File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Child Pornography: A Comparative Analysis

The word pornography  comes from the Greek  pornographic  literally meaning writing about prostitutes. One of the commonly accepted definitions of  pornography  in modern times defines it as sexually explicit material (verbal or pictorial) i.e. primarily designed to produce sexual arousal in viewers. When value judgments are attached to this definition, pornography is perceived as sexually explicit material designed to produce sexual arousal in consumers that is bad in a certain way.

Child pornography is publishing and transmitting obscene material of children in electronic form. In recent years child pornography has increased due to the easy access of the internet and easily available videos on the internet. Child pornography is the most heinous crime which occurs and has led to various other crimes such as sex tourism, sexual abuse of the child, etc.

Child pornography laws provide severely penalties for producers and distributors in almost all Western societies, usually including incarceration, with shorter duration of sentences for non-commercial distribution depending on the extent and content of the material distributed. Convictions for possessing child pornography also usually include prison sentences, but those sentences are often converted to probation for first-time offenders.

INTERPOL has cited Germany as one of the major producers of child pornography, with the Netherlands and the United Kingdom as the major distribution centers. The United States is one of the largest markets of demand for child pornography, though more interest has shifted to Southeast Asia in recent years. The development of child pornography is fuelled by mainly two factors, the inception, and availability of home movies, videos, digital cameras, computers, and software, which made the making of child pornography relatively cheap and secondly, the development of the Internet technology, which has increased ease of production and distribution of this material to amazing heights.

Literature Review
Child pornography is increasingly prevalent in today’s society and is now one of the fastest-growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape and can be, therefore, similarly responsible for the perpetual victimization of innocent youth. How pornography should be regulated is one of the relations of the most controversial topic to the Internet in recent years. The widespread availability of pornography on the Internet has stirred up a moral panic shared by the government.

There have been many attempts to limit the availability of pornographic content on the Internet by governments and law enforcement bodies all around the world. Sociological theories of deviant behavior have not been systematically applied to the problem of who uses and who does not use cyber pornography on the Internet.

Making laws is not the same as enforcing them. While sufficient anti-child pornography laws exist in many nations, enforcement is weak. Furthermore, policing a global operation like the Internet involves policing citizens from countries with widely differing domestic laws, cultures and social mores. Although these obstacles appear insurmountable, it must be remembered that child pornography is a substantive and compelling problem on international, national, and local levels, and it is not a harmless crime.

A greater number of child molesters are now using computer technology to organize, maintain, and increase the size of their child pornography collections. Personally‐manufactured illegal images of children are especially valuable on the Internet, and oftentimes molesters will trade images of their sexual exploits. When these images reach cyberspace, they are irretrievable and can continue to circulate forever; thus, the child is revictimized as the images are viewed again and again.

The Internet has created an exciting, new world of information and communication for anyone with access to online services. While this technology offers unparalleled opportunities for children and adults to learn about the universe in which we live, it has also had an immeasurable impact on the sexual exploitation of children, specifically through the distribution of sexually exploitive images of children.

The the rapid growth of the internet and technology has resulted in the rise and availability of child pornography in India. In light of these technological advancements and otherwise, the Indian Government has enacted various reforms to strengthen the legal frameworks.

India had blocked around 857 pornographic websites in 2015 because of the concerns about child pornography. This particular decision was taken under the Information Technology Act and in consonance with Article 19(2) of the Constitution of India that allows the government to impose restrictions on the grounds of decency and morality. However, this complete ban was later lifted and only implemented to those websites containing child porn. Recently, again with the Department of Telecom has banned 827 sites due to illegal content on websites.

Definitional difficulties, as well as different cultural and social mores, create difficulties about devising an effective international framework for protecting children online. The problems are further compounded by different approaches that have been adopted about issues involving the exertion of criminal jurisdiction over activities conducted via the medium of the Internet, extradition and the obtaining of evidence.

