of that abuse and brutalisation through the creation and distribution of child pornography, regarded as so trivial an offence that not

only are sentences for convicted child pornographers mere “naughtynaughty-slaps-on-the-wrists”3 but there is hardly a whisper of outrage from the public? Does this deafening silence – this betrayal of all children - suggest that the public agrees with the leniency with which paedophiles and child pornographers are treated by South African courts? If that is the case, then consider this: even as you are reading this, somewhere a child, maybe even a toddler in nappies, is being sexually penetrated by a brute of a “man”, while another brute is photographing the crime for distribution over the Internet. That picture is, in fact, sitting on your computer and all
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Compare, for instance, sentences handed down to those convicted of the possession of child pornography in the United States: (1) Round Rock Man Gets 2 Life Sentences for Child Pornography - “Round Rock Police obtained a search warrant of Baley's house and seized several computers that contained 1500 photographs and 50 video clips of graphic child pornography”; (2) The Eagle Times, Claremont, NH, USA. A Vermont man will spend the next 13 years in prison after he pleaded guilty to transporting child pornography across state lines; (3) Detroit Free Press, Detroit, MI,USA reported that Mariscal was sentenced by a federal judge to 100 years in prison for producing, importing and distributing child pornography; (4) Korea Times, Seoul, South Korea - an Arizona man who received a 200-year prison sentence for possessing 20 pornographic images of children failed on Monday to persuade the Supreme Court to have his sentence reduced; (5) KHQ Right Now, Spokane, WA, USA had a report of 66-year-old Thomas Herman who was sentenced to 10 years in prison in federal court after pleading guilty to one count of possession of child pornography; (6) Muncie Star Press, Muncie, IN,USA. Rinehart, 33, pleaded guilty before Judge David F. Hamilton to two counts of producing child pornography and was sentenced to 15 years in prison; (7) Frederick News Post, Frederick, MD, USA reported that a Frederick man whose computers contained thousands of images of child pornography accepted a plea agreement that put him in jail for 18 years ; (8) Appleton Post Crescent, Appleton, WI,USA. A 32-year-old Oshkosh man faces up to 575 years in prison and $2.3 million in fines if convicted on 23 counts of possessing child pornography; (10) Justin Fritscher , jfritscher@jackson.gannett.com, November 25, 2010” Porn charge could bring 200 years: Images of children found on computer brought in for repair - a convicted sex offender arrested Tuesday night could face a 200-year prison sentence, if convicted, after five images of child pornography were found on his computer, Madison-Rankin District Attorney Michael Guest said; (11) http://amplify.com/u/bne2x, Production of Child Pornography Results in More Than 27 Years in Prison for 23-Year-Old Austin Man , (12) http://www.news-gazette.com/news/courts-police-and-fire/2011-01-11 -Urbana-mansentenced-20-years-child-porn-case.html and (13) Man possessed 'astronomical amount' of child pornography faces 2114 years in jail http://www.whptv.com/news/local/story/UPDATE-Disturbing-child-porn-collectioncontained/bEUH, 20 January 2011. In contrast, sentences imposed by South African courts are as follows: (1) Two Newlands East men get 5 year sentences, wholly suspended for 5 years, after pleading guilty to the creation, production, possession and distribution of child pornography and indecent assault; (2) Man who claims to have child pornography for research sentenced to a fine of R24 000, half of which was conditionally suspended. The magistrate agreed to a deferred fine of sixteen monthly payments of R750.00; (3) Teacher found guilty of possession of child pornography and exposing children to pornography sentenced to 5 years imprisonment suspended for 5 years; (4) Man who indecently assaulted his own daughter and took pornographic pictures of her over a period of two years sentenced to 7 years imprisonment; (5) “Father Christmas” guilty of indecent assault, exposing children to pornography and possession of child pornography sentenced to 5 years imprisonment; (6) Man found guilty of four counts of creation and possession of child pornography and of exposing children to pornography sentenced to 5 years in prison; (7) Teacher found guilty of possession of 180 minutes of video recording, 265 digital movie clips, 16 slides and 626 still images of

