THE TRIVIALISATION OF CHILD PORNOGRAPHY CRIMES BY SOUTH AFRICAN COURTS

The recent arrest of a father for the sexual brutalisation of his two daughters and seventeen other
preteen girls for manufacturing, distributing and possessing child pornography (Monster Dad caught,
The Times, 5 November 2014) confirms the opinions of many experts on the stark reality of child
pornography that the creation, production, distribution and possession of child pornography - better
known as child abusive materials - is a heinous, horrendous and malicious sexual crime against
children that happens every second of every day around the world. It is depressing that the
exponential growth of online child sexual abuse and exploitation is moving South Africas social
environment towards being nothing more than a catalogue of the sexual abuse and exploitation of
children. In fact, given that children are struggling to live normally in an emotionally, physically and
psychologically-toxic social environment in a society where social consensus against intergenerational
sex is fast disappearing from its culture, South Africa seems to have moved from being an racial
apartheid state (for segregation and discrimination on the grounds of race) to a child apartheid state
(on the grounds of the sexual abuse and exploitation of children). (Segregation on grounds other than
race is sexual apartheid - Oxford Dictionary)
Fundamental to appropriate and effective legal and social responses to the online sexual abuse and
exploitation of children is a proper understanding of the complexities involved in not just the creation but
also the dissemination and sinister use of child abusive images, commonly referred to as child
pornography. The intersecting issues which arise from child abusive images include child protection
concerns, technological architecture and politics of the Internet and the implication of offenders who
operate in cyberspace but whose devastating effects are most keenly felt at the local level and within
communities. But the suspended sentencings of convicted child pornography offenders by South
African courts (seen as nothing more than a slap on the wrist) suggest that the subject-matter is full of
ignorance, confusion and lack of the proper understanding of the reality of child pornography.
South African courts are showing extreme weakness as they do not seem to understand that child
pornography is, as observed in Rhetoric and Realities: Sexual Exploitation of Children in Europe
(2000), one practice within a repertoire of child sexual abuse. And given that the online sexual abuse
and exploitation of children is a global problem and not just a national phenomenon, the lack of
harmonised sentencing policies is a betrayal of all children and not just the child-victims. Albert
Einstein once said that the world has become a dangerous place to live not because of people who do
evil but because of people who sit by and let it happen. Are those who just slap on the wrists part of
the people who sit by and let evil happen?
A South African courts recent suspended sentence of a person convicted of a child pornography crime
stands in chilling contrast to the recent sentencing of a couple in the United States of America.
Patricia Ayers was sentenced to 1,590 years in prison after pleading guilty to 53 counts of
producing child pornography. And her husband, Matthew Ayers, also pleaded guilty to 25
counts of producing child pornography and was sentenced to 750 years in prison. Both received
the maximum penalties for each count after being convicted in May 2014. ( Couple Sentenced to More
Than 1,000 Years After Child Pornography Production, Florence, USA, Katelyn Murphy, 24 October
2014).
And in November 2014, a Florida, USA man, Lucas Chansler, was sentenced to 105 years in prison
after pleading guilty to using online threats to extort pornographic images from children and 9
counts of producing child pornography. (105 years in prison for Florida man for child porn,
Florida News, November 16, 2014 04:22 EST)

Only a month ago, a Rowlett man - Stephen Walker, 32 - was sentenced to 60 years in federal
prison for creating sexually explicit photos and videos of two young girls. (Elise
Schmelzer Follow @eliseschmelzer Email eschmelzer@dallasnews.com. Published: July 6, 2015 9:05
am)
Remember also the report by Korea Times, Seoul, South Korea, a few years ago that an Arizona man
who received a 200-year prison sentence for possessing 20 pornographic images of children failed to
persuade the Supreme Court to have his sentence reduced!
In order to ensure appropriate sentencing of those convicted of involvement in child pornography acts,
the crime should be seen not simply as the possession or distribution of child abuse images but as the
sexual abuse, exploitation, degradation and impairment of the dignity of all children and the promotion
of the use of child pornography for sexual gratification through the portrayal of children as acceptable
sexual objects.
The advice of United Kingdoms Sentencing Advisory Panel to the Court of Appeal on Offences
Involving Child Pornography should, therefore, be followed by South African courts:
"..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."
The advice of the Sentencing Advisory Panel was followed in the UK. In passing a custodial sentence
of thirteen and a half years to a 36-year-old Surrey man after pleading guilty to 11 charges of the
possession of child pornography, 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.....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.
Canadian courts also do seem to follow the advice of the UK Sentencing Advisory Panel. The judgment
of the Supreme Court of Canada in R v Sharpe ([2001] 1 S.C.R) clearly showed the proper
understanding of the stark reality of child pornography.

.....child pornography is not a victimless offence but..is inherently harmful to children and society.
This harm exists independently of dissemination or any risk of dissemination and flows from the
existence of the pornographic representations, which on their own violate the dignity and equality rights
of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the
attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing
representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all
members of society suffer when harmful attitudes are reinforced. The possibility that pornographic
representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the
privacy rights of the persons depicted constitutes an additional risk of harm that flows from the
possibility of dissemination. Child pornography is harmful whether it involves real children in its
production or whether it is a product of the imagination. Section 163.1 was enacted to protect children,
one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by
child pornography, as well as Parliaments reasoned apprehension that child pornography also causes
attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal
harm is not a valid reason for attenuating the Courts deference to Parliaments decision.....children are
used and abused in the making of much of the child pornography caught by the law Production of
child pornography is fuelled by the market for it, and the market in turn is fuelled by those who seek to
possess it. the link between the production of child pornography and harm to children is very strong.
The abuse is broad in extent and devastating in impact. The child is traumatised, by being used as a
sexual object in the course of making the pornography. The child is sexually abused and degraded. The
trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it
initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years
that follow with the knowledge that the degrading photo or film may still exist, and may at any moment
be being watched and enjoyed by someone.
The possession of child pornography should, in fact, be seen as not far from 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 crime. Depraved indifference refers to a persons 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. (See, for example, People v Register, 60 N.Y. 273, 469 NYS2s 599 and People v Russell, 91
NY2d 280, 287)
Child sexual abuse and exploitation investigators and prosecutors have expressed deep frustration with
the inappropriate 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 into administration and management:
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.
Whether or not that is true is beside my point. What matters is that there can be no proper
interpretation and application of a law if there is no proper understanding and appreciation of the
subject-matter of that law. The subject-matter of section 24B of the Films and Publications Act is child
pornography and is a direct response to the constitutional rights of children to be protected from what

child pornography is all about - maltreatment, neglect, abuse and degradation - which is what is in
section 28(1)(d) of the Constitution.
The world is becoming a dangerous place for children not only because of the people who do evil but
also because of people who sit by and let it happen. People who sit by and let evil against children
happen are those who have no knowledge or proper understanding of the stark reality of child
pornography and inappropriate sentencings of convicted child pornography offenders by court
officials confirms the lack of proper understanding of the reality of child pornography (better known as
child abusive images) by such court officials and are part of people who sit by and let evil happen
against children.
I mean no disrespect to the judiciary and I think highly of many of those who sit in judgment in courts.
But, to borrow (freely) from Patrick Henrys speech Give me liberty or give me death (23 March 1775,
in Virginia, USA), 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
Director, KINSA Africa.