No country is immune from this form of child sexual exploitation, and it will take a concerted effort from governments, law enforcement, and civil society to ensure that the world’s children are protected. India has tried that approach and criminalization of a complete ban on pornography adopt. It is essential that international obligations, child pornography segregated from adults and dealing with child pornography made more stringent.

Therefore as per my study, there are still lacunas in the criminalization of child pornography and my research is based to find that gap.

Research Questions
The research questions are as follows:
a. Whether the position regarding offense and punishment of child pornography in India is similar to all the major jurisdictions of the world?
b. If the answer to the above-mentioned case is no, then whether India has an advanced justice system for criminalizing child pornography?

Research Methodology
The research is Doctrinalin nature. The researcher has utilized primary as well as secondary sources of data.
The purpose of this study is to compare cyber pornography and the Penal Code relating to it in different countries.

Child and Pornography

Definition of  child,  for child pornography, as  anyone under the age of 18,  regardless of the age of sexual consent.

The legal age at which a person can consent to sexual activity varies from country to country, a challenging obstacle to the consistent and harmonized protection of children from sexual exploitation on the international level. While a person under the age of 18 may be able to freely consent to sexual relations, such an individual is not legally able to consent to any form of sexual exploitation, including child pornography.

Moreover, in circumstances that require  dual criminality - when a crime committed abroad must also be a crime in an offender’s home country for the offender to be prosecuted in his/her home country – agreement on a common age for what is a  child  is crucial. Any discrepancy could prevent a child sex offender from being prosecuted.

For these reasons,  child,  for purposes of child pornography legislation, should be defined as  anyone under the age of 18 years.

Definition of Child Pornography

Child pornography is publishing and transmitting obscene material of children in electronic form. In recent years child pornography has increased due to the easy access of the internet, & easily available videos on the internet. Child pornography is the most heinous crime which occurs and has led to various other crimes such as sex tourism, sexual abuse of the child, etc.
Child pornography may include actual or simulated sexual intercourse involving minors, deviant sexual acts, bestiality, masturbation, sadomasochistic abuse, or the exhibition of genitals in a sexually arousing fashion.
· Child pornography is defined by the Optional Protocol on the Sale of Children, Child prostitution and Child pornography as any representation of a child engaged in real or simulated explicit sexual activities or of the sexual parts of a child for primarily sexual purposes.
· Child pornography is the evidence of the sexual abuse of a child and the production of child pornography always presupposes a crime committed towards the child.
· Child pornography objectifies and degrades children.
· Child pornography maybe used by abusers as a means to manipulate a child by claiming that what is happening to the child in the picture is something that many children take part in. ( Linked to the 'Grooming Process' )
· Child pornography can lower the potential perpetrator’s inhibitions and allows the offender to minimize and distort abusive behavior. The perpetrator may use it as a justification of his abusive behavior.

Offender’s Use Of Child Pornography

Offenders use child pornography for many purposes. Five of the most common include:
· Create a permanent record for arousal and gratification.
· Lower children's inhibitions.
· Validate and confirm the child sex offender's belief systems.
· Blackmail victims and other co-offenders.
· Sell for profit or trade.

Child Pornography In India

The general provision relating to Child Pornography

Sexual abuse among children in India has grown rampantly over the years, and a recent report by the Ministry of Women and Child Development stating that more than 50% of children have been abused comes as an eye-opener. Sexual abuse of children has not been a new phenomenon, but has prevailed in society for a very long time. However, the attempts to check this phenomenon have been minimal, leading to a rise in child sexual abuse.

Even after repeated demand by various stakeholders to enact a new law to protect children, such demands fell on deaf ears. Finally, the Government of India after preparing a draft Bill in the year 2006, passed the Protection of Children from Sexual Offences Act, 2012. This special legislation ensures the protection of children from sexual offenses and finally allows for stricter punishment for such pedophiles.

