40

The United Kingdom's Coroners and Justice Act 2009 (part 2, chapter 2) makes possession of images portraying fictional child abuse punishable by law. Wikipedia has a summary, but here's a snip from the primary-source legalese:

(5) “Child”, subject to subsection (6), means a person under the age of 18.

(6) Where an image shows a person the image is to be treated as an image of a child if—

 (a) the impression conveyed by the image is that the person shown is a child, or

 (b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

Of particular significance is the conviction of anime fan Robul Hoque whose cartoons the court found to be infringing. As summarised by The Mirror's Gareth Lightfoot:

Despite being cartoons, they were classified as prohibited images as they depicted young girls, some in school uniforms, some exposing themselves or taking part in sexual activity.

The April 2007 consultation on the law (HTML summary) (full pdf) prepared by the UK Home Office asserts that the law helps to protect children against abuse, in § Concern about the material, ¶ 2–3:

The police, children’s charities and others represented on the Criminal Law Sub Group of the Home Secretary’s Task Force on Child Protection on the Internet are concerned that the fantasy images themselves fuel abuse of real children by reinforcing potential abusers’ inappropriate feelings towards children.

In addition, these images can be used to help groom victims. Whilst the use of these images for grooming purposes may result in a prosecution under the Sexual Offences Act 2003, making their possession an offence would enable these images to be taken out of circulation and make them unavailable for use as a grooming tool.

In ¶ 1 of the same section, the consultation also expresses a need for caution:

It is the case that cartoons, drawings and material created entirely by manipulation of computer software do not harm real children in the same way as taking indecent photographs of children, which are currently covered by legislation. The creation of a simple possession offence in respect of fantasy material is a serious step.

Australia has similarly decided to outlaw films where a naked actor "appears to look under the age of 18", regardless of actual age.

I suspect that such laws stem from a wrong working hypothesis of "fantasy leads to action". Regarding other human sexual behaviour, the contrary is supported by evidence that—

Does similar evidence exist for whether such a ban protects children from abuse?

  • 6
    'I suspect that this law stems from a wrong working hypothesis of "fantasy leads to action". ' No, the hypothesis is that virtual porn leads to real porn and that real child porn requires real children. I.e. it's not the watcher that you expect to have sex with a child. It's the person from whom the watcher obtains the real child porn. Also, virtual child porn sites make it easier to find customers for real child porn, which again leads to more real child porn being made. – Brythan Jul 1 '16 at 23:51
  • 6
    @Brythan I don't follow your reasoning. Say someone goes to Comiket in Tokyo and buys a loli porn magazine. How does that lead to the artist having sex with a child? – Anko Apr 18 '19 at 16:00
  • 1
    The someone then realizes that the loli porn is not fully satisfying. So the someone then looks to buy real porn. Possibly from the loli artist. Or possibly from a different person. And in general, a real porn distributor can go to Comiket, watch who buys the loli, and approach them about buying the real thing. That doesn't work with rape, as it is not sold. At most, brothel pimps might look for porn buyers. I.e. the comparable would be porn increasing brothel use, not rape. – Brythan Apr 19 '19 at 1:29
  • 8
    @Brythan works pretty well with murder though - we see action movies that are fantasy where people kill each other and watchers pay for that entertainment. Same logic would say that this isn't enough and people will start paying for snuff movies that show real live action. – Frank Hopkins Nov 8 '19 at 3:28
  • @Brythan Watching a movie about a hired assassin does not make people become hired assassins themselves, nor does it make people be contacted by hired assassins looking for jobs. The assertion, as it stands currently, is false by default, since it's very premise is false. – XenoRo Feb 16 at 20:54
5

Short answer:

At the time the laws were made there was no empirical evidence that fantasy material was linked to child abuse. Instead, the laws were formed solely based on moral and potential for harm guiding principles.

Long answer

Because the laws are relatively new there is not a lot of research directed at fantasy material.

The following will be based on the 2017 PhD thesis of Hadeel Al-Alosi titled Fantasy Crime: The Criminalisation of Fantasy Material Under Australia’s Child Abuse Material Legislation. pdf of PhD available online.

