The scope of the problem
The increasing use of the internet has radically changed how child sexual abuse images are reproduced and disseminated, and the technological ease of production, lack of expense, and anonymity in obtaining and distributing such images has resulted in a massive increase in the “availability, accessibility, and volume of child pornography” (CEOS, 2007; Macpherson, 2012).
The availability of child sexual abuse images (a more accurate description, according to the Internet Watch Foundation (IWF), than “child pornography” or “kiddie porn”) had declined during the 1980s due to legal actions and statutory revisions. However the advent and exponential use of the internet has made child sexual abuse images more accessible and available to collectors and distributors (Jenkins, 2001). Also, the IWF noted that child sexual abuse images on the internet have become more brutal and graphic (Davidson, 2007), and the number of images depicting violent abuse has risen fourfold since 2003 (IWF, 2012), with an almost 90% per cent increase in web pages containing child sex abuse images identified by the IWF since 2009.
Various expert bodies have agreed that the availability and production child sex abuse images is a global menace. The IWF found that websites containing child sex abuse images had risen from 6,000 in 2006 to over 17,000 by 2010 (IWF, 2012). The legislation in Scotland (the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s 16) attempts to curb the production, distribution and possession of child sex abuse images in Scotland. However the majority of websites are hosted outside the UK and are therefore difficult to control, and a multi-faceted response to preventing child sex abuse images via the internet has not yet emerged (IWF, 2012).
Classification of images in Scotland
One issue for legal practitioners is how to decipher the manner in which images are classified by the courts. The COPINE scale (Combating Paedophile Information Networks in Europe) is the main classification system used in the United Kingdom to determine the type of image. The scale was developed in Ireland at the COPINE project, in collaboration with other professions, for psychological therapeutic purposes to categorise child sex abuse images for research and law enforcement. The COPINE scale is a descriptive classification comprising 10 levels of typology, based on analysis of images available on websites and internet newsgroups. Although the perception is of a scale to determine the gravity of images, the COPINE scale was not intended to be a scale of severity.
Recent guidance from the Scottish courts, in particular the case of HMA v Graham  HCJAC 50, suggests that “in sentencing for offences of this kind, reference to the COPINE scale is no longer appropriate” (at para 29). Instead, reference should be made to the Definitive Guideline on the Sexual Offences Act 2003. The Definitive Guideline stems from the 2002 case of R v Oliver  2 Cr App R (S) in the Court of Appeal in England, which outlined a scale by which child sex abuse images could be "graded" or ranked on a sliding scale of severity from one to five, ranging from semi-nude/nude photographs (level 1) through to penetrative sexual assault (level 4) and sadism or bestiality (level 5).
The five point scale, established by the Sentencing Guidelines Council for England & Wales and adopted in 2002, is known as the SAP scale or Oliver scale in England & Wales, and the “Definitive Guideline” in Scotland. In the Definitive Guideline, the Oliver classification of offences was amended in terms of the nature of the images at each level, with several key changes.
The Definitive Guideline classifies indecent images on the following scale:
Level 1: Images depicting erotic posing with no sexual activity.
Level 2: Non-penetrative sexual activity between children, or solo masturbation by a child.
Level 3: Non-penetrative sexual activity between adults and children.
Level 4: Penetrative sexual activity involving a child or children, or both children and adults.
Level 5: Sadism or penetration of, or by, an animal.
Number of child sex abuse images
The second main issue for legal practitioners concerns the relevance of the quantity of images possessed by an accused. While caches typically recovered by police technical support specialists are in the thousands (McGaffney v HM Advocate 2004 SCCR 384), there is wide variation in caches of child sex abuse images held by convicted offenders in Scotland - these vary between low hundreds to hundreds of thousands to collections numbering almost half a million. Evidently, an offender in possession of several hundred thousands images may be considered more deviant than an offender in possession of several dozen images if these images are the same level on the Definitive Guideline.
The Court of Appeal in Scotland has described a quantity of 6,600 images as "very substantial" (McGaffney), while a quantity of 638 images was described as being a "low number" (Quinn v HM Advocate, 13 November 2009, unreported), and a quantity of 152 images was said to be a relatively small number of images by comparison with other cases (Robinson v HM Advocate, 3 November 2005, unreported). A Crown appeal against sentence in the Scottish Courts observed that 171 images was quite a small number by comparison with many other cases (HM Advocate v Peebles, 7 August 2007, unreported). HM Advocate v Graham established the following guidance to categorise the quantity of child sex abuse images (at para 32):
- An offender who takes, distributes or possesses a quantity of indecent images numbered in low hundreds can properly be said to have accessed a small number of images.
