THE TRIVIALISATION OF THE ONLINE SEXUAL ABUSE AND

EXPLOITATION OF CHILDREN BY SOUTH AFRICAN COURTS

“International Fury as SA court lets paedophile go scot-free.” The

Budapest Report that Pretoria Court Magistrate Peet Johnson
refused to view the evidence “despite the fact that they were
graphic images allegedly showing hard-core pornography
involving children as young as one-year-old” because “child
pornography is child pornography” reveals a disturbing ignorance
of the stark reality of child pornography.....

Child abuse images have become more violent, more

extreme and of younger children, including toddlers. Child
pornographers keep pushing the boundaries. In a recent case in
Ireland, a paedophile was found with images of an attempt to
orally rape an infant child with its umbilical cord still attached, as
well as pictures of a two-month baby girl in a nappy being raped1.
More recently, a former US Army Major, Daniel Wolverton, was
jailed after being found guilty of raping, and videotaping, an
infant boy only three months old2.

The recent case of Derek Maurice Hills, (reported in The Witness),

raises the same questions and concerns discussed in 2007, following S vs
Rawlinson Case No. 041/3019/05 and Bret Stevens and the State Case No.
CA & R 54/07: that decisions of South African courts in cases involving
child pornography continue to reflect an ongoing diminishing of the
judiciary’s views about the serious effects, on the victims, their families
and society itself, of the creation, production, distribution and possession
of child abuse materials.

Derek Maurice Hills, convicted on 24 counts of the possession of

child pornography, was sentenced to five years imprisonment, suspended
on condition that he serves three years under correctional supervision
during which he must perform 288 hours of community service.

In June 2005, Rawlinson was arrested on charges of the rape and

indecent assault of a 12-year-old girl. At his trial, he admitted to
accessing, viewing and downloading child pornography from the Internet.
Rawlinson was convicted for unlawful possession of almost one thousand
images of child pornography and was sentenced to 8 years imprisonment,
with 5 years suspended for 5 years. Effectively, he faced a maximum of 3
years in prison. (Good behaviour will reduce that time.) But the children
who were sexually abused and brutalised to satisfy his sexual perversion
are not so lucky. It will take a lifetime, if at all, for them to recover from
the emotional, psychological and physical trauma that was suffered upon
them in the creation of child pornography. And it will, in all probability,

1
See Child Porn: Underground, online and in your street
2
WUSA9.com
take as long for the families of these children to recover from the trauma
that they too suffer when their children are so abused. This would seem
an exaggeration only to those who have had the good fortune neither to
have had their children sexually abused and brutalised nor been exposed
to child abuse images.

On 5 April 2007, a newspaper report of a child pornography case

confirmed public disquiet about the contribution of courts in South Africa
to the trivialisation of one of the most despicable crimes against children
and society. According to the report, two Newlands East men picked up a
15-year-old girl, took her to a park, drank alcohol and smoked marijuana.
They then indecently assaulted the girl, with the one using a mobile
cellular phone to film the indecent assault by the other, and then being
filmed by another friend while he indecently assaulted the girl. Both men
entered into a plea bargain and were given 5-year sentences, wholly
suspended for five years, and a R10 000 fine each, for indecent assault
and the creation, production and possession of child pornography. The
newspaper also reported that the 20-second video clip of the girl, dressed
only in her school shirt, was widely distributed among school children.

The case of Brett Stevens and The State was another example of
the trivialisation of child pornography by South African courts. Stevens
was convicted on 2 counts of the indecent assault of a minor and 8 counts
of the creation and possession of child pornography. He was sentenced to
8 years imprisonment, with 3 years conditionally suspended for 5 years -
another example of the “slap-on-the-wrist” sentences typically handed
down by South African courts in child pornography cases. On appeal
against the sentence, the Learned Judge found that “there was no
evidence that the girls suffered any physical harm, nor is there any
evidence that either of the girls showed any serious signs of psychological
harm until the time of the trial” and reduced the sentence to 6 years, with
2 years conditionally suspended for 5 years!

