TRENDS & ISSUES in crime and criminal justice

No. 279 July 2004

A Typology of Online Child Offending Tony Krone

The Internet has increased the range, volume and accessibility of sexually abusive imagery, including . Child pornography depicts the sexual or sexualised physical abuse of children under 16 years of age. Australia has joined many other nations in an international effort to combat this multi-faceted global menace that combines both heavily networked and AUSTRALIAN HIGH TECH highly individualised criminal behaviour. This paper examines the typology of online child CRIME CENTRE pornography offending, as well as law enforcement responses to the problem. This work is a result of a collaborative program between the Australian Institute of Criminology and the Australian High Tech Crime Centre. Toni Makkai Acting Director ISSN 0817-8542

Child pornography existed before the creation of the Internet. It is not possible to say whether the ISBN 0 642 53843 3 advent of the Internet has fuelled the demand for child pornography and expanded an existing market, or whether it simply satisfies in new ways a market that would have existed in any event. It is clear, though, that the Internet provides an environment for the proliferation of child pornography and the creation of an expanding market for its consumption. This paper explores three important questions: GPO Box 2944 • What is online child pornography? Canberra ACT 2601 Australia • Is there a typology of offending online? Tel: 02 6260 9221 • If so, what are the implications for law enforcement? Fax: 02 6260 9201 What is child pornography? A non-legal definition As pointed out by Taylor and Quayle (2003), the legal definition of child pornography does not capture all the material that an adult with a sexual interest in children may consider sexualised or sexual. As they argue, understanding why child pornography is produced and collected requires For a complete list and the us to think beyond the legal definition of child pornography. Based on a study of online content at full text of the papers in the the Combating Paedophile Information Networks in Europe centre (COPINE), Taylor and Quayle Trends & issues in crime identified 10 categories of pictures that may be sexualised by an adult with a sexual interest in and criminal justice series, visit the AIC web site children. Material in some of these categories does not come within the legal definition of child at:http://www.aic.gov.au pornography. For example, in the first category are non-erotic and non-sexualised pictures of children in their underwear or swimming costumes from commercial or private sources, in which the context or organisation by the collector indicates inappropriateness. The second category comprises pictures of naked or semi-naked children in appropriate nudist settings. The third category is of surreptitiously taken photographs of children in play areas or other safe environments Disclaimer: This research paper does showing underwear or varying degrees of nakedness. not necessarily reflect Although material in the first category and some of the material in the second and third will not be the policy position of the Australian Government caught by the legal definition of child pornography, all may be indicative of a sexual interest in children and are therefore potentially important in the investigation of child pornography offences. A U S T R A L I A N I N S T I T U T E O F C R I M I N O L O G Y