- Quantities of images numbered in high hundreds or in thousands can properly be said to be large.
Possession and distribution
The Scottish courts recognise the making of or possession of child sex abuse images, as separate offences from the distribution of images, and it is likely that additional risk factors are relevant for those accused who actively distribute images via the internet. There remains the question of how to properly assess and classify the relevance of online videos or MPEGs, commonly referred to in the courts as “moving images”. For example, a short MPEG may consist of many hundred moving images. Thus far there is no standard method of classifying moving images; however the appeal court in Graham recognised that moving images may be more “vivid and corrupting than a still” (para 33).
Typology of internet sex offenders
There remain debate and gaps in professional knowledge with respect to the extent and type of possessors of child sex abuse images and whether they share most or all of the characteristics of other types of sex offenders. Macpherson (2003) noted that while there are many different types of sex offenders, a meaningful classification of offenders beyond simple “non-contact” and “contact” dimensions has thus far remained elusive. Quayle and Taylor (2003) suggested that internet offenders commonly limit their offending behaviour to non-contact behaviour.
Seto et al (2006) suggest that: “People are likely to choose the kind of pornography that corresponds to their sexual interests, so relatively few non-paedophilic men would choose illegal child pornography given the abundance of legal pornography that depicts adults” (2006, p11).
Quayle & Taylor (2002) analysed the ways in which men convicted of downloading pornography talked about child sex abuse images and what function this played in their accounts. These discourses included images as a means of sexual arousal, collection of images as a means of facilitating social relationships, and use of images as “therapy”, that is to say, as a means of controlling deviant urges.
Possessors of child sexual abuse images may use the material to validate their sexual interest in children, to groom children and lower their inhibitions, or to blackmail victims or other offenders. Others may be motivated to collect child pornography out of curiosity, for sexual arousal, or for other reasons including financial motivation or the status perceived to be associated by possessors with a substantial collection (Quayle and Taylor, 2001).
There is a long-held view, substantiated by research, that general pornography is not associated with an increased propensity towards sexual violence. Currently no research has found a correlation between the viewing of pornographic material and the commission of violent sexual offences (Scottish Executive, 2006). In only a minority of cases did non-contact offenders go on to commit contact sex offences (Macpherson, 2005) and recent studies suggest that online-only offenders pose a relatively low risk of committing contact sexual offences in the future (Seto et al, 2011).
The recently enacted s 42 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for a new offence criminalising the possession of extreme pornographic material. The Act came into force on 28 March 2011, and the new offence criminalises the possession of obscene, pornographic images which explicitly and realistically depict any of:
- an act which takes or threatens a person's life;
- an act which results or is likely to result in a person's severe injury;
- rape or other non-consensual penetrative sexual activity;
- sexual activity involving (directly or indirectly) a human corpse;
- an act which involves sexual activity between a person and an animal (or the carcass of an animal).
The maximum penalty for the new offence is three years’ imprisonment. The new offence is similar to that at s 63 of the Criminal Justice and Immigration Act 2008 in England, Wales and Northern Ireland. The Scottish offence goes further insofar as it covers all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.
Assessing risk with internet sexual offenders
There exist a number of actuarial and structured professional tools to assess for risk of reoffending. These include actuarial measures such as the Risk Matrix 2000 (Thornton et al, 2003) and STATIC-99 (Hanson and Thornton, 1999). Structured professional manuals include the Sexual Violence Risk-20 (Boer et al, 1997), and the Risk of Sexual Violence Protocol (RSVP) (Hart et al, 2003). These measures are in common use throughout Scotland, although there is as yet no risk assessment tool developed specifically for internet sex offenders.
Research conducted by Quayle and Taylor (2002) suggested that practitioners did not understand “the function of the internet for adults with a sexual interest in children” (p32), and did not routinely screen sex offenders for internet use [out of date now?]. Nor is attention generally paid to case-specific items that are unique to internet sex offenders, such as internet access and degree of IT knowledge, or aggravating factors including organised and systematic collection of images and evidence of distribution.