There are various laws in India to protect and promote the children of the country. In the Constitution itself, Article 21 provides for the right to life and liberty, Article 24 does not allow children below fourteen years to work in a mine, factory or engage in hazardous employment. Article 39(f)makes it obligatory for the State to direct its policy towards securing the health and strength of children and to give them opportunities and facilities to develop healthily and Article 45 provides that the State shall endeavor to provide early childhood care and education to children below the age of six years. There also exist special laws for crimes against children, such as the Immoral Traffic (Prevention) Act, 1986, the Child Marriage Restraint Act, the Child Labour (Prohibition and Regulation) Act, 1986 and The Juvenile Justice (Care and Protection of Children) Act, 2000.

The Penal Code, 1860 and The Criminal Procedure Code, 1973 governs the substantive and procedural parts of criminal offenses, including those which apply to children. Since no
special provisions are governing the abuse of children, the same laws apply to the adults and children of the country. The laws governing sexual offenses include Sections 375 (rape), 377 (unnatural offenses) and 354 (outraging the modesty of women) under the Penal Code. There are also offenses against minor girls i.e. Section 366-A (inducement or force or seduce to illicit intercourse), Section 372 (selling of girls for prostitution) and Section 373 (buying of girls for prostitution). However, these laws are not comprehensive or adequate to handle such grave offenses on such tender-aged children. These provisions are also biased towards women and are not enough themselves either substantively or procedurally to meet the special needs of sexual abuse among children.

In spite of such general laws, the State of Goa passed the Goa Children's Act, 2003 to protect, promote and preserve the interests of children in Goa and to create a society that is proud to be child-friendly. The act divides the offenses into  grave sexual assault  which covers different types of intercourse- vaginal, oral, anal, use of objects, forcing minors to have sex with each other, deliberately causing injury to the sexual organs and making children pose for pornographic photos or films;  sexual assault  which covers sexual touching with the use of any body part or object, voyeurism, exhibitionism, showing pornographic pictures of films to minors, making children watch others engaged in sexual activity, issuing of threats to sexually abusing a minor, verbally abusing a minor using vulgar and obscene language; and  incest  which is the commission of a sexual offense by an adult or a child who is a relative through ties of adoption. Thus, this was the only legislation of India limited to Goa, where there were special laws to protect children from sexual abuse.

The lack of adequate laws was also mentioned in various cases before the Supreme Court of India. In Bachpan Bachao Andolan v. Union of India the petitioners wanted the intra-State trafficking of young children, their bondage and forcible confinements, regular sexual harassment and abuses to be made cognizable under the Indian Penal Code. The Supreme Court of India also made a referral to the Law Commission of India on matters of child sexual abuse.

However, the Law Commission of India did not suggest any changes to the Act and in its 156th Report laid out the difference between the applicability of Sections 375 (rape), 377 (unnatural offenses), and 354 (outraging the modesty of women).

The Law Commission stated that the cases of penile penetration were covered under Section 375, the unnatural offenses such as carnal intercourse against the order of nature with any man, woman or animal were taken care by Section 377 and the penetration of finger or inanimate object into the vagina or anus against the wish of a woman or female child would be covered by Section 354.

The justification given by the Law Commission was that the gravity of these various offenses were different and thus, the offenses mentioned under Sections 354 and 377 should not be brought under the clause of rape or be given such harsh punishment and thus there was no need to bring any new law into the picture. However, one feels that all the above-mentioned offenses are heinous and there should be stricter punishment imposed on such offenders.

In the absence of stricter guidelines for victim protection, the Supreme Court itself formulated various guidelines for the rape victim. The court stated that due to the inducement of extreme fear or due to the shocked State of the victim, the victim may not be able to give full details of the incident, which may lead to a miscarriage of justice. The questions thus posed to the victim in court may lead to embarrassment of the victim, due to which a victim may not be comfortable, and thus, the Court asked the Presiding Officer rather than the opposing counsel to pose the relevant questions to the victim.

