Caught on the Net

Print edition : March 23, 2007

A child at an Internet cafe in Kochi.-H. VIBHU

On the growing menace of child pornography and how the West confronts it.

IT pains me greatly to write once more on child victimisation and the related trade in obscene child images. If I deal with this unpleasant subject so often, it is because there is a crying need to tackle this grave but little understood problem with grit and sagacity. I would like my piece to act as a reminder to enlightened citizens that they have a distinct role to play in spreading the message far and wide.

The immediate provocation for this fortnight's column is, however, the dismissal recently by the United States Supreme Court of an appeal preferred by a schoolteacher, Morton Berger, who had been sentenced to a 200-year prison term by an Arizona court. The charge against Berger was that he was found in possession of 20 child pornography images. According to the prosecution, he had downloaded these from the Internet during 1996-2002. The children involved were less than10 years old. The conviction was on 20 counts, each of which carried a 10-year sentence. If he had been charged under Federal law instead of Arizona law, Berger would have had to serve only five years in prison.

The main point for consideration here is whether the sentence was unusual, excessive and cruel, grounds on which Berger had filed an appeal, first in the Arizona Supreme Court and later in the U.S. Supreme Court. He lost in both places. There are some who believe that courts in the country have been too harsh on Berger. For instance, I came across the following interesting perception of a journalist, who pleads for a less stern view of Berger's crime:

"There is no question of Berger's guilt. He emerges from the record as an almost classic `dirty old man'. There is no evidence that he himself ever engaged in distributing, exhibiting, receiving, selling, purchasing, electronically transmitting or even `exchanging' pornographic images, all of which the Arizona law forbids. He was convicted solely of `possessing' such images... He is 52 years old, married, a father of four, an award-winning teacher of world history. He has no criminal record of any sort. The state offered no evidence that he has ever created pornography or improperly touched a minor."

But courts in America do not seem to have been impressed with the view that Berger needed some mercy. The U.S. law on the subject is worth analysing if only to drive home the point that child pornography is viewed in that country with unbelievable seriousness. This is quite in contrast with India, where I wonder how many even know that there is such a thing as abuse of children on the Net.

The basic federal law in the U.S. is Title 18, which defines 23 offences of child pornography and child enticement. Relevant are six sections, namely, 2251, 2252, 2256, 2260, 2423 and 2425, which deal directly with child pornography, defined by Section 2256(8) as "not only a visual depiction of a minor engaging in sexually explicit conduct, but also a visual depiction that is indistinguishable from that of a minor engaging in sexually explicit conduct as well as a visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct". Offences listed by the Code include receiving, selling, distributing, reproducing and transporting such material. Also incorporated is the offence of employing a minor or a child to engage in sexually explicit conduct. The Code prescribes a mandatory minimum sentence for each offence that ranges between 15 and 35 years. It also has a scale of offence that goes up every time an offender repeats his crime. Interestingly, mere possession of images is not punishable if committed for the first time. A repeat will, however, invite 10 years in jail.

Each State in the U.S. has a tough law that goes beyond the Federal Code. A model is the one enacted by Florida in 2005. This was a sequel to the rape and murder of a young girl Jessica Lunsford by a previously convicted sex offender John Couey. The public outcry was so much that the new legislation (popularly referred to as Jessica's Law) was designed to be draconian. It prescribes a mandatory 25-year sentence on anyone guilty of lewd and lascivious acts on children less than 12 years. Sexual battery of such a child will actually invite capital punishment or life sentence without a chance for parole. This law also imposes lifetime electronic monitoring of such offenders. One of the more recent States to adopt the Jessica's Law standards is California which brought a new Act (Proposition 83) into force after a public ballot in November last. This legislation is considered sweeping by many. Especially criticised is the provision that forbids sexual offenders from living within 2,000 feet of a school or park. One saving grace is the recent ruling of a U.S. District Judge that this prohibition will apply only prospectively and not to the nearly 90,000 convicts already well settled in society. The State Attorney-General has expressed the view that prospective application would not, however, mean that the restriction cannot apply to old offenders even when they relocate themselves. There are several such grey areas in respect of the California law that need to be sorted out.

As far as I can recall, the Indian Penal Code, 1860, and the Information Technology Act, 2000, are the only laws dealing with the subject of obscenity in India. Section 292 of the IPC prohibits the sale of obscene books, pamphlet, and so on, and prescribes a sentence of two years and a fine of Rs.2,000 to a first offender. A repeat offender gets five years and a fine of Rs.5,000. Section 293 deals with sale of such material to a person under 20. Performing obscene acts and reciting obscene songs in public are punishable under Section 294. How far can acts (such as production, distribution, possession and transport) of child pornography be brought under these sections will merit a debate.

Section 67 of the IT Act deals directly with pornography on the Net. It renders publication or transmission of material that is lascivious or which appeals to the prurient interest of another person an offence punishable with a sentence of five years and a fine of Rs.100,000. This law has been invoked by the police in several instances of the Net being used to sell pornography. A lacuna of the IT Act is possibly that it does not deal separately with the victimisation of children exploited to exhibit unseemly images for the gratification of a large clientele sold out on such despicable pastime.

Law enforcement agencies in the West are visibly exercised over the abuse of children through the Net. A major Federal Bureau of Investigation exercise to fight child pornography is the Innocent Images National Initiative (IINI), which focusses attention on organisations and individuals engaged in exploiting children to produce and distribute obscene child images for a price.

It also keeps a tab on individuals who travel from place to place for the purpose of gratifying themselves through children. Mere possessors of child pornography also receive the IINI's attention. Identifying child victims and rendering them assistance falls within its scope. As part of the FBI's cyber division, this strategic unit has managed to muster substantial international cooperation. An idea of the volume of work turned out is available from the statistics put out by the FBI. More than one-third of all investigations by the Bureau's cyber division emanates from the IINI. Since 1996, when the Initiative was first set up, the number of cases unearthed has gone up beyond expectations. During the decade that ended in 2006, the increase was more than 1,700 per cent. About 18,000 cases were registered during this period, leading to the arrest of 7,700 persons and successful prosecution of 5,840 individuals.

Another initiative to fight child pornography is the Virtual Global Task Force (VGT) that forges close relations between law-enforcement agencies in the U.S., the United Kingdom, Canada and Australia. A brainchild of the U.K. Police, it brings together officers from the four countries for exchange of information and collaboration in investigation. Headed by the chairman of U.K.'s Child Exploitation and Online Protection Centre, the VGT came into being in 2003 when its first conference was held in Belfast. Since then the alliance has set up a 24/7 watch-system whereby agencies of VGT member-countries operate by turn as an "On-call Internet Police Officer". This arrangement enables instantaneous response to imminent threats to children. For instance, in a recent case, a man in England was identified to be planning molestation of his children. A joint team of U.S. and U.K. authorities moved in swiftly to arrest him and foil the attempt. Such an initiative need not necessarily come from agencies alone. Suspicious online activity can be reported to the VGT by individual Internet users as well.

Meeting again in Washington in February, the VGT launched a 60-second commercial that will be distributed all over the world to a projected audience of 450 million. This conference has proposed a European task force and an educational and awareness programme for all Internet users, especially those in the U.K. A manual of good practice for investigators across the globe is also a distinct possibility. The VGT website will become more informative in due course so as to facilitate a quicker law enforcement response to any report on child abuse.

There is tremendous scope to bring down online luring of children through this commendable partnership. VGT is an exercise in which the Indian Police, especially the CBI, should evince interest. We cannot afford to be smug under the false belief that the problem does not exist in India, or is present only in a mild form. Such blind assessments are a sure road to disaster.

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