it will take is a simple search and a click of a button for it to appear on your computer screen. The problem, in understanding what child pornography is all about, seems to be the failure to separate rhetoric from reality, a problem exacerbated by the expression itself. The reality is that images of the abuse, brutalisation and torture of children has nothing to do with pornography. “Pornography”, as is commonly understood and defined in jurisprudence, is an image of sexual conduct, involving consenting adults, that stimulates sexual (erotic) rather than aesthetic feelings. Pornography is a “freedom of expression” issue and a legitimate subject for debate. Child pornography is not a freedom of expression issue. An image of the sexual abuse of a child is, in fact, a crime scene – it is evidence of a serious crime against a child. Twinning the meanings of “child” and “pornography” to define “child pornography” makes about as much sense as twinning the meanings of “baby” and “shower” to define a “baby shower”4. There is as much a connection between “baby”, “shower” and “baby shower” as there is between “child”, “pornography” and “child pornography”! The production and use of child pornography must be seen and understood as “......one practice within a repertoire of child sexual abuse”.5 Child pornography consists of images and descriptions of child abuse.6 No matter how cynical they are, few, except those who have to endure the trauma of having to deal with such deeply upsetting materials, know the reality of child pornography. It is not just about naked children. And it is not just about adults having sex with children, even babies. It is the rape, brutalisation and torture of children, including toddlers. As
child pornography and indecent assault of children sentenced to 6 years imprisonment; (8) Man court finds to be a homosexual paedophile sentenced to 2 years imprisonment, with 1 year suspended, for possession of child pornography and (9) Man found guilty of the indecent assault of two minor children and the creation and possession of 71 images of child pornography has sentence reduced to 6 years imprisonment, with 2 years suspended for 5 years 4 See Tasco Luc de Reuck v Director of Public Prosecutions and Others, Case CCT 5/03 5 Rhetoric and Realities: Sexual Exploitation of Children in Europe (2000), Professors Liz Kelly and Linda Regan 6 In an article (One Step Forward, Two Steps Back, published in the Sexual Offences and Community Affairs 2008-2009 Bulletin) on the Constitutional Court’s judgment in what is usually referred to as the de Reuck case (CCT 5/03), I argued that the definition of “child pornography” by the Constitutional Court was not only flawed but inconsistent with the definitions adopted by all other jurisdictions, as revealed in some of the leading cases (See, especially, New York v Ferber, 458 U.S. 747 (1982); R v Sharpe [2001] 1 S.C.R and US v Matthews 209 F.3d.338 (4thC 2000), international organisations, and as defined in certain conventions, as well as the definition in the Films and Publications Act, 1996, which echoes Parliament’s clear intention to make the prohibitions on child pornography absolute. The Constitutional Court’s definition of “child pornography” with reference to the Oxford Dictionary definition of “pornography” and twinning that with the meaning of a “child” is, to put it mildly, absurd and a display of gross ignorance about the reality of child pornography. It is as absurd as trying to define “baby shower” by twinning the definitions of “baby” and “shower” to arrive at a meaning which suggests that a “baby shower” means an infant having a bath.

Michael Malone of ABC News observed: “This is the very heart of darkness. These are images that are more than shocking and repulsive. They kill your soul because you know that every poor child you see on those sites is dead. If not now at the hands of a sadist, then decades from now from alcoholism, drugs or suicide....The pictures first make you sick, then angry and finally homicidal.” Child sexual abuse and exploitation investigators and prosecutors have expressed deep and continuing frustration with the sentencing policies of South African courts. I know of at least one prosecutor with valuable prosecution experience who, frustrated and disappointed with some of the sentences handed down in child pornography cases, moved out of prosecution, because: “Sentencing policies in our courts are a betrayal not only of children but of the hard work put in by police and prosecutors in cases which also have a psychologically-traumatising effect on us. And I am told that magistrates are not prepared to attend the very informative workshops and seminars on child pornography organized and presented by the NPA because they are “a class above prosecutors and police.” Whether or not that is true is beside the point. What matters is that the judiciary, it seems, is not involved in what are really continuing education programmes on issues critical to the development of a rightsbased society. There can be no proper interpretation and application of a law if there is no proper understanding and appreciation of the subjectmatter of that law. The subject-matter of section 24(B) of the Films and Publications Act (and sections 10 and 19 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act) is child pornography and is a direct response to the constitutional right of children to be protected from maltreatment, neglect, abuse and degradation as expressed in section 28(1)(d) of the Constitution. The protection of children and women from sexual abuse, degradation and exploitation is critical to the promotion of a rights-based South Africa. The findings and estimates of international organisations about the extent and scope of child pornography is not irrelevant to South Africa for a very simple reason. Images of child abuse are traded and exchanged mainly, and almost exclusively, through the Internet and mobile cellular phones. The reasons for the Internet as the preferred medium of paedophiles is not important for the purpose of this paper. What is important is to understand that the Internet does not exist in a particular country or geographical location. Simply put, in so far as access to it and all that it contains is concerned, is that it exists on every computer no matter where located. All that is needed to access whatever information is available on the Internet, from any part of the world, is a computer, a modem and a telephone. Even the skills needed to access the Internet have been made so basic that even very young children are able to access the Internet. Given this nature of the Internet, an increase in the availability of child abuse images on the Internet is an increase in such availability in every part of the world.