The legal definition of child a non-criminal process for reporting web Morphed images of children pornography sites that host material which would be The definition of child pornography may refused classification (as well as X- and include morphed pictures. Taylor (1999) The Australian regime to regulate R-rated material that is easily accessible refers to such images as pseudo- pornography (whether online or not) without adult verification). The Australian photographs, and they are classified essentially relies on state and territory laws Broadcasting Authority (ABA) can issue according to three types: (for convenience referred to here as ‘state a take-down notice to have Australian- laws’). The provisions prohibiting the • digitally altered and sexualised images based web sites remove this content. If possession of child pornography are listed of bodies, such as a photograph of a the site is hosted overseas, the ABA can in Table 1. There are also provisions against child in a swimming costume where notify content filter developers to add it to the manufacture, distribution or sale of child the costume has been electronically their lists of offensive sites (Chalmers pornography with more severe penalties. removed; 2002). Child pornography is generally defined as • separate images in one picture, such material that describes or depicts a person Proposed national law as a child’s hand superimposed onto under 16 years of age, or who appears to In June 2004 the Australian government an adult penis; and be less than 16, in a manner that would introduced a Bill to enact federal laws, tied • a montage of pictures, some of which offend a reasonable adult. However, this to the power to regulate telecommunications, are sexual. legal definition can be difficult to apply covering child pornography and grooming The ease with which a morphed collection (Grant et al. 1997) because of jurisdictional (Attorney-General’s Department 2004). The can be put together, even without the differences. For example, in some states Bill defines child pornography in terms of the capacity to digitally alter images, is there must also be the depiction of sexual depiction of a child under 18 years of age illustrated by the case of convicted double activity by the child or some other person and provides for a penalty of 10 years for murderer and serial rapist Lenny Lawson. in the presence of the child. Difficulty also possession of child pornography, and Lawson was one of Australia’s longest arises from the fact that child pornography 15 years for online grooming. serving prisoners when he died in custody laws usually require a judgment to be Children actually or apparently under 16 at the age of 76, three days after being made whether material is offensive or not. It is not necessary to prove that a child transferred to a maximum-security unit. The state laws regarding child pornography depicted was in fact less than 16 years of This transfer followed the discovery in intersect with federal censorship laws age at the time the image was created. It Lawson’s cell of a collection of video tapes contained in the Classification is enough that they appear to be under which in part contained images from (Publications, Films and Computer that age. The legislation therefore applies Sesame Street spliced with other program Games) Act 1995 (Cwlth). In two to images of a person over the age of 16 material to produce what was described jurisdictions (NSW and NT) the legal who is made to appear younger than that. by the prison psychologist as a collection definition of child pornography also Standard medical indicators of the physical of ‘voyeuristic sexual fantasies and sexual includes material that has been refused developmental stages of children may be perversion, often associated with children’ classification under this Classification Act. used to assess whether an image depicts (Mitchell 2004). The Broadcasting Services Amendment a child under the age of 16 (Censorship Creating fictitious children under 16 (Online Services) Act 1999 (Cwlth) created Review Board 2000). Child pornography can be created without directly involving a real person. The words Table 1: Child pornography possession offences ‘describing or depicting’ are capable of including text, images and three- Jurisdiction Provision Year Maximum penalty dimensional objects. While these laws ACT s 65, Crimes Act 1900 1991 5 years were initially framed in relation to photographs, videos and film, the language NSW s 578B, Crimes Act 1900 1995 2 years/100 penalty units extends to cover the development of online NT s 125B, Criminal Code 1996 2 years/$20,000 pornography. The offence provisions do not corporate penalty require a real person to be described or Qld s 14, Classification of 1991 1 year/300 penalty units depicted, and they include fictional Publications Act 1991 characters in text or digitally created SA s 33, Summary Offences Act 1953 1992 1 year/$5,000 images of fictional characters. Tas. s 74, Classification (Publications, 1995 1 year/50 penalty units In Dodge v R (2002) A Crim R 435, a Films and Computer Games) prisoner in Western Australia who was Enforcement Act 1995 serving a long sentence for sexual offences Vic. s 70, Crimes Act 1958 1995 5 years against children was convicted of further WA s 60, Censorship Act 1996 1996 5 years offences after writing 17 sexually explicit stories about adult males involved in 2 A U S T R A L I A N I N S T I T U T E O F C R I M I N O L O G Y