Al-Alosi also has a book from 2019 available, but I do not possess it nor do I have access to it. The Criminalisation of Fantasy Material: Law and Sexually explicit representations of fictional characters. This book is likely to be a good source.

I am not in anyway an expert (I am not even an amateur), nor did I commit the time required to read the entire thesis. What I present is based on reading concluding and summary comments on individual chapters, as well as keyword skimming of the document.

On pp. 19, in regards to whether there is evidence that fantasy material can reduce incidences of real sexual offenses [the following paragraph has many references which I have not included, but those interested can look up the actual paragraph in the above link for further investigation]:

Conversely, others have questioned whether deviant sexual fantasies are a reliable predictor of future offending for sexual offenders. Some studies have indicatied that not all offenders who molest children experience sexual fantasies involving minors prior to their offense. Also, some suggest deviant fantasies may allow paedophiles to release sexual tension, which reduces the chances of paedophiles engaging in sex offending in real life. Given the inconsistencies in the research, the relationship between fantasy and child sex offending remains ambiguous.

On pp. 34

  1. Does the empirical evidence support these theoretical justifications?

It is necessary to examine the available empirical evidence to assess whether any of the prevalent theories justify criminalisation. In chapters 7 and 8, the literature reviewed is synthesised with the theoretical justifications to answer this question. However, given the limitations of the existing literature, this study also conducted surveys and interviews with relevant individuals, seeking their views as to whether the prohibition is justified. Therefore, the theories of criminalisation are used as a tool for interpreting the evidence.

Where this is in reference to

  1. What are the possible theoretical rationales and justifications for prohibiting, or not prohibiting, sexually explicit fictional representations of minors?

Thus, chapters 7 and 8 are the places to look for empirical evidence. Here is the conclusion to chapter 7

7.4 Concluding Remarks

The aim of this chapter was to assess the potential harms created by fictional child pornography and determine whether the Harm Principle can justify criminalisation. It was found that, even though there is no conclusive empirical evidence such material causes harm, it is reasonable to believe that fictional child pornography can negatively affect viewers. The central role of fantasy in the aetiology of sex offending has been well documented, highlighting that there is a significant risk that fantasy incites child sexual abuse. While the existing research is limited by its focus on serious child sex offenders, it is clear fictional child pornography, like other types of media, has the potential to desensitise viewers of all ages and backgrounds. When desensitisation is taken into account, the harm of fictional child pornography is sufficient to justify preventing its dissemination. The Harm Principle, however, has its limits and cannot support criminalising private possession of self-created works of the imagination

From this conclusion there is (as stated by it) no conclusive empirical evidence that such material causes harm.

The conclusion to chapter 8 is

8.3 Concluding Remarks

This chapter firstly discussed whether prohibiting fictional child pornography can be justified on the Offense Principle. It was found that the Offense Principle would support prohibiting the widespread dissemination of such material but not criminalising private possession, accessing, or sharing of such material with willing viewers. Provided there is no spiteful motive to cause offense to others, the Offense Principle would only go so far as regulating fictional child pornography to prevent unwitting exposure. The second section of this chapter considered whether Legal Moralism supports prohibition. As discussed, Devlin’s extreme Legal Moralism provides the strongest theoretical basis for criminalising both dissemination and private possession of fictional child pornography. Although Devlin argued that the law should, as far as possible, respect individuals’ privacy, he emphasised that it is legitimate to criminalise certain conduct if it is beyond the limits of tolerance. Whether fictional child pornography crosses this limit is a question that needs to be investigated through future research. A modest Legal Moralism can also support prohibition, provided such material is considered objectively wrong. While Moral Paternalism may support criminalisation, it is questionable whether virtue can be coerced. Even though it is relatively unproblematic to find that both Legal Moralism and Moral Paternalism support criminalising fictional child pornography, legal enforcement of morality is controversial in liberal societies. This is reflected in the literature, as well as the survey findings.

From what I can distill from the thesis, it appears the arguments against fantasy material involving children comes down to morality arguments and unacceptable risk of harm.

Thus, my conclusions are that more research is needed. It does however appear certain that at the time the laws were made, there was no empirical evidence. Rather moral and potential for harm principles seem to have been precedence.

| improve this answer | |

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .