Abusive Images of Children and Compensation
This article was presented by Jonathan Wheeler at the annual APIL/ ACAL child abuse conference held in London on Friday 22nd June.
Abusive images of children and compensation
1. Context
Pornography is a multi million dollar industry. In her research, Professor Gail Dines believes the industry in the USA alone is worth $97 billion. It is an industry which has been changed and transformed by the internet, making pornography anonymous, affordable and accessible. Dines argues that the industry is such an important part of the US’s GDP it has become ‘above ground’ respectable; it funds political parties, and holds conferences and trade shows.
Ever since ‘Playboy’ in the 1950’s and ‘Penthouse’ in the late ‘60’s, there has been an increasing acceptance of erotic images in our mainstream culture. The sort of images one sees of young people today – celebrities in the media, mainstream advertising and pop culture – can be at a level equivalent to the ‘soft core’ pornography of 40 to 50 years ago. Reference (if reference is needed) can be made to “page 3”, “lads’ mags”, and pop-star videos. Dines argues that for the industry to survive, it has had to adapt and re-invent itself. Whilst our grandfathers may have been titillated by a bare ankle or plunging neckline, today we are surrounded by images of ‘soft core’ pornography in our everyday lives. Access to ‘hard core’ porn has never been easier and this becomes de-sensitising, altering the ‘arousal template’ for males. As a result, the industry is either being pushed (by demand) or is pushing into new areas to differentiate itself. Pornography today is more extreme, fetishistic and brutal, and areas of ‘depravity’ outside of the norm are being explored.
It is of interest to note that in the ‘States the criminal law was changed in 2003 (apparently due to extensive lobbying by the porn industry). It is no longer illegal to depict scenes which would suggest that the model is a child or a young teenager, as long as in fact the model is 18 or over. So titles such as ‘Daddy’s Whore’, ‘First Time with Daddy’, and ‘It’s Okay, She’s my Step Daughter’, selling the fantasy of sex with a child, are all above board. And arguably this fuels the demand for ‘real’ child porn – the anonymous user gets bored of the simulation and wants the real thing.
The growing problem in this country is exemplified by statistics from the Child Exploitation and Online Protection Centre which, over the last 5 years, shows a marked rise in arrests based on intelligence gathered . Anecdotally, one can chart this also by the sheer number of reports in the news of individuals being prosecuted for possessing abusive images of children. Since 1992, the UN Convention on the Rights of the Child has sought to protect children from such exploitation globally, and yet it appears to be on the rise.
The internet has enabled those with more than a passing interest in extreme forms of pornography to share files and conduct on-line discussions within ‘closed’ groups, whereby the entry requirement to join such groups is to upload images (sometimes stipulated to be ‘original’ images) of child sex. Entry levels can run to thousands of such images. In tandem, the anonymity of the internet chat room makes it easier for perpetrators to gain access to children, engage with them, and groom them.
Perhaps as disturbing is the NSPCC study published last month which reveals the prevalence of ‘sexting’ among teenagers. ‘Sexting’ is the creation, exchange, sharing and forwarding of sexual messages or explicit images through mobile phones and/or the internet. Research indicates that between 15% and 40% of young people, under-age teenagers themselves, have been exposed to this. It can be seen as a form of cyber-bullying, whereby typically a male will pressurise a female into sending sexually suggestive images of herself to him (or he will film or photograph her performing a sexual act upon him with or without her consent). These can then be used to ‘blackmail’ the subject with the risk of dissemination of the images to his (and the subject’s) social circle and beyond. So prevalent is this practice that the study found that exposure to these home-made pornographic images is now as common among young people as exposure to ‘traditional’ sexual or pornographic content on-line, and more prevalent than conventional cyber-bullying. According to the report, “stranger danger” is something in this country which seems well understood by the 13 to 15 years old girls who were involved in the study; it is in fact the peer to peer approaches for sexually explicit images which are more demanding of them. And of course these can find their ways into the hands of others, courtesy of the internet and mobile phone technology.
2. The criminal law
Section 1 of the Protection of Children Act 1978 penalises the making, distribution, showing and advertisement of indecent images of children – be they films, photographs or pseudo-photographs (an image which by computer graphics or otherwise is made to look like a photograph). Criminal offences involving drawings, sound and text-based stories are governed by the Obscene Publications Act 1959. The Sexual Offences Act 2003 relates to actual conduct with a child in producing abusive images, such as causing or inciting a child to engage in sexual activity or pornography (ss.10, 48), controlling a child involved in pornography (s.49), and arranging or facilitating child pornography (s.50). There is also the ‘grooming’ offence under s.15, and the voyeurism offence under s.67. The Sexual Offences Act 2003 altered the Protection of Children Act 1978 in its definition of a child, increasing the age limit from 16 to 18.
Section 69 of the Criminal Justice & Immigration Act 2008 extends the remit of the indecent photographs legislation to include derivatives of photographs such as tracings or other forms of data. Tracings are when the offender takes a photograph, traces its outline and colours it in, destroying the photograph. Scanners and other software can be used to do this at a sophisticated level. It demonstrates the ways the criminal law tries to keep up with the ingenious ways of pornographers to try and stay one step ahead.
Jurisdictionally, if images from foreign websites are downloaded for viewing in the UK, that would be an act of ‘making’ an image and punishable under UK law. An attempt to commit such a crime, or a conspiracy to commit such a crime, would also be covered by our criminal legislation. Inciting someone outside the UK to distribute images within the jurisdiction of the UK courts is triable here as the incitement takes place here.
The Sentencing Council has categorised abusive images of children in 5 categories – you may have seen these referred to in news reports as to the level of images in a Defendant’s possession. They are:
Level 1: Images of erotic posing, with no sexual activity;
Level 2: Non-penetrative sexual activities 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 bestiality.
Aggravating (or mitigating) factors will include the age of the child/ children, the nature of the material and the extent of the offender’s involvement.
Often the common law in criminal cases helps the civil courts interpret behaviour which can give rise to civil remedies for compensation. What comes next should be seen as a discussion rather than a stating of black-letter law. As litigators we need to be creative in finding remedies for wrongs where the law has not kept up with the pace of change.
3. Civil remedies
A Claimant who has been abused is likely to have suffered from a psychiatric injury at the time, which may be long-lasting. Post traumatic stress disorder (PTSD) is a common diagnosis. Research has shown that someone whose sexual acts have been filmed or photographed is likely to suffer further psychiatric damage because of the knowledge that those images can be seen by others. A study into prostitution and pornography conducted by Dr Melissa Farley , spanning nine countries and interviews with 854 women found that 68% would satisfy the diagnosis for PTSD. It was difficult to extrapolate the causes as many of these women involved in prostitution had suffered some kind of abuse (sexual, physical or both) in childhood, and had gone on to suffer physical and sexual violence in adulthood, often in the course of their profession. Almost half (49%) reported that they had been filmed by clients when having sex with them and it was those women who were the most profoundly affected by mental disorder.
Practice point: Whilst each case of course has to be evidenced by an appropriate expert, if you are aware that images were made of your client during their abuse, this should be brought to the psychiatrist’s attention: it is likely to mean that your client’s psychological problems are deeper, will respond less well to treatment, and thus will sound in damages. Specific questions of the client should be asked when taking instructions if they believe that their abuse was photographed or filmed.
3.1 The assailant
Clearly a person who abuses a child in the course of creating a photograph or a film will be liable to that child in trespass against the person (assault, battery, false imprisonment). That person will in the normal course be responsible in damages for all the harm suffered – so for the physical and psychiatric harm that results.
3.2 The image-taker/ maker
However what about a person who simply takes the film? We consider in detail the potential remedies available:
3.2.1 At common law
Even if the film maker did not assault the child in the course of producing the image, he may still be liable in a claim for trespass, specifically false imprisonment, defined as “depriving the claimant of freedom of movement, without a lawful justification for doing so”. Subject to the length of the detention, we would suggest that damages for false imprisonment alone are unlikely to be great. And what if even that tort cannot be made out?
The issue came up in the case of C v D. In that case one of the allegations was that the Defendant headmaster had filmed the Claimant in the showers at a school. At the trial, counsel for the Claimant conceded that these allegations fell short of assault, and that there was no breach of duty or negligence. However they were nonetheless deliberate acts that were proven and which it was alleged had caused psychiatric injury. Field J reviewed a series of cases in this area, in particular that of Wilkinson v Downton where a malicious practical joker had told his victim that her husband had suffered a serious accident, thus causing her psychiatric injury. In C v D, there was an actionable wrong under the Wilkinson v Downton principle, but that remedy was only available if the filming of the Claimant had caused him to suffer a recognised psychiatric injury, and in this case it had merely been distressing. The same conclusion would of course have been reached if a claim in negligence had been made out – the lack of a recognised psychiatric injury would have ensured that that claim failed on the same basis. Nonetheless the case demonstrates one route by which a Claimant might recover damages against a person who films him for sexual gratification.
Despite the ruling in C v D, the writers would argue that a claim in assault may still be possible on similar facts. According to the case of Collins v Wilcock , an assault is an act that causes another person to apprehend the infliction of immediate, unlawful, force on his person. Other cases derived from the criminal common law indicate that words or gestures alone, or indeed silent telephone calls, can be sufficient to constitute an assault.
The issue of assault comes up in cases of voyeurism, where a person may film or photograph a child for their own sexual gratification, but without their knowledge and without any actual touching taking place. It is arguable that there is a hostile intention on the part of the voyeur insofar as he intends to use those photographs for his own sexual gratification, and that he is reckless as to their effect. His actions are certainly unlawful and in that way he is acting with hostility. The “assault” at the time will not cause the victim to apprehend any force, because he or she does not know what is being done. The situation changes if the victim then discovers the photographs or is alerted by the authorities. At that stage, the victim would have very good cause to apprehend the threat of sexual violence. The hiatus between the deliberate act and its result should not preclude the voyeurism from being an assault.
3.2.2 Statutory remedies
– Protection from Harassment Act 1997
One route which was not available in C v D (as the abuse occurred between 1989 and 1993) was a claim under the Protection from Harassment Act 1997.
Section 1 of the 1997 Act prohibits a person from pursuing a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. The test is an objective one – if a reasonable person would consider that the course of conduct amounted to harassment then the harasser ought to have known. Harassment is not defined in the Act but section 7 (2) states it will include alarming the person or causing that person distress. Lord Phillips MR in Thomas v Newsgroup Newspapers Ltd said that harassment is generally understood and is oppressive and unreasonable conduct targeted at an individual. In Dowson v Chief Constable of Northumbria Police Simon J set out six matters which would need to be satisfied for conduct to amount to harassment:
- The conduct must occur on at least two occasions;
- It must be targeted at the Claimant;
- It must be calculated in an objective sense to cause alarm or distress;
- It must be objectively judged to be oppressive and unacceptable;
- Whether the conduct is objectionable and unacceptable will depend on the social or working context in which the conduct occurs;
- A line is to be drawn between conduct which can be said to be unattractive and unreasonable and conduct which has been described in various ways as designed to torment the victim, or be of an order which would sustain criminal liability.
Clearly the taking of indecent and abusive images of a child for his own (or others’) sexual gratification will be covered here. The taking of an image, printing it, uploading and downloading are all separate acts which (we would submit) form a ‘course of conduct’. Section 3 of the Act provides for a civil remedy: damages may be awarded for (amongst other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. Consequently proving a recognised psychiatric injury is not required for such a claim. The statutory limitation period under the Act is 6 years (and arguably this can run from the last act of harassment – the viewing/ uploading/ downloading of the image).
A recent case which illustrates the application of this Act is AMP v Persons Unknown. The Claimant’s mobile phone was stolen. She had sexually explicit pictures of herself saved on her phone, for her boyfriend’s exclusive use. She was alone in the images and her face was clearly visible. She was informed by strangers on Facebook that the photographs had appeared on a web site and that she had been tagged to the images by name. She managed to secure their prompt removal by the online media hosting service which operated the site. She was however then threatened by a stranger that he would upload the photographs to a Swedish web site unless she added him on Facebook as a friend. She deleted his messages and blocked the sender. There was some evidence too that her father’s business was blackmailed over the release of these images. Four months later the images were uploaded to a Swedish web site, and had since been downloaded an unknown number of times by unknown people. As a result, if the Claimant’s name was searched through online search engines, the images would be included in the search results. The Claimant sought an injunction to prevent the spreading of the images and their storage and transmission in the UK. An interim injunction was granted on the basis that this would prevent an actual or expected breach of the Protection from Harassment Act.
To serve the injunction, and to sue the wrongdoers, their identities must be known. A court order can be made to force the internet service provider to identify the IP addresses of those who had uploaded and downloaded the files (known as a Norwich Pharmacal order) .
– Human Rights Act 1998
Another possibility would be a Human Rights Act claim, where the perpetrator is a public servant, such as a care worker. Articles 3 (protection from torture and oppression) and 8 (right to privacy) of the European Convention on Human Rights would be relevant. The limitation period is only 1 year.
– Data Protection Act 1998
Thirdly there may be a claim under the Data Protection Act 1998. Section 36 of the 1998 Act makes it clear that the Act will not apply to “personal, family or household affairs” but as we have seen child pornography is an enterprise and in some instances a business. The images taken of the victim are “sensitive personal data” (which includes information as to a subject’s sexual life (s.2 (f)). Section 1 states that “personal data” means data that relates to a living individual who can be identified from that data.
Section 13(1) of the 1998 Act says that an individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage (which can include compensation for distress under section 13(2)).
The problem is again defining “damage”. In Campbell v Mirror Group Newspapers the court held that the nature and details of the therapy that Naomi Campbell was receiving at Narcotics Anonymous, including the photographs with captions, were clearly information as to her physical or mental health or condition and were therefore “sensitive personal data”. Miss Campbell recovered damages for distress because her claim came under section 13(2)(b) of the 1998 Act. The photographs had been taken for one of the “special purposes” which was journalism. Section 13(2)(a) stipulates that otherwise the Claimant must suffer “damage.” Mr Justice Morland in his judgment said that “damage” in section 13(1) and section 13(2)(a) meant special or financial damages in contra-distinction to distress in the shape of injury to feelings. That indicates that the damage must be serious, but a victim of child pornography may well suffer psychiatric damage as a result of discovering that their images have been traded across the internet, quite apart from any actual financial losses that may accrue.
– Criminal injuries compensation
There may be a claim under the 2008 Criminal Injuries Compensation Scheme. Obviously the abuse that takes place under the eye of the camera is a crime of violence, but it is submitted that a further serious crime is also taking place for which the 2008 Scheme provides no remedy, namely the distribution of those images. The issue of actual damage is not such a problem because paragraph 9 of the 2008 scheme states that “injury” can be temporary mental anxiety, medically verified. Furthermore the victim does not have to be put in “reasonable fear of immediate physical harm” because this is a sexual offence. The real problem is persuading the Authority that a “crime of violence” has taken place.
The courts have said in various cases that this is a jury question. In LC v CICB a man exposed himself to a child. The Board rejected the child’s claim on the grounds that it was not satisfied on the particular facts of the case that she had been the victim of a crime of violence. The court said that indecent exposure could amount to a crime of violence but not necessarily so. It is submitted that child pornography is a crime of sexual exploitation, which can only take place by the abuse of children. The term “crime of violence” should reflect what is a modern problem. The harm done to the child is the repeated invasion of the child’s privacy and the creation of a market for such imagery which encourages its continued production and distribution.
The Government is currently consulting on all aspects of criminal injuries compensation; the writers feel however that the intention behind that consultation is to restrict claims rather than widen the ambit of the scheme.
– The Powers of Criminal Courts Sentencing Act 2000
Finally, under this Act a criminal court has the power to make a compensation order in respect of a victim of crime. Section 130 states that a court by or before which a person is convicted of an offence may on application or otherwise, make an order requiring the convicted person to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence. In the writers’ experience however this is a remedy which is rarely used or requested in abuse cases.
3.3 The person possessing the indecent image
We now come to the issue of the person who simply possesses the indecent image. He has never met nor abused the child but as argued above, he is helping to create a market for this material. The issue of a claim only arises when the victim finds out that the images are in his possession. With the possible exception of the Data Protection Act 1998 it is difficult to see how any claim could lie against the possessor of the images (remember the Act does not apply to data held for “personal affairs”). Should the law create a means of pursuing a civil claim akin to vicarious liability, where the possessor of an indecent image is held to be strictly liable for the Claimant’s damage?
This issue has come up in the United States, which enacted within the Violence Against Women Act 1994, a section entitled the Mandatory Restitution for Sex Crimes. This mandates the issue of a restitution order for victims of all acts of sexual exploitation. An order for restitution directs the Defendant to pay the victim the full amount of the victim’s losses as determined by the court, which includes the cost of medical treatment, lost income, legal costs and any other losses.
In the case of United States v Hesketh the Defendant, a former Pfizer executive had pleaded guilty to possession and distribution of child pornography, although he himself had not participated in the sexual exploitation that produced the material. The victim “Amy” had been notified by the authorities that her picture was amongst those found in his possession and she applied to the court for compensation for the effect that his criminal behaviour had on her. The court made a restitution award of $130,000 in her favour following a negotiated settlement with the Defendant. Amy went on to receive further larger awards from other courts in the United States, when her image was discovered in the hands of other Defendants.
Unsurprisingly great concern has been expressed about the implications of these judgments. The original 1994 Act defines a “victim” as an “individual harmed as a result of a commission of a crime” but it does not appear to require that the victim be a person “directly and proximately harmed”. Therefore it is arguable that any kind of “harm” resulting from a qualifying offence is sufficient to create victim status. However other courts in the United States have held that there has to be some kind of causal connection between Defendants who possess pornographic images of children and the victims.
4. And finally…
Child pornography is an industry that thrives on human suffering of the most appalling kind. The law should strain to provide compensation for those children who have been its victims, not simply for the abuse that they suffer but the fact that their suffering is repeated time and time again in cyberspace. Claimant lawyers must be inventive to claim damages within our current system. The campaign to change the law to make it easier for Claimants to obtain proper redress starts here!
This paper was written by Malcolm Johnson (Blake Lapthorn) & Jonathan Wheeler (Bolt Burdon Kemp)
