SOUTH AFRICAN LAW REFORM COMMISSION ISSUE PAPER: NO 30 Project 107 SEXUAL OFFENCES: PORNOGRAPHY AND CHILDREN DATE: 5 August 2015 ISBN: 978-0-621-43964-9 CLOSING DATE FOR COMMENT: 30 NOVEMBER 2015 © Copyright South African Law Reform Commission First Published August 2015 TABLE OF CONTENTS SUMMARY OF THE ISSUE PAPER ....................................... 6 CHAPTER 1: OVERVIEW OF THE INVESTIGATION .......... 14 A INTRODUCTION....................................................................................................................... 14 B A NOTE ON TERMINOLOGY ....................................................................................................... 16 C BACKGROUND AND SCOPE ...................................................................................................... 18 D METHODOLOGY AND PURPOSE OF THE ISSUE PAPER ................................................................. 20 E LEGISLATIVE AND REGULATORY CONTEXT ................................................................................ 21 F OUTLINE OF THE ISSUE PAPER ................................................................................................ 22 CHAPTER 2: CONTEXTUALISING PORNOGRAPHY, CHILD ABUSE MATERIAL AND GROOMING AS THEY RELATE TO AND AFFECT CHILDREN .................................................... 24 A. INTRODUCTION AND BACKGROUND ........................................................................................... 24 B. WHY THE CONCERN ABOUT CHILDREN AND PORNOGRAPHY AND CHILD ABUSE MATERIAL? ............. 24 C. PREVALENCE OF CHILD ABUSE MATERIAL ................................................................................. 27 D. PREVALENCE OF CHILD ABUSE MATERIAL ON THE AFRICAN CONTINENT ....................................... 29 E. EXPOSURE OF CHILDREN TO PORNOGRAPHY ............................................................................. 35 F. WHAT ARE CHILDREN BEING EXPOSED TO? ............................................................................... 38 G. THE EFFECT OF EXPOSURE TO PORNOGRAPHY ON CHILDREN? .................................................... 40 H. THE USE OF PORNOGRAPHY TO GROOM CHILDREN? ................................................................... 42 I. THE COMMISSION OF “REAL TIME” ABUSE FOLLOWING EXPOSURE TO PORNOGRAPHY AND CHILD ABUSE MATERIAL ................................................................................................................... 43 CHAPTER 3: LEGISLATIVE FRAMEWORK ........................ 48 A. INTRODUCTION....................................................................................................................... 48 B. INTERNATIONAL IMPERATIVE TO PROTECT CHILDREN .................................................................. 48 C. LEGISLATIVE FRAMEWORK IN SOUTH AFRICA ............................................................................ 55 CHAPTER 4: THE WAY FORWARD ................................. 138 A INTRODUCTION AND OVERVIEW .............................................................................................. 138 B DEVELOPMENTS RELEVANT TO THIS INVESTIGATION ................................................................. 138 C IS THERE A NEED TO ENHANCE THE CRIMINAL LAW AND RESPONSE TO THE CREATION, POSSESSION AND DISTRIBUTION OF CHILD ABUSE MATERIAL? ...................................................................... 146 D PROVIDING GREATER PROTECTION FOR CHILDREN FROM EXPOSURE TO PORNOGRAPHY .............. 147 LIST OF SOURCES ............................................................ 153 2 Introduction The South African Law Reform Commission (SALRC) was established by the South African Law Reform Commission Act 19 of 1973. The members of the Commission are — Madam Justice MML Maya (Chairperson) Mr Justice J Kollapen (Vice-Chairperson) Professor M Carnelly Professor V Jaichand Mr I Lawrence Professor AW Oguttu Advocate M Sello Ms N Siwendu The members of the Commission‘s advisory committee for this project are — Mr I Chetty, KINSA (South Africa) Mr D Cull, Internet Service Providers Association (ISPA) Adv Retha Meintjes (SC), DDPP, National Prosecuting Authority Ms J van Niekerk, Childline Colonel A Pienaar, FCS South African Police Service Ms R Sedumedi, Film and Publications Board (until her resignation on 4 February 2015) Ad hoc members: Mr S Risiba, CEO of the Film and Publications Board (from 6 March 2015) Ms P Linders of the Department of Telecommunications & Postal Services (from 31 March 2015) Mr S Robbertse, State Law Adviser, Department of Justice and Constitutional Development (Legislative Development) 3 The Secretary of the SALRC is Mr TN Matibe. The Commission's offices are located in the Spooral Park Building, 2007 Lenchen Avenue South, Centurion, Gauteng. Correspondence should be addressed to: The Secretary South African Law Reform Commission Private Bag X668 PRETORIA 0001 Telephone : (012) 622-6300 E-mail : [email protected] Website : http://salawreform.justice.gov.za The project leader for the investigation is Professor AW Oguttu. The researcher assigned to this investigation, who may be contacted for assistance, is Ms D Clark. 