One cannot help but come to the conclusion that South African
courts believe that child pornography is a victimless offence – in contrast
not only to sentencing policies for similar offences but also to the
observations of the judiciary in the United Kingdom and the United States.
In a recent case, for instance, where a 36-year-old Surrey man was given
a custodial sentence of thirteen and a half years after pleading guilty to
11 charges, the UK Surrey Provincial Court Judge said that the images
involved in the case were “.....wrenching and, frankly, agonizing to
watch......a gross and continuing violation of the personal
integrity and privacy of the child that cannot be adequately
described in words..... to describe this material as disturbing
would constitute a significant understatement ....the most
disturbing aspect of the photographs and videos are the large
number involving infants ...the possession of child pornography
is not a victimless crime. It is an inherently serious, harmful and
insidious offence, regardless of whether it involves any
distribution. Those who possess child pornography encourage the
production of such material by providing a market for it even
without the exchange of monies. Thus, they directly contribute to
the harm caused to children in its production. The Internet has
exponentially facilitated access to child pornography to a degree which is
frightening.”

And more recently, the Federal Appeals Court in Atlanta, Georgia,

USA, in its ruling that a Georgia man, sentenced to five years in prison and
ordered to pay restitution amounting to $12 700-00 to one of the victims
after being convicted of the possession of child pornography, held that:
“Like the producers and distributors of child pornography, the
possessors of child pornography victimize the children depicted
within. The end users of child pornography enable and support
the continued production of child pornography. They provide the
economic incentive for the creation and distribution of the
pornography, and the end users violate the child's privacy by
possessing their image. All of these harms stem directly from an
individual's possession of child abuse images”.

The fight against the online sexual abuse and exploitation of

children is complex and there cannot be any significant advances without
the support of the judiciary. As the advice of United Kingdom’s Sentencing
Advisory Panel to the Court of Appeal on Offences Involving Child
Pornography, "…..it is fundamental ….that sentencing for these
offences should reflect the harm suffered by children who are
abused and exploited by the production and distribution of
indecent photographs. An offender sentenced for possession of
child pornography should be treated as being in some degree
complicit in the original abuse which was involved in the making
of the images. Sentences for possession should also reflect the
continuing damage done to the victim or victims, through copying
and dissemination of the pornographic images. Those who make
or distribute the images bear a more direct responsibility for
their eventual use, as well as for encouraging further
production."

One would look in vain for a reflection of such a response to child

pornographers in the judgments and sentencing policies of South African
courts – despite section 28(1)(d) of the Constitution which affirms the
right of every child to be protected from maltreatment, neglect, abuse
and degradation. Child pornography is the maltreatment, neglect, abuse
and degradation of all children. Child pornography is not just a serious
criminal offence but also a direct violation of every child’s right to
protection.

Why is the sexual abuse and brutalisation of children, and the

exploitation of that abuse and brutalisation through the creation and
distribution of child pornography, regarded as so trivial an offence that not
only are sentences for convicted child pornographers mere “naughty-
naughty-slaps-on-the-wrists”3 but there is hardly a whisper of outrage
from the public? Does this deafening silence – this betrayal of all children
- suggest that the public agrees with the leniency with which paedophiles
and child pornographers are treated by South African courts? If that is the
case, then consider this: even as you are reading this, somewhere a child,
maybe even a toddler in nappies, is being sexually penetrated by a brute
of a “man”, while another brute is photographing the crime for distribution
over the Internet. That picture is, in fact, sitting on your computer and all

3
Compare, for instance, sentences handed down to those convicted of the possession of
child pornography in the United States: (1) Round Rock Man Gets 2 Life Sentences for
Child Pornography - “Round Rock Police obtained a search warrant of Baley's house and
seized several computers that contained 1500 photographs and 50 video clips of graphic
child pornography”; (2) The Eagle Times, Claremont, NH, USA. A Vermont man will spend
the next 13 years in prison after he pleaded guilty to transporting child pornography
across state lines; (3) Detroit Free Press, Detroit, MI,USA reported that Mariscal was
sentenced by a federal judge to 100 years in prison for producing, importing and
distributing child pornography; (4) Korea Times, Seoul, South Korea - an Arizona man
who received a 200-year prison sentence for possessing 20 pornographic images of
children failed on Monday to persuade the Supreme Court to have his sentence reduced;
(5) KHQ Right Now, Spokane, WA, USA had a report of 66-year-old Thomas Herman who
was sentenced to 10 years in prison in federal court after pleading guilty
to one count of possession of child pornography; (6) Muncie Star Press, Muncie, IN,USA.
Rinehart, 33, pleaded guilty before Judge David F. Hamilton to two counts of producing
child pornography and was sentenced to 15 years in prison; (7) Frederick News Post,
Frederick, MD, USA reported that a Frederick man whose computers contained
thousands of images of child pornography accepted a plea agreement that put him in
jail for 18 years ; (8) Appleton Post Crescent, Appleton, WI,USA. A 32-year-old Oshkosh
man faces up to 575 years in prison and $2.3 million in fines if convicted on 23
counts of possessing child pornography; (10) Justin Fritscher ,
jfritscher@jackson.gannett.com, November 25, 2010” Porn charge could bring 200
years: Images of children found on computer brought in for repair - a convicted sex
offender arrested Tuesday night could face a 200-year prison sentence, if convicted,
after five images of child pornography were found on his computer, Madison-Rankin
District Attorney Michael Guest said; (11) http://amplify.com/u/bne2x, Production of Child
Pornography Results in More Than 27 Years in Prison for 23-Year-Old Austin Man , (12)
http://www.news-gazette.com/news/courts-police-and-fire/2011-01-11 -Urbana-man-
sentenced-20-years-child-porn-case.html and (13) Man possessed 'astronomical
amount' of child pornography faces 2114 years in jail -
http://www.whptv.com/news/local/story/UPDATE-Disturbing-child-porn-collection-
contained/bEUH, 20 January 2011.
In contrast, sentences imposed by South African courts are as follows: (1) Two
Newlands East men get 5 year sentences, wholly suspended for 5 years, after
pleading guilty to the creation, production, possession and distribution of child
pornography and indecent assault; (2) Man who claims to have child pornography for
research sentenced to a fine of R24 000, half of which was conditionally
suspended. The magistrate agreed to a deferred fine of sixteen monthly payments of
R750.00; (3) Teacher found guilty of possession of child pornography and exposing
children to pornography sentenced to 5 years imprisonment suspended for 5 years;
(4) Man who indecently assaulted his own daughter and took pornographic pictures of
her over a period of two years sentenced to 7 years imprisonment; (5) “Father
Christmas” guilty of indecent assault, exposing children to pornography and possession
of child pornography sentenced to 5 years imprisonment; (6) Man found guilty of four
counts of creation and possession of child pornography and of exposing children to
pornography sentenced to 5 years in prison; (7) Teacher found guilty of possession of
180 minutes of video recording, 265 digital movie clips, 16 slides and 626 still images of
it will take is a simple search and a click of a button for it to appear on
your computer screen.

The problem, in understanding what child pornography is all about,

seems to be the failure to separate rhetoric from reality, a problem
exacerbated by the expression itself. The reality is that images of the
abuse, brutalisation and torture of children has nothing to do with
pornography. “Pornography”, as is commonly understood and defined in
jurisprudence, is an image of sexual conduct, involving consenting adults,
that stimulates sexual (erotic) rather than aesthetic feelings. Pornography
is a “freedom of expression” issue and a legitimate subject for debate.
Child pornography is not a freedom of expression issue. An image
of the sexual abuse of a child is, in fact, a crime scene – it is evidence of a
serious crime against a child. Twinning the meanings of “child” and
“pornography” to define “child pornography” makes about as much sense
as twinning the meanings of “baby” and “shower” to define a “baby
shower”4. There is as much a connection between “baby”, “shower” and
“baby shower” as there is between “child”, “pornography” and “child
pornography”! The production and use of child pornography must be seen
and understood as “......one practice within a repertoire of child sexual
abuse”.5 Child pornography consists of images and descriptions of child
abuse.6

No matter how cynical they are, few, except those who have to
endure the trauma of having to deal with such deeply upsetting materials,
know the reality of child pornography. It is not just about naked children.
And it is not just about adults having sex with children, even babies. It is
the rape, brutalisation and torture of children, including toddlers. As
child pornography and indecent assault of children sentenced to 6 years
imprisonment; (8) Man court finds to be a homosexual paedophile sentenced to 2
years imprisonment, with 1 year suspended, for possession of child pornography
and (9) Man found guilty of the indecent assault of two minor children and the creation
and possession of 71 images of child pornography has sentence reduced to 6 years
imprisonment, with 2 years suspended for 5 years
4
See Tasco Luc de Reuck v Director of Public Prosecutions and Others, Case CCT 5/03
5
Rhetoric and Realities: Sexual Exploitation of Children in Europe (2000), Professors Liz
Kelly and Linda Regan
6
In an article (One Step Forward, Two Steps Back, published in the Sexual Offences and
Community Affairs 2008-2009 Bulletin) on the Constitutional Court’s judgment in what is
usually referred to as the de Reuck case (CCT 5/03), I argued that the definition of “child
pornography” by the Constitutional Court was not only flawed but inconsistent with the
definitions adopted by all other jurisdictions, as revealed in some of the leading cases
(See, especially, New York v Ferber, 458 U.S. 747 (1982); R v Sharpe [2001] 1 S.C.R and
US v Matthews 209 F.3d.338 (4thC 2000), international organisations, and as defined in
certain conventions, as well as the definition in the Films and Publications Act, 1996,
which echoes Parliament’s clear intention to make the prohibitions on child pornography
absolute. The Constitutional Court’s definition of “child pornography” with reference to
the Oxford Dictionary definition of “pornography” and twinning that with the meaning of
a “child” is, to put it mildly, absurd and a display of gross ignorance about the reality of
child pornography. It is as absurd as trying to define “baby shower” by twinning the
definitions of “baby” and “shower” to arrive at a meaning which suggests that a “baby
shower” means an infant having a bath.
Michael Malone of ABC News observed: “This is the very heart of
darkness. These are images that are more than shocking and repulsive.
They kill your soul because you know that every poor child you see on
those sites is dead. If not now at the hands of a sadist, then decades from
now from alcoholism, drugs or suicide....The pictures first make you sick,
then angry and finally homicidal.”

Child sexual abuse and exploitation investigators and prosecutors

have expressed deep and continuing frustration with the sentencing
policies of South African courts. I know of at least one prosecutor with
valuable prosecution experience who, frustrated and disappointed with
some of the sentences handed down in child pornography cases, moved
out of prosecution, because: “Sentencing policies in our courts are a
betrayal not only of children but of the hard work put in by police and
prosecutors in cases which also have a psychologically-traumatising effect
on us. And I am told that magistrates are not prepared to attend the very
informative workshops and seminars on child pornography organized and
presented by the NPA because they are “a class above prosecutors and
police.” Whether or not that is true is beside the point. What matters is
that the judiciary, it seems, is not involved in what are really continuing
education programmes on issues critical to the development of a rights-
based society. There can be no proper interpretation and application of a
law if there is no proper understanding and appreciation of the subject-
matter of that law. The subject-matter of section 24(B) of the Films and
Publications Act (and sections 10 and 19 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act) is child pornography and
is a direct response to the constitutional right of children to be protected
from maltreatment, neglect, abuse and degradation as expressed in
section 28(1)(d) of the Constitution. The protection of children and women
from sexual abuse, degradation and exploitation is critical to the
promotion of a rights-based South Africa.