As indicated above, not all material in the Table 2: Categories of child pornography categories of nudist or erotica would fit Level Description COPINE typology the legal definition of child pornography. The courts must consider the context 1 Images depicting nudity or Nudist (naked or semi-naked in legitimate settings/ erotic posing, with no sexual sources); surrounding the making or keeping of activity Erotica (surreptitious photographs showing material in deciding whether it is child underwear/nakedness); pornography or not. Posing (deliberate posing suggesting sexual content); and When it comes to assessing the severity Explicit erotic posing (emphasis on genital area) of an offence of possessing child 2 Sexual activity between Explicit sexual activity not involving an adult pornography, it is not enough to measure children, or solo masturbation by the number of images of various types a child involved. There are other indicators of 3 Non-penetrative sexual activity Assault ( involving an adult) seriousness, such as the offender’s between adult(s) and child(ren) engagement with the material. This may 4 Penetrative sexual activity Gross assault (penetrative assault involving include how long it has been held, the between adult(s) and child(ren) an adult) degree to which it is organised by the 5 Sadism or bestiality Sadistic/bestiality (sexual images involving pain offender, how it was acquired, and whether or animals) it is a trophy of the offender’s own sexual Source: Sentencing Advisory Panel 2002 abuse of a child (Taylor & Quayle 2003). sexual acts with young children (mostly exempted if there is not undue emphasis on How are offences committed boys aged less than 10). Dodge pleaded its indecent or offensive aspects. online? A typology of guilty to child pornography charges for Material may not be classed as child offending supplying another prisoner with these pornography if it is held in good faith for As noted by Taylor and Quayle (2003), the stories and of possessing the stories the advancement or dissemination of legal, Internet provides the social, individual and himself. The appeal court noted that a medical or scientific knowledge. technological circumstances in which an prison sentence was required because the interest in child pornography flourishes. law sought to prevent access to child Possession for law enforcement pornography. However, the fact that no purposes • Social child was involved in producing the material Where not specifically exempted in the same The Internet has been used to create was taken into account in reducing the legislative package, law enforcement officers a self-justifying online community for sentence from 18 to 12 months. rely on general powers of investigation and child pornography users. for the keeping of evidentiary material to retain In contrast to the law in Australia, the United • Individual child pornography for law enforcement States’ Child Pornography Prevention Act Using the Internet, individuals can access purposes. Child pornography laws in NSW, 1996 was a federal law that sought to prohibit material and communicate with others Victoria, WA and NT allow a law enforcement virtual child pornography. However the relevant through a computer terminal providing an officer to possess child pornography in the provision was struck down for being too widely apparently private sphere for the exercise or performance of a power, function drafted. In Ashcroft v Free Speech Coalition expression of sexual fantasy. or duty imposed by or under any Act or law. (00-795) 535 US 234 (2002) the United States • Technological Supreme Court held that the section infringed Categorising child pornography Digital technology and the Internet the First Amendment right to free speech. make it possible for child pornography The provision defined child pornography Police often distinguish between five consumers to become obsessive widely using the words ‘appears to be’ and categories of child pornographic images. The collectors so that the collection of ‘conveys the impression’ in relation to categories were originally developed in the images becomes an end in itself. The depicting a person under the age of 18. The United Kingdom based on the 10-point Internet also provides a ready means Court found this wording too broad in the typology of such images developed by to access material supporting absence of any requirement in the same COPINE. These range from nudist shots and increasingly extreme sexual provision for the prosecution to prove that surreptitious eroticised underwear or semi- fantasies. It can then be used to act the material is obscene. naked shots, through to penetrative sexual out those fantasies with children in assault and sadism or bestiality (Table 2). online interactions or in physical Artistic merit or scientific or other purpose While it may be beneficial for police to meetings arranged online. The question of artistic merit must be prioritise their investigations by reference to Knowing the differences in how online child considered in relation to whether material is the seriousness of the images involved, the pornography offences are committed is offensive to a reasonable adult person or not. full extent of an offender’s collection may not vitally important to understanding and In South Australia, a work of artistic merit is be known until an investigation is well combating the problem of sexual under way. 3 exploitation of children. What follows is a A U S T R A L I A N I N S T I T U T E O F C R I M I N O L O G Y