4 Preface The aim of this issue paper is to serve as a basis for Commission deliberations on the topic of pornography and children, particularly the exposure of children to pornography through the mass media and the use of technology to groom and exploit children. The creation and distribution of pornography, sexually explicit material of themselves and child pornography (child abuse material) by children has also been flagged as an area warranting attention. This paper was preceded by an in-house pre-investigation paper compiled by the Commission into pornography and the mass media, to assess the need for this investigation. In addition, Mr Chetty compiled research papers in his capacity as an advisory committee member to this project in preparation for this issue paper.1 The issues presented in this issue paper are raised to identify and delineate issues which need further debate. The comment of any person on an issue contained in the issue paper or in respect of a related issue which may need inclusion in the debate is sought. Such comment is of vital importance to the Commission. The Commission will assume that respondents agree to the Commission quoting from or referring to comments and attributing comments to respondents, unless representations are marked ―confidential‖. Respondents should be aware that the Commission may be required to release information contained in representations under the Promotion of Access to Information Act, 2000 (Act 2 of 2000). Respondents are requested to submit written comment, representations or requests to the Commission by no later than 30 November 2015. Respondents are not restricted to the questions posed and issues raised in this paper, and are welcome to draw other matters to the Commission‘s attention as long as they are related to this topic. The allocated researcher will endeavour to assist with any difficulties and/or questions related to making submissions. Any request for information and administrative enquiries should be addressed to the Secretary of the Commission or the researcher assigned to this project, Ms DM Clark. This document is available on the Commission‘s website at: http://salawreform.justice.gov.za. 1 Mr Chetty is the former Head of the Film and Publications Board‘s Legal Services and the current coordinator of the Canadian-based Kids Internet Safety Alliance (KINSA) special projects in Africa. 5 Summary of the Issue Paper 1. As part of the overarching investigation into the review of all sexual offences, this issue paper seeks to review the legislative framework that currently applies to children in respect of pornography and child pornography (child abuse material) within the larger framework of all statutory and common law sexual offences. The secondary aim is to consider the need for law reform in relation to the legislative framework governing children and pornography. 2. The opportunities offered by the mass media to access a varied and vast amount of information, educational material and entertainment and to actively engage in remote communication using electronic tools do not come without risks. One of the risks that children face when engaging with the mass media and using electronic tools in South Africa is that they may intentionally seek or unintentionally be exposed to sexually-explicit material. This material may be illegal or may only be legal for adults. For the purpose of this paper, four areas of concern have been identified: Access to or exposure of a child to pornography and child pornography (child abuse material); Creation and distribution of child pornography (child abuse material); Explicit self-images created and distributed by a child; and Grooming of a child and other sexual contact crimes associated with or which are facilitated by pornography. 4. This issue paper introduces the topic of pornography and children for legal debate. It aims to identify the manner in which the law currently regulates and protects children from being exposed to pornography or from being used or abused to create pornography, and whether there is a need for law reform. Its purpose is to initiate and stimulate debate, to explore proposals for law reform and to serve as a basis for further in-depth deliberation. 5. The issue paper has four chapters. Chapter 2 provides an overview of the concerns relating to child pornography (child abuse material); grooming of