The Crime of Possessing or Viewing Child Pornography: Cannot Always Agree on Who is Harmed?
Date
2022
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Publisher
National Law University, Jodhpu
Abstract
Naturally, the aim of the child pornography offences would be to prevent harm to children. However, when applying the Harm Principle,it is difficult to define a specific victim group protected by the offence. The crime can occur even if there is no harm to a real child. Depending on the circumstances, the subject of harm can involve a foreign child victim, the pornography possessor themselves, or solely the community norm against child abuse. Such a dispersive, or rather, inconsistent focus of harm casts doubt on whom the offence is intended to protect.
Even in terms of international legal obligations, the Convention on the Rights of the Child explicitly contemplates the protection of LOCAL children, not foreigners. Specifically, Article 2 of the Convention provides that “States Parties shall respect and ensure the rights set forth in the present Convention to each child WITHIN THEIR JURISDICTION”.
There is therefore the unanswered questions of (1) whether the original legislative aim intends to cover FOREIGN children, and (2) to what extent those foreign children should be protected domestically.
This issue was raised in a Californian decision, indicating how this point can affect the criminality of the conduct in concern and also the scope of the law. In that case, the defendant argued that the Californian reporting requirement protects Californians only. The Attorney General replied in argument that California has an interest in protecting all US children. Will the law protect foreign children out of the US? Unfortunately, this issue was left unanswered by the court because the appeal was resolved on other grounds.
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Keywords
child sexual abuse material, law, International Resources, India, harm, victims, Convention on the Rights of the Child
Citation
Kwan, M. (2022). The Crime of Possessing or Viewing Child Pornography: Cannot Always Agree on Who is Harmed?. Criminal Law Studies (National Law University, Jodhpur).