The findings and estimates of international organisations about the

extent and scope of child pornography is not irrelevant to South Africa for
a very simple reason. Images of child abuse are traded and exchanged
mainly, and almost exclusively, through the Internet and mobile cellular
phones. The reasons for the Internet as the preferred medium of
paedophiles is not important for the purpose of this paper. What is
important is to understand that the Internet does not exist in a particular
country or geographical location. Simply put, in so far as access to it and
all that it contains is concerned, is that it exists on every computer no
matter where located. All that is needed to access whatever information is
available on the Internet, from any part of the world, is a computer, a
modem and a telephone. Even the skills needed to access the Internet
have been made so basic that even very young children are able to
access the Internet. Given this nature of the Internet, an increase in the
availability of child abuse images on the Internet is an increase in such
availability in every part of the world.
 Until the 2004 amendment, the creation, distribution, production
and possession of child pornography constituted a single offence, with a
maximum of 5 years imprisonment. However, Parliament, concerned at
the increase in incidents of the sexual abuse and exploitation of children
in pornography, both nationally and internationally, amended section 27
of the Act in two important respects. Firstly, Parliament created
possession, creation, importation and distribution as separate offences
and, secondly, increased the permitted maximum to 10 years for each
separate offence. The permitted maximum for section 27(1)(a), amended
as section 24B(1) is, therefore, 40 years. However, the maximum could,
in fact, be higher. Each separate image of child pornography may be
charged as a separate offence, since each image is created7 individually
and separately. According to the judgment, Stevens created 71 images of
child pornography, and, therefore, could, and should, have been charged
with 71 counts under section 27(1)(a)(i) and 71 counts under section
27(1)(a)(ii). Stevens would then have been facing a maximum of 710
years under section 27(1)(a)(i) and 710 years under section 27(1)(a)(ii)8.
Even taking all counts as one for purpose of sentence, Stevens should
have been facing a maximum of 20 years and not 10 years on the child
pornography conviction.

Given the global nature of the trade in child pornography, and the
fact that all offenders in all countries access and download the same
images from the same sites, the differences in sentencing policies is
disturbing.

Responding to calls from law enforcement agencies faced with

jurisdictional barriers in the efficient investigation, prosecution and
punishment of child pornography offenders, many Governments have
been talking about the need for the harmonisation of child pornography
laws. For instance, according to research by the International Centre for
Missing and Exploited Children, many countries have no or very
inadequate laws on child pornography. (To our Government’s credit, South
Africa was identified as one of only five countries with a comprehensive
legislative response to child pornography, together with Australia,
Belgium, France and the United States.) The Budapest Cybercrime
Convention set out what is regarded as the minimum requirements for
any law dealing with child pornography. A number of countries have
joined together in a Global Task Force on Child Pornography on the
Internet. But all of these initiatives have not resulted in the harmonisation
of national legislations. Many countries with inadequate or no laws

7
It should be noted that the act of downloading an image of child pornography from the
Internet will constitute both the offences of the creation and possession of that image
8
The possibility of a sentence of 710 years imprisonment may sound absurd. But is it?
In January 2007, the “Appleton Post Crescent” of Appleton, WI, USA, reported that a 32-
year-old man was facing up to 575 years, and $2.3 million in fines, if convicted on 23
counts of possessing child pornography, while the “Korea Times” of Seoul, South Korea
reported that the Arizona Supreme Court upheld the 200-year prison sentence of an
Arizona man convicted for possession of 20 pornographic images of children. Stevens
created, and was in possession of, 71 child pornography images
against child pornography provide safe havens for those profiting from the
trade in the sexual abuse and exploitation of children.

Harmonisation is frustrated by a number of factors, including

cultural attitudes towards intergenerational sex. There are problems with
the definition of a “child”, as well as problems with what will constitute
child pornography. In the United States, for instance, “virtual” child
pornography is not an offence since no child was harmed in its creation.
In South Africa, child pornography includes images as well as descriptions.
Not so in many countries. Harmonisation of child pornography laws is a
very long way away. The lack of harmonisation of laws to combat one of
the most heinous crimes against children stands in stark and chilling
contrast to the harmonisation of the child pornography industry by
Internet and mobile phone paedophiles and child predators.

Courts, however, have an opportunity to harmonise sentencing in

child pornography cases, without having to submit to any bureaucratic
protocols. It is not difficult to find points of similarities in child
pornography cases: the same or substantially similar number of the same
type of images downloaded from the same websites by perverts in
different countries.

There is no impediment to the harmonisation of sentencing policies.

Courts, therefore, have an opportunity to make a major contribution to the
harmonisation of child pornography laws and enhance the protection of all
children from sexual abuse and exploitation.

In the meantime, however, South African courts should pay

attention to the frustrations expressed by the general public and child
protection practitioners about the “slap-on-the-wrist” cautionary
sentences handed down to convicted paedophiles and child pornography
offenders. It is time members of the judiciary, including judges but
especially magistrates, participate in continuing education programmes
about the true nature of child pornography, even if organized and
presented by those of a “lower” status, so that their sentencing policies
will reflect, more appropriately, the seriousness of these crimes against
young people, children and infants.