The Court also asked the victims to be allowed breaks and ample time to answer the questions. The Court also suggested holding such trials in the camera, to make the victim more comfortable, and to ensure that the victim can answer the questions with ease, and so that the victim is not hesitant and is telling the truth.

Another reminder of our inadequate laws is the Report of the National Crime Records Bureau concerning child sexual abuse. The records show that a total of 5484 child rape cases were reported during the year 2010, an increase from 5368 in the year 2009, 679 cases of procuration of minor girls were reported in 2000 against 237 in 2009. 78 cases of buying girls and 130 cases of selling of girls for prostitution were reported in the year 2010 against 32 and 57 in 2009.

The study of Child Abuse by the Government of India in the year 2007 gave some shocking revelations. It was found that 53.22% of children had faced one or more forms of sexual abuse and 50% of such abuses were from persons known to the child or were persons in a position of trust and responsibility.

In the light of the grave situation facing children in India, today, the Protection of Children from Sexual Offences Bill was made in the year 2006 and was finally passed by the Indian Parliament in 2012.

Protection of Children from Sexual Offences Act, 2012
The Protection of Children from Sexual Offenses Act, 2012 was enacted with the object to protect the children from offenses of sexual assault, sexual harassment, pornography and to provide for the establishment of Special Courts for the trial of such offenses and matters connected therewith or incidental thereto. The Act derives its power from Article 15(3) of the Constitution of India, which empowers the State to make special provisions concerning children. Article 39(f) of the Constitution of India provides for the State to direct its policy to secure the tender age of children so that they are not abused and their childhood and youth are protected against exploitation. The State also aims to fulfill its acceptance of the Convention on the Rights of Child, which was acceded by India on 11-12-1992.

The Convention essentially highlights the measures that need to be undertaken by the State to prevent:
(1) inducement or coercion of a child to engage in any unlawful sexual activity,
(2) the exploitative use of children in prostitution or other unlawful sexual practices,
(3) the exploitative use of children in pornographic performances and materials.

At the same time, the Act aims to ensure the proper development of the children and aims to protect their privacy and confidentiality through the judicial process and to ensure the physical, emotional, intellectual and social development of the child.

Chapter 3 of the Act (The using of the child for pornographic purposes) is an offense

The term here means that the usage of the child in any such form of media including program or advertisement by television channels, internet or any other electronic form or the printed form which may or may not be for personal use or distribution may be an offense if it is used for sexual gratification.

This includes the representation of sexual organs, usage of a child in real or simulated sexual acts or indecent or obscene representation of a child. The Act mandates a punishment of a maximum of five years and in the second conviction this may extend up to seven years with a fine. If the person also takes part in such an act that constitutes the abovementioned sexual acts/assaults, he would be liable for life imprisonment.

Similarly, a person who stores pornographic material for commercial purposes in any form involving a child shall be punished with imprisonment extending up to three years or fine or both. The legislation not only punishes the offender who commits such acts but also persons who abet or attempt to commit such an act. A person who abets the commission of the offense by instigating, conspiring, intentionally aiding by any act or omission would be liable for the offense and would be punishable for up to one year or with fine or both.

The Act seems to be a very comprehensive piece of legislation. The Act starts from defining the various offenses to punishing persons abetting such an offense. The highlight of the Act is the procedure and the safeguards meant to protect and make the child feel safe so that there is minimal long-term impact due to the heinous crime.

International Laws

International aspects concerning Child Pornography

Child pornography is a multi‐jurisdictional problem to which a global approach must be applied. Successfully combating child pornography and child exploitation on a global scale requires uniform legislation; laws that vary from country to country serve to weaken the stance against child sexual exploitation and allow child predators to concentrate efforts in countries where they know they are best able to exploit children. A holistic and uniform approach is the most effective means of combating the sexual exploitation of children because it allows for consistency in criminalization and punishment, it raises public awareness of the problem, it increases services available to assist victims, and it improves overall law enforcement efforts at the national and international levels. Complying with international legal standards is an initial step in addressing child pornography, to be followed by national implementing legislation and the creation of a national legislative scheme to combat child pornography.