discussion of the typology of offending child pornography even if the offender has assert a claim to be free to access (summarised in Table 3). There is an no intention of sharing it with any other whatever material they wish. increasing seriousness of offending, from person. The case of Lenny Lawson, referred Non-secure collector offences that do not directly involve a child, to above, is an example of a private fantasy The non-secure collector purchases, to offences that involve direct contact with collection in video format. downloads or exchanges child children, and from online grooming to For the offender engaged in private fantasy pornography from openly available sources physical abuse. the risk of exposure is low, but it could on the Internet or in chat rooms that do Browser occur in a number of ways: by tip-off from not impose security barriers. Security A browser may come across child someone else with access to the barriers include passwords, encryption or pornography unintentionally (for example computer or data storage device; in the the requirement to trade a minimum via spam) but then decide to keep it. This course of searching a computer for number of images. There is a higher is an offence if it can be proved they formed evidence of other offences; when a degree of networking among non-secure the intention to possess the material. In computer is being serviced; when a collectors than among trawlers. the absence of a confession, this may be computer is stolen; or even when a Secure collector shown by surrounding circumstances, computer has been accessed remotely In contrast, the secure collector uses such as repeat visits to a site. Whether a by a third party. security barriers to collect pornography. person is an accidental browser or not is Trawler In addition to encryption, some groups a question of fact. Among trawlers there is little or no security have an entry requirement that locks its Private fantasy employed and minimal networking of members into protecting each other— If a person has a private fantasy involving offenders. Taylor (1999) lists three each member is required to submit child sex with a child, no offence is committed. If motivations. The sexually omnivorous user pornography images to join. The that fantasy is preserved as something more is oriented to a range of sexually explicit W0nderland [sic] Club was one such than a thought, then an offence may be material of which child pornography is international child pornography ring involved. The representation of that fantasy simply a part but not the focus. The exposed in 1998. In order to join, members in text or digital format on a computer may sexually curious user has experimented had to submit 10,000 child pornography be sufficient to constitute the possession of with child pornographic material but has images. Both open and private collectors not pursued it. The libertarian is driven to may be driven by the desire to amass a

Table 3: A typology of online child pornography offending

Type of Level of networking Nature of involvement Features by offender Security abuse Browser Response to spam, accidental hit on suspect site— Nil Nil Indirect material knowingly saved

Private fantasy Conscious creation of online text or digital images Nil Nil Indirect for private use

Trawler Actively seeking child pornography using openly Low Nil Indirect available browsers

Non-secure collector Actively seeking material often through peer-to- High Nil Indirect peer networks

Secure collector Actively seeking material but only through secure High Secure Indirect networks. Collector syndrome and exchange as an entry barrier

Groomer Cultivating an online relationship with one or more Varies—online Security depends Direct children. The offender may or may not seek material contact with on child in any of the above ways. Pornography may be individual children used to facilitate abuse

Physical abuser Abusing a child who may have been introduced to Varies—physical Security depends Direct the offender online. The offender may or may not contact with on child seek material in any of the above ways. Pornography individual children may be used to facilitate abuse

Producer Records own abuse or that of others (or induces Varies—may depend Security depends Direct children to submit images of themselves) on whether becomes on child a distributor

Distributor May distribute at any one of the above levels Varies Tends to be secure Indirect