Section 39 of the Constitution should be the starting-point for South

African courts to make a significant contribution to the harmonisation of
child pornography sentencing policies. Subsections (1)(b) and (c) clearly
provide that, when interpreting the Bill of Rights, a court, tribunal or
forum must consider international law and may consider foreign law. The
Bill of Rights is not irrelevant when dealing with the sexual abuse and
exploitation of children: section 28(1)(d) enshrines the right of every child
to be protected from maltreatment, neglect, abuse or degradation.

There are a number of issues related to the creation, possession and

distribution of digitally-created child abuse images that seem to be
ignored in decisions of South African courts.
 For instance, there does not seem to be a proper understanding and
appreciation of the stark reality of child pornography, resulting in
sentences which suggest that child pornography is a victimless crime.
The judgment of the UK Surrey Provincial Court Judge in a recent case is
worth repeating: “.....the possession of child pornography is not a
victimless crime. It is an inherently serious, harmful and insidious
offence, regardless of whether it involves any distribution. Those
who possess child pornography encourage the production of such
material by providing a market for it even without the exchange
of monies. Thus, they directly contribute to the harm caused to
children in its production.”

The possession of child abuse materials should be seen as falling

within the scope of what is defined as depraved indifference
recklessness or reckless endangerment in the United States.
Depraved indifference or reckless endangerment describes conduct which
is “so wanton, so deficient in a moral sense of concern, so lacking in
regard for the life or lives of others, and so blameworthy as to warrant the
same criminal liability as that which the law imposes upon a person who
intentionally causes a crime9. Depraved indifference focuses on the risk
created by the defendant’s conduct, not the injuries actually resulting.”

Depraved indifference refers to a person’s state of mind in

recklessly engaging in conduct which creates a grave risk of harm –
conduct that shows utter disregard for the value of human life not
because such a person means to cause harm but because he or she
simply does not care whether or not such conduct will lead to harm.
“Depraved indifference to human life reflects a wicked, evil or inhuman
state of mind, as manifested by brutal, heinous and despicable acts. It is
evinced by conduct that is wanton, deficient in a moral sense of concern,
and devoid of regard for the life or lives of others” According to the
judgment in the Suraez case, “.....depraved indifference is best
understood as an utter disregard for the value of human life– a willingness
to act not because one intends harm, but because one simply doesn't
care whether grievous harm results”.10

The creation, distribution and possession of child pornography is a

brutal, heinous and despicable act and certainly amounts to depraved
criminal indifference and reckless endangerment in so far as the lives of
children are concerned.

Another problem is the lack of understanding the technology of

digital images – by both the courts and prosecutors. Take the statement
of the High Court (Natal Provincial Division) in the matter of the Koralevs
and the State11, for instance: “We are also not in agreement with the
finding by the learned Magistrate that the images were ‘original’
9
Echoing the advice of the UK Sentencing Advisory Panel that an offender sentenced for
possession of child pornography should be treated as being in some degree complicit in
the original abuse which was involved in the making of the images
10
6 N.Y. 3d. And see, also, People v Register, 60 N.Y. 273, 469 NYS2s 599 and People v
Russell, 91 NY2d 280, 287
images as it is common cause that these images were either
downloaded from the Internet or transferred from a digital
camera. The original images therefore would be those contained
on the camera disc or the original source from which it was
loaded onto the Internet site”!!!

Until the introduction of digital technology, the traditional image

captured by photography is an analogue image. A digital image,
however, is a numerical representation recorded simply as a
series of binary digits (bits) – either one or zero with no value in
between. The image is captured, in batches of ones and zeroes, by being
focussed onto an electronic sensor made up of individual light-sensitive
elements called pixels or picture elements. Unlike analogue images,
digital recording technology provides no original image that could be
produced in evidence. An analogue image always has an original, either in
a negative or positive format, from which copies may be produced. For a
digital image, the “original” consists of data recorded in memory, from
which an image can be generated and because the recorded image is
represented as a finite set of numbers, exact copies may be made.
Therefore, any digital image can be thought of as being the “original”
even if it is produced from a copied set of data – every digital copy is an
identical replica.12

The fact that a digital image is stored and transmitted in

batches of ones and zeroes – the binary language of computers – is
significant not only in dealing with the issue of “originals” but also in so
far as creation is concerned – something that prosecutors do not seem to
appreciate.