There are three main international legal instruments that address child pornography:

· The Optional Protocol to the (U.N.) Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography;
· The Council of Europe’s Convention on Cybercrime; and
· The Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

All three are effective tools for combating the sexual exploitation and abuse of children because they contain specific definitions of offenses as well as provisions requiring punishment for criminalized behavior, allowing for the more effective prosecution of perpetrators. The Optional Protocol and the Convention on the Protection of Children also serve as comprehensive examples of legal mechanisms that require governments to implement and provide for services to assist child victims and their families.

In addition to these three international legal instruments, the European Union has adopted a Directive on combating the sexual abuse and sexual exploitation of children and child pornography. All EU Member States are required to come into compliance with the Directive by the end of 2013. In comparison with the Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, The directive establishes more explicit guidelines for criminal legislation regarding sexual abuse and exploitation of children. In particular, The directive provides recommendations for terms of imprisonment for certain offenses; it describes measures for the treatment of offenders; and contains provisions on supporting and protecting child victims with a focus on the best interests of the child.

India is a signatory to many international instruments and declarations about the rights of children to protection, security, and dignity. It acceded to the United Nations Convention on the Rights of the Child (UNCRC) in 1992, reaffirming its earlier acceptance of the 1959 UN Declaration on the Rights of the Child and is fully committed to the implementation of all provisions of the UNCRC. In 2005, the Government of India accepted the two Optional Protocols to the UNCRC, addressing the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. India is strengthening its national policy and measures to protect children from these dangerous forms of violence and exploitation. India is also a signatory to the International Conventions on Civil and Political Rights, and Economic, Social and Cultural Rights apply to the human rights of children as much as adults.

Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

While the Convention on the Rights of the Child (CRC) aims to ensure a broad range of human rights for children – including civil, cultural, economic, political, and social rights – there are Articles within the CRC and an Optional Protocol to the CRC that address child sexual exploitation.

Article 34 of the CRC clearly states that preventive measures should be taken to address the sexual exploitation of children:

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall, in particular, take all appropriate national, bilateral and multilateral measures to prevent the the exploitative use of children in pornographic performances and materials.

The CRC Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol) entered into force on 18 January 2002. Specific to child pornography:

# Article 2(c) defines  child pornography  as  any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.

# Article 3(1) requires States Parties to criminalize child pornography, whether committed domestically or transnationally, on an individual or organized basis.

# Article 3(1)(c) requires States Parties to criminalize simple possession regardless of the intent to distribute.

# Article 3(4) addresses the liability of legal persons and encourages each State Party to establish such liability for offenses specific to child pornography. This article reflects the notion that a comprehensive approach requires industry involvement.

# Article 10(1) addresses the need for international cooperation. As mentioned above, child pornography is readily distributed across borders; without international cooperation, many offenders may evade apprehension.

Comparative analysis of legislations of the United Kingdom, India, and South Africa

The United Kingdom passed its legislation for children in the year 2003, similarly, the amended legislation of South Africa was passed in the year 2007 and finally, the Indian legislation was passed in the year 2012. Since the Indian legislation was formed after looking into the United Kingdom and South African legislation, a look, and comparison with the parent enactment would help us analyze the deviation and differences between these Acts.

In the United Kingdom, ( UK ) this legislation is called as  Sexual Offences Act, 2003 , in India,  The Protection of Children from Sexual Offences Act, 2012  and in South Africa  Criminal Law (Sexual Offenses and Related Matters) Amendment Act, 2007 .

The Act to protect children in the UK was legislated with the object to prevent and protect the children from harm from sexual acts. The South African Act emphasizes the need to address the vulnerability of children and also highlights the social phenomenon of child abuse which seeks to make the society dysfunctional whereas the Indian Act was urgent legislation enacted to fulfill the need of the hour to check and prevent an increase in the number of child sex abuse cases.