4 A U S T R A L I A N I N S T I T U T E O F C R I M I N O L O G Y

collection. As a result, extremely large 2004). Western Australia is developing least eight different ways of offending, with numbers of images can be involved. similar legislation (Gallop 2004). four of these having no direct contact with children, three involving either online or In a WA case, R v Jones [1999] WASCA Physical abuser physical contact, and one where there 24, the court considered the size of a Physical abusers are actively involved in may or may not be contact with children. collection as an aggravating feature on the abuse of children and use child There are also significant differences in sentencing: ‘the degradation of the children pornography to supplement their sexual the level of security applied and the degree is more serious because there is a larger craving. The physical abuse may be of networking engaged in. More research number of images involved.’ The defendant recorded for the personal use of the abuser is required to explore the ways in which had 162,000 images on a CD-ROM. The but is not intended to be further distributed. these different types of offending are appeal court took into account both the In cases of this type, a charge of making interlinked. The most important research number of children involved and the or possessing child pornography will issues to address are: number of images of each child as usually be incidental to a charge for the aggravating features. The original two-year physical abuse that has taken place. • How can victims be identified to suspended sentence was replaced with a prevent ongoing abuse or provide gaol term of 18 months. Producer support in relation to past abuse? In an English case the offender, Andrew The producer of child pornography is • What effects are suffered by victims Tatum, was jailed for five years for involved in the physical abuse of children. portrayed in child pornography? He or she provides images of that abuse possessing 495,000 indecent images of • What is the extent of recidivism to other users of child pornography. children. An indication of the obsessive among child pornography offenders? nature of his collecting is that the images Distributor • What are the most effective ways of upon which his conviction was based The distributor of child pornography may rehabilitating a child pornography counted for only about five per cent of his or may not have a sexual interest in child offender? personal collection of more than 10 million pornography. For example, the Western pornographic images (The Age 2004). • Does the use of child pornography Australian case of R v W (2000) 27 SR follow a typical progress from the Online groomer (WA) 148 involved a child who was marginally pornographic to the most prosecuted for possessing child The online groomer is a person who has extreme images? pornography with the intent to sell it. The initiated online contact with a child with the • Is there any causal link between use offender had set up a web site offshore to intention of establishing a sexual relationship of child pornography and the physical make money from advertisers. The content involving cyber sex or physical sex. Child abuse of children? pornography is used to ‘groom’ the child—it of the web site included images and is shown to the child to lower that child’s textual references to child pornography. Implications for law The court held he was properly convicted. inhibitions concerning sexual activity. The enforcement proposed Commonwealth law referred to Police are devoting increasing attention and above covers indecent material as well as Profiling offenders resources to combat child pornography and pornographic pictures and text when To the categories listed above might be online sex offences. Investigations are communicated to a child for the purpose of added the child user or the youthful user who necessarily complex and time consuming making it easier to procure that child for pursues material reflecting their own level of because they are often coordinated across sexual activity, or to make it more likely that sexual maturity or exposure by adults to child jurisdictions, they involve networks of the child will engage in sexual activity pornography. It has been reported that offenders using varying levels of security, and (Attorney-General’s Department 2004). The children under 10 who have been exposed an individual offender must be linked to the same proposed law includes specific to sexually exploitative material have misuse of a computer. offences of a child for sexual themselves become users of it (including purposes and refers to sending child pornography) and abusers of other Perhaps the most important factor in law communications with the intent of facilitating children (Stanley et al. 2003). enforcement is the reliance on networks by a meeting as a precursor to sexual activity. Research in the United States shows that many offenders. Concentrating on these linkages is likely to help address the problem The current Queensland legislation the typical person arrested for child of the proliferation of child pornography. contains an anti-grooming provision. The pornography offences is a Caucasian male Stopping the physical abuse of children first successful prosecution under this law over the age of 26 years (Wolak et al. requires an intensive investigation effort led to the sentencing of an offender to nine 2003). Little is known, however, about the concentrating on finding new material and months imprisonment in February 2004. characteristics of offenders in Australia. on cracking into the more secretive world of The 26-year-old had tried to procure a 13- Even if there were consistent patterns of individual and networked producers. year-old girl for sex using an Internet chat gender and age among offenders, it would room. The ‘girl’ was in fact a police officer be wrong to assume that offending fits a Police may use stings to locate individual involved in a sting operation (Townsend homogenous profile. The typology offenders. The greater long-term value in any presented above shows that there are at sting operation may lie in exploding the view 5 that the Internet is an anonymous domain in which it is safe to offend. Such sting by Taylor and Quayle (2003), the following References operations may need to operate on a number are markers of serious online offending: Attorney-General’s Department 2004. Internet child of levels to capture the various ways in which • possessing new or recent images, sex offences Bill tabled. Canberra: Attorney- General’s Department. www.ag.gov.au offences may be committed online. extreme images, or images Censorship Review Board 2000. Decision of 32nd • Police stings using false web sites target associated with text; meeting, 19–20 October 2000: Untitled computer unsophisticated users (Cyberspace image (young blonde male with hand on soccer • participating in an online community ball). Surry Hills: Censorship Review Board Research Unit 2003). By catching of offenders; trawlers and deterring those who may Chalmers R 2002. Regulating the net in Australia: • trading in images; and Firing blanks or silver bullets? Murdoch University be thinking of experimenting with child electronic journal of law vol 9 no 3. www.murdoch. pornography, an admittedly low level of • cataloguing of images. edu.au/elaw/issues/v9n3/chalmers93_text.html offending will be disrupted. The Australian Investigators need to consider the extent Cyberspace Research Unit 2003. Response to the National Crime Squad’s announcement regarding High Tech Crime Centre has joined the to which an offender found with child the launch of Operation Pin. www.uclan.ac.uk/host/ Virtual Global Taskforce of police from pornography may be involved in other levels cru/docs/crupr18122003.doc the UK, US and Canada to run such sting of offending. The development of predictive Gallop G 2004. Covert police team to hunt online operations and other coordinated indicators of involvement would therefore predators. Press release, 21 June 2004. www.media statements.wa.gov.au activities (The Guardian 2003). be an important advance in combating child pornography. Grant A, David F & Grabosky P 1997. Child • Sting operations aimed at groomers are pornography in the digital age. In Transnational more finely targeted at those who In the meantime, law enforcement agencies organised crime vol 3 no 4: 171–188 represent a real threat in terms of must prioritise their investigation efforts. A Mitchell A 2004. Inside the mind of a killer. Sydney: The Sun Herald 22 February 2004: 55 contacting children and acting out their useful scale of priorities has been developed sexual impulses. Queensland police in the UK in response to the flood of cases Sentencing Advisory Panel 2002. The panel’s advice to the court of appeal on offences involving have been able to operate with an anti- from Operation Ore. The top priority is given child pornography. London: Sentencing Advisory grooming law in that state to locate and to cases involving convicted paedophiles and Panel prosecute groomers. We do not know those with access to children, such as Stanley J & Kovacs K 2003. Child abuse and the Internet Ninth Australasian Conference on Child how prevalent grooming is, and stings of teachers and social workers. The second Abuse and Neglect. Sydney: 25 November 2003 this type may rely on the police officer priority is given to cases involving people in Taylor M & Quayle E 2003. Child pornography: an and the offender drawing on a ‘shared positions of authority, for example police and Internet crime. Hove: Brunner-Routledge