The prohibition on the creation of child pornography, read with the

definition of “visual presentation”…..”produced through or by means of
computer software on a screen or a computer printout” means that the
downloading of child pornography from the Internet, or mobile cellular
phone, is an act of creation. There is a fundamental difference between
digital transmission and “analogue transmission.” Digital transmission of
data involves the binary language of computers. What is actually
transmitted is data in batches of zeroes and ones and it requires a
conscious use of computer software to decode an image transmitted in
zeroes and ones into an analogue image. When downloading an image
from the Internet, that image is nothing more than batches of zeroes and
ones until one intentionally uses computer software to convert the zeroes
and ones into an analogue image visible on the computer screen. Thus, a
person who downloads child pornography from the Internet is creating an
image from batches of zeroes and ones. The ordinary meaning of the word

11
Case No. AR50/05. Vladimir Koralev and his wife Elena were both convicted on charges
of possession of child pornography by the Durban Regional Court but their convictions
were overturned on appeal by the High Court (Natal Provincial Division)
12
US law provides that printouts of data stored in a computer are “original” under Fed. R.
Evid. 1001(3)
“create” is “to cause to come into existence” and downloading from the
Internet clearly causes an image to come into existence.13

A person in possession of child pornography downloaded from a

computer or mobile phone should therefore be charged with two separate
offences – that of the possession and the creation of child pornography.

“Abusers and abused alike tell us the same story. Child

sexual abuse is all around us: in our homes, in our streets, in our
towns and cities throughout the world. Child pornography is the
currency of that abuse. We can no longer bury our heads in the
belief that our own children are safe or that the civil liberties of
the paedophile are more valid than those of his victim. Ten years
ago, incest was the unspoken crime gnawing at the foundations
of childhood. Five years ago we came to terms with the reality of
the outsider abuse and organised paedophilia. Child pornography
is the latest battle to fight, and one we must win at home and
abroad. There is, quite simply, no alternative.”14
I mean no disrespect to the judiciary and I think highly of many of
those who sit in judgment in our courts. But, to borrow (freely) from
Patrick Henry,15 different people often see the same subject in different
lights. “Therefore I hope that it will not be thought disrespectful to the
judiciary, if, entertaining as I do opinions of a character very opposite to
it, I shall speak my sentiments freely and without reserve. Should I keep
back my opinions, through fear of giving offense, I should consider myself
guilty of an act of betrayal of all children.”

Iyavar Chetty
January 2011

13
See R v Jonathan Bowden, The Times, 19 November 1999. “The wording in s.1 of the
1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a
photograph or a pseudo-photograph. The words ‘to make’ had to be given their natural
and ordinary meaning, and in the instant context that was ‘to cause to exist; to produce
by action, to bring about’. By virtue of s. 7 of the 1978 Act that meaning applied to
negatives, copies of photographs and data stored on computer disc. A person who
either downloaded images onto disc or who printed them out was making
them. To download or print the images within the jurisdiction was to create
new material. The reproduction of indecent material to be found on the Internet was
within the mischief aimed at by legislation when the 1978 Act was amended by adding
the words ‘to make’”. See, also, R v Jayson [CA (2002) EWCA Crim 683] in which the UK
Criminal Court of Appeal held that “the act of downloading from a webpage onto a
computer is an act of making a photograph”. And see the opinion of the Michigan
Appeals Court in the case of Michigan v Brian Hill. After reviewing the dictionary
definition of the word make, the circuit court stated that the bottom line was that,
following the mechanical and technical act of burning images onto the CD-Rs, something
new was created or made that did not previously exist. Peter Pollack, Michigan child porn
case might have wider reach, January 2006. And see “Downloading porn is making it” at
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA
14
Child pornography: an investigation, Tim Tate, Metheum (1990)
15
Patrick Henry’s “Give me liberty or give me death” speech on 23 March 1775, in
Virginia, USA