In all three countries, there are different kinds of age differentiation made concerning children. In the UK, an offense on a child below thirteen is severally punished and the other category for children is sixteen years i.e. for serious sexual offenses. In South Africa, children are defined as those being under eighteen, however, another category has also been created wherein, children between twelve and sixteen years, if they indulge in sexual activities with each other, both may be prosecuted with the permission of the relevant authority. In India, the differentiation is concerning the age of consent. In certain cases, wherein the child is between sixteen and eighteen years of age, the Court would seek to find whether there was consent between the child and the adult or not.

In the UK, the offense of penetration is called rape i.e. when the penetration is done by the penis. The UK Act also includes assault on a child under the age of thirteen by penetration, without the use of the penis, but with the use of any part of the body or any such object. Both these offenses would lead to life imprisonment. In the UK, the age-limit of thirteen is of significance, as any such offense on a child below thirteen is met with graver punishment. Even if a person incites a child i.e. below sixteen to engage in sexual activity leading to penetration, the person would be liable to a maximum imprisonment of fourteen years.

Similarly, any such penetration of a child below sixteen, of the anus, vagina or mouth with the penis or any part of the body or anything else, would be liable to a term not exceeding fourteen years. The inciting or causing a child to engage in such activity is also an offense. Hence, it is amply clear that in the United Kingdom, the age-limit to be considered as a child is sixteen years. There is no concept of consent, however, it would be seen whether the person knew that the child was below sixteen years of age.

In India, however, instead of  rape  the terms used are  penetrative sexual assault and aggravated penetrative sexual assault . These acts include the penetration by a penis, any body part or object, which may be done by the person, or the child on the person. The age of the child should be below eighteen, and the Court would look at whether consent was given if the child is between sixteen and eighteen years of age. The punishment for this offense is a minimum of seven years, which may extend to life imprisonment. In the case of persons in authority, the minimum punishment is ten years and the maximum being life imprisonment. Hence, the age of the child is considered to be below eighteen years, and for a consent between sixteen and eighteen years.

In the South African Act, the term  Sexual Activity  includes sexual penetration and it comes under the head  Sexual The exploitation of Child . There are various kinds of offenses mentioned in this provision. These provisions punish a person who engages in the services of a child, with or without his consent, or when the service is offered to a third person or a person who allows the commission of such an offense, or who gets a reward for the sexual act with the child is punished under the Act. The provision also punishes a person, who makes travel arrangements for or on behalf of the third person to facilitate the commission of a sexual act. Hence, in the South African Act, consent is immaterial, and children are those who are below the age of eighteen. However, for consent, the age limit is between twelve to sixteen years.

In the United Kingdom, engaging in sexual activity in the presence of a child is an offense with a punishment of ten years, whereas causing a child to watch a sexual act is also an offense. In addition to the above, inciting or causing a child to be involved in pornography is also an offense. In India, however, showing the child any object in any form for pornographic purposes is termed as  Sexual Harassment . The using of children in any form of media, for sexual gratification, which may include representation of sexual organs, engaging the child in real or simulated acts or the indecent or obscene representation of child is an offense. In South Africa, the exposure or display of child pornography or pornography or compelling or causing the children to witness sexual offenses, sexual acts as well as self-masturbation is an offense. The usage of children for or to benefit from child pornography is an offense. Thus, in all three countries, the usage of a child to engage in sexual activity or to make him watch any sexual act is an offense with punishment.

One of the terms in the UK Act is  sexual grooming . When a person intentionally meets a child or travels to meet the child with the intent to do anything in respect of the child, during or after such a meeting, which is punishable by the Act, would be liable for sexual grooming. The term  sexual grooming  is not mentioned in the Indian Act, whereas, the term has a different meaning in the South African context. In the South African Act, it relates more to the abetment of an offense. It means that any person, who manufactures, produces, possesses, distributes or facilitates in the happening of these events, for the commission of a sexual act would be guilty of sexual grooming.

