Child Pornography - Home | National Rapporteur on Trafficking in ...

60
<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
terial of category 3 and upwards is deemed to constitute a criminal offence. 180 The classification also
demonstrates the considerable variation in sexual themes. Production and users’ collections can also be
classified into a narrative order (series). 181 Examples of this might be images in which children remove
their clothes and/or gradually work towards specific sexual conduct.
1) (Indicative) Non-erotic and non-sexualised images showing minors in their underwear, swimming
costumes, etc., from commercial leaflets or family environments, for example.
2) (Nudist) Images of naked or semi-naked minors in ordinary nudist settings and from legitimate
sources.
3) (Erotica) Photographs of minors (playing) in an ordinary environment, taken surreptitiously
and/or obviously on the basis of a sexual interest in minors, in which either the underwear
forms the express subject of the image or the minor is fully or entirely unclothed and the nudity
or the minor’s genitals (whether or not covered) form the focus of the image.
4) (Erotic posing) Deliberately posed pictures of minors fully or partially clothed or naked, in sexualised
or sexually provocative poses or circumstances, in which the emphasis is placed upon the
nudity or the minor’s genitals (whether or not covered).
5) (Explicit sexual activity) Images of minors fully or partially clothed or naked, involving the
following:
- Minors touching their own genitals or those of other minors, masturbating or involved in
sexual intercourse with one another.
- Minors being subject to assault, physical sexual penetration, masturbation, or oral sex acts
in which an adult is involved, also including cases in which the minor performs such acts
upon an adult.
- An animal is involved in a form of sexual conduct with or by a minor.
The material in the aforementioned categories one (indicative material) and two (nudist material) do
not constitute criminal offences. However, such images and many other types of material serve a sexual
function in relation to children in the case of some individuals. Examples of such material might include
advertisements in newspapers, paintings, correspondence between perpetrators or between perpetrators
and children, children’s toys and written accounts of sexual abuse of children. 182
‘Apparent age’
The objectified element of ‘apparent age’ implies on the one hand that the suspect’s intention does not
have to be directed towards age. A suspect is unable to argue that he/she was unaware that the individual
on the image was a minor. Furthermore, this formulation means that the Public Prosecution Service
does not have to prove the age of the person depicted in order to ascertain that the material concerns
180 One comparable scientific classification is COPINE ‘Combating Paedophile Information Networks in
Europe project.’ This is an EU-funded research programme concerning child pornography and the actors
involved (see §1.4.3 and Appendix 1).
181 Taylor & Quayle, 2003, pp.38-39.
182 In order to distinguish material constituting a criminal offence (child pornography) from material that
does not, the latter is also referred to in the literature as ‘child erotica’. The term ‘child erotica’ can give
rise to confusion, however, in view of the fact that images that are deemed to be ‘erotic’ (category three)
are regarded as child pornography constituting a criminal offence (Lanning, 2010; Quayle & Taylor, 2001).