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Lawful Acts, Unlawful Images: The Problematic Definition of 'Child' Pornography

38 (3) Monash University Law Review, (2012), pp. 213-245

Monash University Faculty of Law Legal Studies Research Paper No. 2013/15

33 Pages Posted: 22 May 2013 Last revised: 17 Jul 2013

Jonathan Clough

Monash University - Faculty of Law

Date Written: 2012

Abstract

Recent decades have seen increased national and international efforts to prosecute child pornography offenses. This increasing criminalization has been given greater urgency by the advent of digital technology, which allows offenders to produce and distribute such material with relative ease and anonymity. The interconnected nature of the Internet means that this is a global problem, and many jurisdictions have moved to strengthen their laws to punish each link in the chain, from production and distribution to possession. Central to these offenses is the definition of ‘child’. While internationally ‘child’ is generally defined as a person under the age of eighteen, the age of consent to sexual activity varies considerably between jurisdictions.

This article considers the legal consequences of defining ‘child’ for the purposes of child pornography law as being higher than the age of consent. Drawing upon the laws of Australia, Canada, England, Wales, and the U.S.; it begins with a discussion of the increasing criminalization of child pornography. The rationales behind the criminalization of child pornography will then be discussed, with a critical analysis of their application to images of minors over the age of consent, as well as adults who ‘appear to be’ under eighteen. Two options for reform are then proposed and discussed.

Keywords: child pornography, age of consent, criminal law

JEL Classification: K14,

Suggested Citation

Clough, Jonathan, Lawful Acts, Unlawful Images: The Problematic Definition of 'Child' Pornography (2012). 38 (3) Monash University Law Review, (2012), pp. 213-245; Monash University Faculty of Law Legal Studies Research Paper No. 2013/15. Available at SSRN: https://ssrn.com/abstract=2268248

Jonathan Clough (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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