Even if a person supplies, exposes or displays an article to be used for a sexual act, child pornography, publication or film would be liable. The provision also includes any arrangement that may be done in any part of the world, or when a person invites, persuades, seduces, induces or coerces a child to travel abroad, or cause for a meeting to be held, for the commission of the sexual act, would be liable for the offence of sexual grooming. In short, it means the abetment of sexual abuse to children. In the UK, abetment has been used in a different provision, wherein, when a person arranges or facilitates the commission of a child sex offense, he would be liable. In India, the term used is  abetment , which involves the instigation, engaging with one or more persons or intentionally aiding a person to commit an offense.

One of the important sections, which exists intending to protect the children from abuse from people in a position of trust is present in both the Indian as well as the UK Act. An act of sexual nature or even an act to cause, to incite a child to engage in sexual activity, to cause a child to watch a sexual act or to do any sexual act in the presence of a child is an offense.

The people are said to be in a position of trust when the child knows that such persons are persons in the position of trust. The positions of trust are defined as the position where the person looks after the child detained in an institution, in a hospital, independent clinic, a care home, whether residential or not, a community home. The position of trust also includes persons receiving or not receiving education, where the child is receiving education, a person who advises, cares or supervises the child. In India, there are terms such as aggravated penetrative sexual assault or penetrative sexual assault, wherein the person in positions of trust, such as police officer, member of armed forces or security forces, a public servant, a person who manages a hospital or educational institution, when commits a sexual act, he would be liable for punishment. There are no such provisions concerning the position of abuse in South Africa.

In the present world, where there has been an increase in the misuse of positions by authorities, it is surprising to see that the South African Act does not take a stern stand on this issue. It becomes one of the important provisions, since it is also seen that such persons may use their influence to hide such cases.

The UK and the Indian Act both punish a a family member who commits a sexual offense on a child. A family member is the person who may be a parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle, foster parent, step-parent, cousins, step-brother or sister, who lives in the same household and is regularly involved in caring for, training, supervising or being the sole in-charge. In India, a relative is defined a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having a domestic relationship with a parent of the child, or who are living in the same or shared the household with the child.

In conclusion, the analysis of the three enactments would show that all the three legislations have been formulated according to the societal needs of the country. The UK Act seems to be the most comprehensive as it outlines everything and has a separate provision for all kinds of acts and offenses. The punishment for the offenses is also stricter than the other two countries. On the other hand, the age of children is taken to be below sixteen years. This again varies from one country to the other.

The South African Act emphasizes more on the actions of the third persons or acts which aim to facilitate the commission of the offense. There is an absence of any provision concerning a person in the position of responsibility or authority. This should have been included since, in a country like South Africa, there would be more abuse of power. The age of the child is below eighteen years, but the age of consent is between twelve and sixteen years.

In India, the Act does aim to combine the above two legislations to the extent possible, including the changes that might be needed as per the needs of the society. A child is defined as being below eighteen years, but the age of consent is between sixteen to eighteen years. There are no provisions concerning grooming or traveling to commit a sexual act.

Conclusion And Recommendations
The legal and procedural barriers to protecting the interests of children on the Internet is vexing. Definitional difficulties, as well as different cultural and social mores, create difficulties concerning devising an effective international framework for protecting children online. The problems are further compounded by different approaches that have been adopted concerning issues involving the exertion of criminal jurisdiction over activities conducted via the medium of the Internet, extradition and the obtaining of evidence.

The lack of a consistent and harmonious framework on privacy, content regulation, and pornography also acts as major obstacles to effecting a workable international strategy to protect the interests of children on the Internet. However, as the discussion also seeks to the show, the difficulties are not insurmountable.