fantasy’ of the ‘compliant and sexualised magistrates. The third is for suspects not Taylor M 1999. The nature and dimensions of child child’ (Taylor & Quayle 2003). involved with children. pornography on the Internet Combating child pornography on the Internet conference, Vienna. Much more needs to be done to www.asem.org/Documents/aaconfvienna/ Conclusion pa_taylor.html understand the problem of online child pornography. The literature on adults with There is no doubting the importance of The Age 2004. Five years for UK man who downloaded child porn. Melbourne: The Age a sexual interest in children ‘fails to combating online child pornography in 3March 2004. www.theage.com.au/articles/2004/ accommodate behaviour that relates to order to protect children from abuse. More 03/03/1078191360537.html the new technologies’ (Taylor & Quayle research is needed to properly understand 2003. Police sting targets Internet the problem, to fully assess the nature paedophiles. London: The Guardian 18 December 2003). Not only does this failure impede 2003. www.guardian.co.uk/child/story/0,7369, the treatment of offenders, it also hampers and scale of offending, to identify and 1109589,00.html the ability to prioritise matters for protect victims and, ultimately, to ensure Townsend I 2004. Qld Internet sex laws reveal investigation and for prosecution. At this that our approach is both effective and just. disturbing extent of Internet predators. AM. ABC Radio 14 February 2004. www.abc.net.au/am/ stage, we can speak of associations content/2004/s1045034.htm Acknowledgment between risk factors and models of Wolak J, Mitchell K & Finkelhor D 2003. Internet offending behaviour. Drawing on the work This research was funded by the sex crimes against minors: the response of law enforcement. New Hampshire: National Center for Australian High Tech Crime Centre Missing and Exploited Children 6 (www.ahtcc.gov.au).

Dr Tony Krone is a research analyst at the General editor, Trends & issues in The AIC is a statutory body with a Board Australian Institute of Criminology crime and criminal justice series: of Management comprised of federal, Dr Toni Makkai, Acting Director state and territory government Australian Institute of Criminology representatives, administered under the GPO Box 2944 Canberra ACT 2601 Criminology Research Act 1971 Note: Trends & issues in crime and criminal justice are refereed papers