INCREASING THE NUMBER OF VIEWINGS OF CHILD PORNOGRAPHY THROUGH THE FILMS AND PUBLICATIONS REGULATIONS NO.

207 OF 15 MARCH 2010

The recently-gazetted Films and Publications Regulations, No 207 of 15 March 2010, is problematic the DNA of the Regulations does not match the DNA of the Films and Publications Act in a number of respects but most importantly, with respect to child pornography. The Regulations show no respect for the observation of Grobler AJ1:: .....the use of a statute for a purpose other than its intended field of application may lead to the greater evil of infringement of fundamental rights..... Child pornography degrades all children and not just the child-victim. The viewing of child pornography, even strictly within the law, therefore, violates section 28(1)(d) of the Constitution the rights of all children to be protected from maltreatment, neglect, abuse, which must include non-contact abuse, and degradation. Section 16 of the recently-gazetted Films and Publications Regulations2 reveals a chilling ignorance of the stark reality of non-contact child sexual abuse and reveals lack of a proper understanding of the serious harms associated with child pornography3 and the ease with which such images are widely disseminated. The serious harms associated with child pornography confirms, in fact, that child pornography is the non-contact sexual abuse of children and that all children are re-victimised and degraded every time someone views child pornography. It is the recognition of this fact that led to the enactment of the Adam Walsh Child Protection and Safety Act in the United States, which is aimed at minimising the number of persons who watch child pornography even within courts and law enforcement. Section (2)(A) provides that, Rule 16 of the Federal Rules of Criminal Procedure4 notwithstanding, a court shall deny, in any proceeding, any request by the defendant to copy, photograph, duplicate or otherwise reproduce any property or material that constitutes child pornography. An important effect of that Act is to minimise the number of persons viewing child pornography even within the law. Section 16 of the Films and Publications Regulations does the opposite it increases the number of people viewing child pornography and therefore increases the number of
1

Hafeez and Minister of Safety and Security, Wong and Minister of Safety and Security, Case Nos. 24940/01 and 18759/2001, High Court of South Africa (Transvaal Provincial Division), at page 12 2 Government Gazette No R. 207 of 18 March 2010 3 Appeal No 2008AP206-CR, State of Wisconsin v Ronald W Bowser. It should be noted that the reference is to serious harms associated with child pornography and not its creation, which, obviously, is even more serious 4 Under Rule 16, government bears the burden of showing good cause to restrict discovery

times the child-victim is re-victimised. Referring child pornography to the Head of Classification, the Child Protection Unit of the Board and the Appeal Tribunal significantly increases not only the number of persons viewing child pornography but also the number of times child pornography is being viewed. The viewing of child pornography is, in fact, the non-contact sexual abuse of a child. While the child-victim is re-victimised every time someone views his or her picture, all children are victimised each time someone views child pornography. And with more copies around, there is an increased risk that such images will end up in the wrong hands. On the basis of the constitutional principle that, in all matters concerning the child, the best interests of the child is paramount, it is not unreasonable to expect a court to use its discretion to minimise the risk of the distribution of child pornography by denying any defence attorneys request for copies of any child pornography materials forming the subjectmatter of a prosecution. This is not to suggest that defence lawyers are any less trustworthy than prosecutors or even judges or policemen.5 Given that the risk of the distribution of child pornography increases when more persons possess copies of such images, whether they are defence lawyers, prosecutors or police officers, it is reasonable to expect a court to limit the number of people who possess copies of child pornography.6 Child pornography is a criminal matter and the question of whether or not an image amounts to child pornography is a matter for courts and not administrative tribunals. The opinion of the Board is irrelevant in any prosecution involving child pornography. Sections 16(6) and 18(5) of the Films and Publications Act are clear and unambiguous - the chief executive officer of the Film and Publication Board must refer publications, films and games containing child pornography to the police for investigation and prosecution. The Board and the Appeal Tribunal are administrative bodies and have no authority to determine matters falling within criminal law. If a court finds that the materials referred to the police under sections 16(6) or 18(5) of the Act do not constitute child pornography, then it becomes a matter for the Board and Appeal Tribunal to resolve through classification. That the risk of the use and dissemination of child pornography increases when more people possess copies of such images whether, as the Wisconsin Circuit Court held, they are government employees or members of a defence team cannot be denied by any reasonable person. Similarly, no person who appreciates the fact that children are victimised every time someone views child pornography will deny the need to minimise the number of times, and the number of people, who view child pornography. Section 16 of the Regulations should be amended to provide that any film, game or publication which, in the opinion of a
5

The category of professionals who have been convicted on child pornography charges over the past 5 years includes judges, lawyers, police officers and prosecutors! 6 Should defence attorneys be provided with copies of child pornography forming the subject-matter of a prosecution? Iyavar Chetty (2009)

classification committee, contains child pornography, should be referred directly to the police for investigation and prosecution, as is, in fact, required by sections 16(6) and 18(5) of the Films and Publications Act. Iyavar Chetty (2010)