What is ultimately important, at the end of the day is that there must be a determination on the part of all countries to protect children so that an effective legal regime can then be devised. With a degree of judicial ingenuity in adopting a broad reading of existing offense-creating provisions in existing criminal statutes, timely legislative intervention to fill in the loopholes and a fair degree of concerted global co-operation in the field much can be done in the ongoing the battle to protect children.

It is perhaps apt to end the discussion by reproducing a quote that cuts to the chase and helps put the issues in perspective:
 The children's life is far more important then those sorts of relatively minor concerns about civil liberties and entrapment. Those are important questions but set them against a child's life, a child's psychological well-being, and frankly, there's only one possible answer.

Over the recent years, various research regarding the status of child pornography legislation around the world has demonstrated that slow and steady progress is being made. Various international legal instruments are in place, which has helped raise awareness and attach new urgency to this cause. It remains clear, however, that more countries need to take action now if we are to secure a safer future for the world’s children. While combating child pornography at home and abroad is a daunting task, harmonization of laws is essential to effectively address this growing, international phenomenon.

Developing a precise definition of the term ‘obscenity’ is difficult. What may be considered as obscene in one country may not be considered as obscene in another. It mainly depends on the moral and ethical values of the people who belong to a specific country. However, the generic definition of obscenity refers to an act or speech or item that is likely to corrupt the morality of the general public because of its indecency or lewdness in content or form.

The exhibition of something offensive to modesty or decency or expression of unchaste or lustful ideas or being indecent or lewd is considered to be obscene, in most countries. In my opinion, to control child pornography, we should completely ban porn sites. This stringent action can solve the problem to a larger extent. This would give us time to think and plan some new ways to eradicate child pornography around the globe. Depiction of minors, both real and virtual, as well as adults appearing to be minors, in electronic child pornography, should be prevented by Indian law. Stringent measures must be taken to combat such heinous abuse.

Recommendations:
The following main strategies in the fight against child pornography:
1. Facilitate international multi-agency co-operation to combat the problem of child sexual exploitation on the Internet at the international, national and local levels.
2. Challenge societal denial, minimization, and myths about child sexual abuse and exploitation of child.

Bibliography
Primary Sources
Enactment
· Child Marriage Restraint Act, the Child Labour (Prohibition and Regulation) Act, 1986
· Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
· Goa Children's Act, 2003
· Immoral Traffic (Prevention) Act, 1986
· Sexual Offenses Act, 2003
· The Criminal Procedure Code, 1973
· The Indian Penal Code, 1860
· The Juvenile Justice (Care and Protection of Children) Act, 2000
· The Protection of Children from Sexual Offences Act, 2012

Convention
· The Council of Europe’s Convention on Cybercrime, 2001.
· The Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 2007.
· The Optional Protocol to the (U.N.) Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,2002
· UN Declaration on the Rights of the Child, 1989
· United Nations Convention on the Rights of the Child, 1992

Secondary Sources
Books & Reports
· Akdeniz, Yaman, Internet child pornography and the law: national and international responses (Ashgate Publishing, Ltd.. 2008)
· Ann W. Burgess & C.R. Hartman, Child Abuse Aspects of Child Pornography, 7 Psychiatric Annals (1987).
· David Flint,  The Internet and Children's Rights: Suffer the Little Children , (Vol 16, No 2, 2000

List of Abbreviation

& and
Art. Article
CRC Convention on the Rights of the Child
CrPC The Criminal Procedure Code, 1973
EU European Union
i.e. that is
IEF Internet Watch Foundation’s
IPC The Indian Penal Code, 1860
Ltd. Limited
POCSO The Protection of Children from Sexual Offences Act, 2012
Sec. Section
SC Supreme Court
UK United Kingdom
UN United Nation
UNCRC United Nations Convention on the Rights of the Child
US United States
Vol. Volume

Written By: Shivika Bakshi - BA.LLB{H} 9th Sem

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly