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Criminalising Pathology: Child Pornography And The Law

Andy Muirhead was, for a while, one of the ABC’s most popular figures. The affable presenter of television programme Collectors, he also had a gig on Tasmanian radio and did a bit of stand-up comedy on the side. That all came to an abrupt end two years ago with the news that he had been charged with accessing child pornography.

At the time of writing, his trial is in its final stages. Muirhead has entered a guilty plea and awaits sentencing. His counsel has argued for a suspended sentence; it seems more likely that he will see time in prison.

Regardless of the result, his media career is over. Child pornography, after all, is one of the most reviled phenomena in our society; a spectre so loathed that it has granted more than one overseas government a mandate to regulate the internet. Given cultural attitudes towards paedophilia, it is unsurprising that there is little outcry against the punishment of those who consume it.

Nevertheless, Muirhead is not himself an exploiter of children. There is no suggestion that he has provided financial support to producers of child pornography; nor has he participated in the creation of such material. This is not to say that those who download child pornography ought to be considered morally unaccountable — supply, of course, requires a demand — rather, perhaps, that their status as criminals should be reconsidered.

In Australia, the maximum penalty for viewing child pornography is 10 to 21 years in jail. One or two years’ imprisonment and a place on the sex offenders register is a more common sentence; needless to say, the blow to social standing is immeasurable. In Muirhead’s case, the mere fact of his being charged was sufficient for the ABC to immediately remove all trace of him and his programme from their website and television schedule. It seems unlikely that a financial crime or case of non-sexual violence would have provoked such a swift reaction; evidently, child pornography remains one of our society’s biggest taboos.

That is not to say that Australian child pornography legislation has been completely immune from criticism. The severity of the criteria has attracted some notoriety. Convictions have been recorded for possession of cartoon images and 19th century literature. The term ‘child’, in this context, can still be used to refer to anyone up to the age of 18; ‘pornography’, too, gains a somewhat more elastic definition. Clearly, there are grounds for reform.

Muirhead’s case is not so simple. The prosecution has alleged that he was a habitual child pornography viewer, with a few of the images being described as “sadistic”. There can be no doubt that the law is right to view the production of this kind of material as especially heinous; but what of its consumption? It is not illegal in any meaningful way to view footage of, say, beheadings or violent assaults; and yet, this kind of material also depicts awful crimes. Why should images of child abuse be treated so differently?

A primary reason is that child pornography is viewed as a means for normalising paedophilia — that is, it is seen to belong on a continuum beginning with sexual desire and ending with child abuse. Devoting funds to monitor child pornography access is intended as a preventative measure: paedophiles can be captured before they get the chance to enact what they see. There is, it must be said, a major flaw in this argument. Whilst it is true that many child molesters have a history of accessing child pornography networks, it would be an elementary logical fallacy to infer that an equivalent proportion of those who consume the content will necessarily go on to abuse children. As with any human behaviour, the potential to abuse can be controlled by various inhibiting factors — for instance, shame, empathy or fear of repercussions — and the mere existence of sexual desire, as powerful as it can be, is no guarantee of it being acted upon. To ignore this distinction is to criminalise the individual before any harmful action has actually been committed — Minority Report logic at its best.

Nevertheless, it would be foolish to ignore child pornography use as a potential red flag. Clearly, any avenue for prevention of child abuse must be explored, and monitoring usage is one potential method. It is disappointing, however, that no alternatives to the criminal justice system seem to be under consideration. Left unchecked, many psychiatric disorders carry risk of harm; it is not, however, against the law to be diagnosed with a disorder. Aside from its highly taboo status, there is little reason why paedophilia, like any other high-risk pathology, should not be handled by medical professionals and counsellors — ideally, long before any children have been victimised. If a more open paradigm were in place — one in which people concerned about problematic desires felt safe to seek out confidential professional help, and specialised services existed for this purpose — we might begin to see a far more effective and progressive means of child abuse prevention.

In contrast, the justice system can only ever be reactive; only capable of response after the fact. Criminalising child pornography access in the hope of catching a few future child molesters is, at best, a crude form of prevention. In reality, it only serves to further marginalise a condition that can and should be managed in a clinical environment.

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David Heslin

The author David Heslin

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