Until the 2004 amendment, the creation, distribution, production and possession of child pornography constituted a single offence, with a maximum of 5 years imprisonment. However, Parliament, concerned at the increase in incidents of the sexual abuse and exploitation of children in pornography, both nationally and internationally, amended section 27 of the Act in two important respects. Firstly, Parliament created possession, creation, importation and distribution as separate offences and, secondly, increased the permitted maximum to 10 years for each separate offence. The permitted maximum for section 27(1)(a), amended as section 24B(1) is, therefore, 40 years. However, the maximum could, in fact, be higher. Each separate image of child pornography may be charged as a separate offence, since each image is created7 individually and separately. According to the judgment, Stevens created 71 images of child pornography, and, therefore, could, and should, have been charged with 71 counts under section 27(1)(a)(i) and 71 counts under section 27(1)(a)(ii). Stevens would then have been facing a maximum of 710 years under section 27(1)(a)(i) and 710 years under section 27(1)(a)(ii)8. Even taking all counts as one for purpose of sentence, Stevens should have been facing a maximum of 20 years and not 10 years on the child pornography conviction. Given the global nature of the trade in child pornography, and the fact that all offenders in all countries access and download the same images from the same sites, the differences in sentencing policies is disturbing. Responding to calls from law enforcement agencies faced with jurisdictional barriers in the efficient investigation, prosecution and punishment of child pornography offenders, many Governments have been talking about the need for the harmonisation of child pornography laws. For instance, according to research by the International Centre for Missing and Exploited Children, many countries have no or very inadequate laws on child pornography. (To our Government’s credit, South Africa was identified as one of only five countries with a comprehensive legislative response to child pornography, together with Australia, Belgium, France and the United States.) The Budapest Cybercrime Convention set out what is regarded as the minimum requirements for any law dealing with child pornography. A number of countries have joined together in a Global Task Force on Child Pornography on the Internet. But all of these initiatives have not resulted in the harmonisation of national legislations. Many countries with inadequate or no laws
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It should be noted that the act of downloading an image of child pornography from the Internet will constitute both the offences of the creation and possession of that image 8 The possibility of a sentence of 710 years imprisonment may sound absurd. But is it? In January 2007, the “Appleton Post Crescent” of Appleton, WI, USA, reported that a 32year-old man was facing up to 575 years, and $2.3 million in fines, if convicted on 23 counts of possessing child pornography, while the “Korea Times” of Seoul, South Korea reported that the Arizona Supreme Court upheld the 200-year prison sentence of an Arizona man convicted for possession of 20 pornographic images of children. Stevens created, and was in possession of, 71 child pornography images

against child pornography provide safe havens for those profiting from the trade in the sexual abuse and exploitation of children. Harmonisation is frustrated by a number of factors, including cultural attitudes towards intergenerational sex. There are problems with the definition of a “child”, as well as problems with what will constitute child pornography. In the United States, for instance, “virtual” child pornography is not an offence since no child was harmed in its creation. In South Africa, child pornography includes images as well as descriptions. Not so in many countries. Harmonisation of child pornography laws is a very long way away. The lack of harmonisation of laws to combat one of the most heinous crimes against children stands in stark and chilling contrast to the harmonisation of the child pornography industry by Internet and mobile phone paedophiles and child predators. Courts, however, have an opportunity to harmonise sentencing in child pornography cases, without having to submit to any bureaucratic protocols. It is not difficult to find points of similarities in child pornography cases: the same or substantially similar number of the same type of images downloaded from the same websites by perverts in different countries. There is no impediment to the harmonisation of sentencing policies. Courts, therefore, have an opportunity to make a major contribution to the harmonisation of child pornography laws and enhance the protection of all children from sexual abuse and exploitation. In the meantime, however, South African courts should pay attention to the frustrations expressed by the general public and child protection practitioners about the “slap-on-the-wrist” cautionary sentences handed down to convicted paedophiles and child pornography offenders. It is time members of the judiciary, including judges but especially magistrates, participate in continuing education programmes about the true nature of child pornography, even if organized and presented by those of a “lower” status, so that their sentencing policies will reflect, more appropriately, the seriousness of these crimes against young people, children and infants. Section 39 of the Constitution should be the starting-point for South African courts to make a significant contribution to the harmonisation of child pornography sentencing policies. Subsections (1)(b) and (c) clearly provide that, when interpreting the Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law. The Bill of Rights is not irrelevant when dealing with the sexual abuse and exploitation of children: section 28(1)(d) enshrines the right of every child to be protected from maltreatment, neglect, abuse or degradation. There are a number of issues related to the creation, possession and distribution of digitally-created child abuse images that seem to be ignored in decisions of South African courts.

For instance, there does not seem to be a proper understanding and appreciation of the stark reality of child pornography, resulting in sentences which suggest that child pornography is a victimless crime. The judgment of the UK Surrey Provincial Court Judge in a recent case is worth repeating: “.....the possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any distribution. Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production.” The possession of child abuse materials should be seen as falling within the scope of what is defined as depraved indifference recklessness or reckless endangerment in the United States. Depraved indifference or reckless endangerment describes conduct which is “so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime9. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.” Depraved indifference refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of harm – conduct that shows utter disregard for the value of human life not because such a person means to cause harm but because he or she simply does not care whether or not such conduct will lead to harm. “Depraved indifference to human life reflects a wicked, evil or inhuman state of mind, as manifested by brutal, heinous and despicable acts. It is evinced by conduct that is wanton, deficient in a moral sense of concern, and devoid of regard for the life or lives of others” According to the judgment in the Suraez case, “.....depraved indifference is best understood as an utter disregard for the value of human life– a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results”.10 The creation, distribution and possession of child pornography is a brutal, heinous and despicable act and certainly amounts to depraved criminal indifference and reckless endangerment in so far as the lives of children are concerned. Another problem is the lack of understanding the technology of digital images – by both the courts and prosecutors. Take the statement of the High Court (Natal Provincial Division) in the matter of the Koralevs and the State11, for instance: “We are also not in agreement with the finding by the learned Magistrate that the images were ‘original’
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Echoing the advice of the UK Sentencing Advisory Panel that an offender sentenced for possession of child pornography should be treated as being in some degree complicit in the original abuse which was involved in the making of the images 10 6 N.Y. 3d. And see, also, People v Register, 60 N.Y. 273, 469 NYS2s 599 and People v Russell, 91 NY2d 280, 287

images as it is common cause that these images were either downloaded from the Internet or transferred from a digital camera. The original images therefore would be those contained on the camera disc or the original source from which it was loaded onto the Internet site”!!! Until the introduction of digital technology, the traditional image captured by photography is an analogue image. A digital image, however, is a numerical representation recorded simply as a series of binary digits (bits) – either one or zero with no value in between. The image is captured, in batches of ones and zeroes, by being focussed onto an electronic sensor made up of individual light-sensitive elements called pixels or picture elements. Unlike analogue images, digital recording technology provides no original image that could be produced in evidence. An analogue image always has an original, either in a negative or positive format, from which copies may be produced. For a digital image, the “original” consists of data recorded in memory, from which an image can be generated and because the recorded image is represented as a finite set of numbers, exact copies may be made. Therefore, any digital image can be thought of as being the “original” even if it is produced from a copied set of data – every digital copy is an identical replica.12 The fact that a digital image is stored and transmitted in batches of ones and zeroes – the binary language of computers – is significant not only in dealing with the issue of “originals” but also in so far as creation is concerned – something that prosecutors do not seem to appreciate. The prohibition on the creation of child pornography, read with the definition of “visual presentation”…..”produced through or by means of computer software on a screen or a computer printout” means that the downloading of child pornography from the Internet, or mobile cellular phone, is an act of creation. There is a fundamental difference between digital transmission and “analogue transmission.” Digital transmission of data involves the binary language of computers. What is actually transmitted is data in batches of zeroes and ones and it requires a conscious use of computer software to decode an image transmitted in zeroes and ones into an analogue image. When downloading an image from the Internet, that image is nothing more than batches of zeroes and ones until one intentionally uses computer software to convert the zeroes and ones into an analogue image visible on the computer screen. Thus, a person who downloads child pornography from the Internet is creating an image from batches of zeroes and ones. The ordinary meaning of the word
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Case No. AR50/05. Vladimir Koralev and his wife Elena were both convicted on charges of possession of child pornography by the Durban Regional Court but their convictions were overturned on appeal by the High Court (Natal Provincial Division) 12 US law provides that printouts of data stored in a computer are “original” under Fed. R. Evid. 1001(3)

“create” is “to cause to come into existence” and downloading from the Internet clearly causes an image to come into existence.13 A person in possession of child pornography downloaded from a computer or mobile phone should therefore be charged with two separate offences – that of the possession and the creation of child pornography. “Abusers and abused alike tell us the same story. Child sexual abuse is all around us: in our homes, in our streets, in our towns and cities throughout the world. Child pornography is the currency of that abuse. We can no longer bury our heads in the belief that our own children are safe or that the civil liberties of the paedophile are more valid than those of his victim. Ten years ago, incest was the unspoken crime gnawing at the foundations of childhood. Five years ago we came to terms with the reality of the outsider abuse and organised paedophilia. Child pornography is the latest battle to fight, and one we must win at home and abroad. There is, quite simply, no alternative.”14 I mean no disrespect to the judiciary and I think highly of many of those who sit in judgment in our courts. But, to borrow (freely) from Patrick Henry,15 different people often see the same subject in different lights. “Therefore I hope that it will not be thought disrespectful to the judiciary, if, entertaining as I do opinions of a character very opposite to it, I shall speak my sentiments freely and without reserve. Should I keep back my opinions, through fear of giving offense, I should consider myself guilty of an act of betrayal of all children.” Iyavar Chetty January 2011
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See R v Jonathan Bowden, The Times, 19 November 1999. “The wording in s.1 of the 1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a photograph or a pseudo-photograph. The words ‘to make’ had to be given their natural and ordinary meaning, and in the instant context that was ‘to cause to exist; to produce by action, to bring about’. By virtue of s. 7 of the 1978 Act that meaning applied to negatives, copies of photographs and data stored on computer disc. A person who either downloaded images onto disc or who printed them out was making them. To download or print the images within the jurisdiction was to create new material. The reproduction of indecent material to be found on the Internet was within the mischief aimed at by legislation when the 1978 Act was amended by adding the words ‘to make’”. See, also, R v Jayson [CA (2002) EWCA Crim 683] in which the UK Criminal Court of Appeal held that “the act of downloading from a webpage onto a computer is an act of making a photograph”. And see the opinion of the Michigan Appeals Court in the case of Michigan v Brian Hill. After reviewing the dictionary definition of the word make, the circuit court stated that the bottom line was that, following the mechanical and technical act of burning images onto the CD-Rs, something new was created or made that did not previously exist. Peter Pollack, Michigan child porn case might have wider reach, January 2006. And see “Downloading porn is making it” at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA 14 Child pornography: an investigation, Tim Tate, Metheum (1990) 15 Patrick Henry’s “Give me liberty or give me death” speech on 23 March 1775, in Virginia, USA

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