The courts are minded to impose a combination of traditional and case-specific sanctions on internet offenders to manage the risks. These may include sanctions such as engagement in offence-focused therapeutic endeavours, and regular reviews during supervision and management in the community. Case-specific sanctions may include regular unannounced visits to internet offenders in order to view the home environment, and court-ordered restrictions on access to technology such as home computers and internet-enabled mobile phones.
The increasing use of the internet and the availability of illegal and extreme pornographic material have posed challenges for legal practitioners attempting to decipher factors such as the relevance of the nature and number of images in any specific case. The management of such offenders by the courts is increasingly via a combination of traditional methods of supervision and management with case-specific sanctions.
Boer, D, Hart, S, Kropp, P and Webster, C (1997). Manual for the Sexual Violence Risk-20. Professional Guidelines for Assessing the Risk of Sexual Violence. The British Institute Against Family Violence
Child Exploitation and Obscenity Section (CEOS). Child Pornography (2007). Report by the US Department of Justice
Davidson, J (2007). Current Practice and Research into Internet Sex Offending. Report to the Risk Management authority, 1-88
Hanson, R and Thornton, D (1999). Static 99: Improving Actuarial Risk Assessments for Sex Offenders. Department of the Solicitor General, Canada
Hart, S, Kropp, P R, and Laws, D R, with Klaver, J, Logan, C, and Watt, K A (2003). The Risk for Sexual Violence Protocol (RSVP): Structured professional guidelines for assessing risk of sexual violence. Vancouver, BC: The Institute Against Family Violence
Jenkins, P (2001). Beyond tolerance: Child pornography on the Internet. New York: New York University.
Macpherson, G (2003). Predicting escalation in severity of sex offence recidivism: Use of the Sexual Violence Risk-20 and the Psychopathy Checklist: Screening Version. The Journal of Forensic Psychiatry and Psychology, 14, 615-627
Macpherson, G (2005). Online grooming: sex offenders and cyber-technology. Child Safety – Protecting Young people for the threats posed by modern communications. Edinburgh: Holyrood Communications.
Macpherson (2012). Issues in the assessment of Internet Sex Offenders: clinical practice within the Scottish legal context. British Psychological Society, DCP Newsletter, 6, 24-27
Quayle, E and Taylor, M (2001). Child Seduction and Self-Representation on the Internet. Cyber Psychology & Behavior, Vol 4: No 5, 597-608
Quayle, E and Taylor, M (2002). Child pornography and the internet: perpetuating a cycle of abuse. Deviant Behavior: An interdisciplinary Journal, Vol 23: 331-361
Quayle, E and Taylor, M (2003). Model of Problematic Internet Use in People with a Sexual Interest in Children. Cyberpsychology and behaviour, 6, 1: 93-106
Scottish Executive (2006). Risk Assessment and Management of Serious Violent and Sexual Offenders: A Review of Current Issues”
Seto, M et al (2006). Child Pornography Offences are a Valid Diagnostic Indicator of Pedophilia. Journal of Abnormal Psychology, 115, 3: 610-615
Seto, M, Hanson, R and Babchishin, K (2011). Contact Sexual Offending by Men with Online Sexual Offenses. Sexual Abuse: A Journal of Research and Treatment, 23: 124-145
Thornton, D, Mann, R, Webster, S, Blud, L, Travers, R and Friendship, C (2003). Distinguishing and combining risks for sexual and violent recidivism. Annals of the New York Academy of Sciences, 989: 225-235
In this issue
- On your marks
- Many's a crowd
- Family migration
- Assessing internet sex offenders
- Division and sale - disposal inter se
- Reading for pleasure
- Opinion column: Elaine Motion
- Council profile
- Book reviews
- President's column
- Into the front line
- A few more bricks
- Eye on the profession
- One eye over the border
- Who's who in construction
- Speed up child cases
- Take another look
- Relief on the review front
- Waste not
- Scottish Solicitors' Discipline Tribunal
- Financial services regulation: the race to reform
- Leases: where next?
- A wake-up call?
- Law reform roundup
- From the Brussels office
- Update: Registered Paralegal Scheme
- Business checklist
- Ask the experts
- Ask Ash