Sexual Privacy for Paedophiles and Children

Paper delivered by Tom O'Carroll to the Symposium on Sexual Privacy at the annual meeting of the International Academy of Sex Research, Paris, June 2000

Introduction

I have been invited to speak to this symposium about sexual privacy in relation to paedophilia, the very idea of which may seem mind-bogglingly bizarre and exotic. How could paedophiles, whose sexual activity is not just abhorred but severely penalised in the criminal law, have valid claims to make concerning sexual privacy?

The answer, so far as my approach today is concerned, is twofold.

Primarily I will be suggesting that the private possession of so-called child pornography (a term which has been used by law enforcement agencies to cover a multitude of alleged sins including publicly exhibited artworks and advertising material) ought to be allowed and that its suppression owes more to the social construction of paedophiles as a category demonised for their alleged assault on innocence than it owes to any actual need for the protection of children.

Secondly, I will suggest that children themselves are being denied privacy for their emergent sexual expression as part of a related phenomenon, namely society's heavy investment in a false idea of their innocence. The idea that adults sexually attracted to children may not in fact be demonic, and that children may not be sexually innocent, logically suggests a third area of privacy interest and debate in terms of society's attitude to non-coerced adult-child sexual encounters. This third area lies beyond the scope of what I will be addressing directly: my hope is that participants will ponder it in their own minds in the light of the issues advanced via my two-part approach.

To begin the first element of my approach, then: a judge in the Canadian province of British Columbia reached a constitutional ruling last year that appalled and angered lobby groups, legislators and media figures presenting themselves as concerned for the protection of children against sexual assault. An appeal court later upheld the decision.

This appeal judgement, in the case of the Crown versus Robin Sharpe, supported the right to the private, personal possession of child pornography. An astonishing decision, one which bucked the trend around the world in the last quarter century of growing anxiety over child porn and ever more draconian measures to stamp it out. So what the hell was going on? Had these judges taken leave of their senses? Had they been abducted by paedophile aliens and robotised to do as instructed?

I know of no evidence to support such an hypothesis. A more parsimonious explanation is to be found in their concern primarily with the concepts of proportionality, privacy, and freedom of thought, belief, opinion and expression. They invoked the Canadian Charter of Rights and Freedoms in support of the principle that action taken against any social evil should not itself be disproportionately harmful in relation to the level of harm caused by that evil. They reached the conclusion that although some harm could, arguably, be imputed to the private possession of the pornography in question, the harm caused by the police raiding the defendant's home and seizing his private possessions, thereby invading his personal privacy, was greater. Enforcing the law against mere possession of the pornography, they decided, also infringed charter rights to freedom of thought, and that this attack on a fundamental democratic right was not justified by the alleged harm caused by the possession. What's more, a similar judgement upholding the right to the private possession of child pornography was made late last year by the Appeal Court of New Zealand in the case of Gerald Moonen.

How could this be? After all, everybody knows, don't they, that child pornography is one of the greatest, most damaging evils of our times. Well, rather than relying on "what everybody knows", the judge who made the primary constitutional ruling in the case, Mr Justice Shaw, had taken the trouble to consider evidence relating to alleged harms caused by the simple possession of child pornography, as opposed to its creation or dissemination. Police and other witnesses for the Crown presented points such as the possibility of paedophiles being stimulated by the material to commit offences against children, or using it in the so-called "grooming process" to show to children. The judge did not ignore such factors but he also weighed them in the balance with countervailing ones.

Before touching upon these issues, I feel I should clarify why I am approaching the subject of sexual privacy and paedophilia from the pornography angle, when alternatively I could be discussing the more radical and ultimately more interesting proposition: namely that consenting children and adults have a right to private intimacy together just as lesbians and gay men do, or any other consenting partners. The answer is threefold.

Firstly the consent issue is a complex one which would inevitably take us way beyond privacy, which is the focus of this symposium.

Secondly, the personal use of pornography is quintessentially a private matter.

Thirdly, and most significantly, the private possession of child pornography has become the target of massive state repression: it has become a means for identifying and labelling people as deviants rather than protecting children.

This repression in practice results in the harassment of legitimate artists, political activists and sometimes perfectly ordinary families. It also generates an image of paedophiles in the public imagination in which adult sexual attraction to children is reduced to a one-dimensional, one-track-mind phenomenon. As a mental construct, "paedophiles" come to be seen as interested in dirty pictures, or in plotting to molest children, and as having nothing positive to offer a child, such as friendship and love. So let it be said straight away that this simplistic picture is grossly misleading. I personally have a number of paedophile friends who have no use for pornography themselves and indeed express a distaste for it. Some even get angry with me for making it an issue, saying the whole discussion lowers yet further the tone of public discourse on paedophilia.

Returning, briefly, to the Canadian judgement, I would point out that I have reviewed the major elements of its reasoning in a background paper I have written for this symposium, with footnotes and references, which I am making available to everyone here today as a Word file on a floppy disk. This considers such factors as, for instance, the cathartic use of child pornography in reducing sex crimes against children, and challenges such notions as the idea that making erotic images of minors necessarily involves abusing the children depicted.

I have briefly mentioned the over-broad impact of child pornography laws on people who would not generally be considered paedophiles, such as the ordinary parents who sometimes naively suppose pictures of their naked kids playing in the bath will be regarded as innocent at the photo lab. What the British Columbia judges understood, however, goes far beyond the problem of over-broadness. It is something deeper and more subtly important. They understood that even when law enforcement is apparently successful in targeting paedophiles rather than so-called normal people (a false dichotomy, by the way, as I point out in my longer [background] paper) the intention behind such targeting is a dangerous one for society. The wording of the various laws against child porn, in Canada and elsewhere, generally has nothing to say about paedophiles. The laws speak only of the protection of children, not the thoughts and desires of potential offenders.

But law enforcement officers speak a different language, a language shared with politicians and the media in the last quarter century, during which the child porn laws have been developed. It is the language of demonisation, in which the word "paedophilia" has popularly come to symbolise pure, undiluted evil, with the implication that nothing must be allowed to stand in the way of a ruthless war to bring about its extirpation. It is a language in which police, politicians and journalists have colluded to link unreasonably a particular sexual orientation with moral degeneracy and high levels of harm.

Like the child porn laws, the recent landmark paper by Rind, Bauserman and Tromovitch makes no mention of paedophilia. But its findings could hardly be more significant to the view society takes of paedophiles, as I imagine many of you already know. This meta-analysis based on 59 studies of college students showing the effects on those who had been involved as children in sexual encounters with adults provides an important corrective to the view that such encounters are always gravely traumatic. A careful statistical analysis showed that many problems which the original researchers had uncritically assumed to be caused by sexual abuse could more plausibly be attributed to generally inadequate family environments, with which they were much more strongly correlated.

Similarly, the harm supposedly caused to children from being photographed naked or taking part in sexual activity with their peers or with grown-ups has been greatly exaggerated. There is no more intrinsic reason why any harm at all should result from such activities than from children going with their parents on a naturist holiday. Not that there is no need to for genuine concern. We are right to worry over the possibility that children will be exploited against their will, that rape or sadistic attacks will be perpetrated on camera. The production of such pictures is vanishingly rare, however, and there is no shortage of criminal law to deal with any perpetrators who are caught. Even in such cases, though, we would be hard put to blame the private viewer of such material for creating a market in it. There is no means, no even on the Internet, to buy and sell such material. Illegal images may be posted, but this will invariably be done anonymously or with a phoney "from" address – for obvious reasons. This means that it is impossible to make money on these activities. From time to time someone may naively hope do so, lured by claims in the media that it is a profitable business. These commercial attempts have always been stopped very quickly: If the potential customers can find the producer then so can the police. The notion that there is a vast child porn industry, organised by some ruthless mafia, is simply a myth.

Throughout the Western world, and increasingly beyond, we find barriers being set up between adults and children. In the name of protecting innocence we are enforcing emotional and physical separation of age classes in a sort of generational apartheid that sees fathers afraid to hug their children too affectionately and teachers' unions advising that teachers should keep a minimum gap of one metre between themselves and their pupils. The barriers are invisible but strong, enforced by a climate of fear – people are becoming terrified of being identified as a paedophile.

As sex researchers you might think he or she is a person who is exclusively or to a significant degree sexually attracted to pre-pubertal children. But as observers of the social and political scene you would have to conclude that a paedophile is a monster who attacks and defiles innocence. On this definition there can be no such thing as an innocent or non-practising paedophile, though there are in fact saintly individuals who manage heroic life-long feats of restraint – people who, especially if they are elderly bachelors, find themselves rewarded with nothing but constant suspicion. A paedophile thus by definition cannot be an affectionate person, nor can a child be fond of him once he is unmasked like some alien in a horror movie. He may for years have seemed to be a pleasant, caring, kind, decent, honourable man, but of course that is all part of his cunning disguise. And there can be no legitimate private thoughts and private fantasies where such a monster is concerned.

The sting operations and mass police raids we have seen in recent years against child porn actually have a significance that does not readily meet the eye. The deep purpose of both kinds of operation is not the investigation of lesser crimes such as the private possession of pornography. The underlying purpose is to invade the privacy of the mind – not in order to find out what offences someone has committed but what kind of person he is. Possession of child porn is being used to generate evidence of paedophile identity, of paedophile ethnicity, one might almost say, such that often entirely harmless people can be registered and henceforth viewed with lifelong suspicion, surveillance and coercion.

A New Zealand lawyer in the successful appeal case of Moonen, already mentioned, has drawn an interesting parallel with so-called "circumstances of indecency", which can be used in indecent assault cases before the courts to establish evidence of indecent intent in, say, the way in which a child was touched. In private correspondence with Moonen this lawyer wrote: "The court… decides whether an assault is indecent. I believe the significant shift in public and legal perceptions has been the establishment of a logical and simple link where a paedophile identity is understood to guarantee indecent intent. If you are paedophile then indecent intent is deemed proved. I believe the use of pornography is not primarily a concern for the child in the image, but the way the material is judged to establish an identity for the individual being charged."

This invasion of private fantasy makes for a cast-iron guarantee that grave injustices will be perpetrated, not least because it flies in the face of evidence that pornography may be used cathartically: its possession may well indicate an intent not to get sexually involved with a child but to find sexual gratification with pornography as a substitute.

On its own this would be a dismal enough tale, but unfortunately there is another side to the story. If paedophiles are the vilified blacks of the new generational apartheid, children are in a remarkably analogous position to that of the white women who used to be "protected" by lynch mobs of Ku Klux Klansmen in the American South. The dominant white male culture of the old South in the slavery era held that women, like today's children, were not sexual beings; they were pure. Thus if there was any sexual contact between them and a black man it could only mean one thing: rape. White ladies were not allowed to have sexual feelings for black men; it was literally unthinkable. Women who dared to break this iron taboo were ladies no longer, just whores.

Nowadays, the locus of sexual anxiety has shifted towards children. As this anxiety has been cranked up and up in recent decades, we have been seeing increasingly repressive measures designed not to protect children themselves but to protect the myth of childhood innocence in which society has invested so heavily. Punishing children for sexual involvement with adults, however, would be too nakedly a contradiction of their victim status. It would imply they had known what they were doing, and were not innocent. In order to preserve this notional innocence of the child, it is far easier to blame the adult, the despised paedophile, whatever the facts of the case may have been.

But when children have sex with each other there is no adult available to blame. Scapegoating the paedophile as-it-were "ethnic minority" is not an option. Instead, the repression of children's sexuality needs a secondary scapegoat. Clinging ever more desperately to the dogma that children in general are non-sexual, a minority of kids are being stigmatised as deviants and delinquents when they are caught in sexual activity with their peers. There have even been attempts to criminalise sexual activities in which no single child played a dominant role, so that it was not possible to blame an allegedly abusive power relationship of a bigger or older child over a smaller or younger one.

Children’s privacy

Creating the concept of child sexual deviants, analogous to "fallen" Southern women, has been one aspect of modern Western society's efforts to preserve the innocence myth. Ideally, from a conservative point of view, the embarrassment of seeing kids on sex registers and exposed as sex ring participants, would be avoided if at all possible. So what we are seeing alongside these highly public but fairly rare cases is a much more pervasive phenomenon: the invasion of all children's privacy for the purpose of sexual repression.

Children, it is true, have always been spied on by their parents. Rightly or wrongly, mom – usually mom not dad – has gone rooting through pockets, and bedroom drawers. If a youngster has kept a diary, chances have always been it would be read by a parent from time to time, especially if the child insisted its contents were secret. Nothing new in that.

Incidentally, for those who shake their heads disapprovingly at the idea that children these days are becoming precociously "sexualised" as a result of pernicious modern exposure to sex on TV, in the movies and so forth, the diary of Anne Frank is worth reading in the unexpurgated edition that has been available in recent years. One wonders even whether these days the brave girl revered around the world as an icon of fortitude in the face of Nazi oppression, would be branded a sexual delinquent in the light of passages like this one, in which she refers to a schoolfriend, when the two girls would have been about 12 years old:

"…Sometimes when I lie in bed at night I feel a terrible urge to touch my breasts and listen to the quiet, steady beating of my heart. Unconsciously, I had these feelings even before I came here. Once when I was spending the night at Jacque's, I could no longer restrain my curiosity about her body, which she'd always hidden from me and which I'd never seen. I asked her whether, as proof of our friendship, we could touch each other's breasts. Jacque refused. I also had a terrible desire to kiss her, which I did. Every time I see a female nude, such as the Venus in my art history book, I go into ecstasy. Sometimes I find them so exquisite I have to struggle to hold back my tears. If only I had a girlfriend!"

If Anne's parents had spied on her diary, which they may wisely not have done in view of the family's exceptionally trying circumstances of confinement in hiding, they might also have been shocked to the core by her views on the overrated nature of maidenly purity and her relentless but unsuccessful efforts to seduce a teenage boy who shared their secret accommodation.

One extraordinary irony of Anne Frank's desperate situation is that until the Nazis discovered her family's hiding place in Amsterdam, she had at least enjoyed a great deal more privacy – privacy in her mental life and intimate personal relations – than is generally available to many youngsters of comparable age today.

What we are seeing now is an increased level of parental anxiety to such an extent that it is finding political expression, with the force of legislation deployed to systematically invade children's private lives. COPPA, The Children's Online Privacy Protection Act in the US is a prime example. This measure, which is not yet operational and which is rightly being resisted by the broadly anti-censorship online community, would require that any website or online service directed to children should obtain parental consent before collecting information from children under the age of 13.

Let's consider what this could mean for the children. While it may be desirable to put restrictions on the promotional and advertising ploys of commercial interests aimed at youngsters, what if those young people themselves want to register with a site and be put on a mailing list? Maybe it’s the fan club site of a famous Hollywood star; or maybe the only claim to fame of the starlet in question is that she has enormous breasts and does a lot of nude scenes. In either case, as a friend of mine remarked, I am having awful trouble understanding how forcing children to involve their parents is going to "protect their privacy". What it looks like to me is not protection of their privacy but invasion of it – the language of the law is an Orwellian inversion of the truth.

The threat of COPPA is that it would extend parental control over their children in the one area where they have enjoyed a small measure of personal freedom and privacy in recent years, thanks to the relative lack of net-headedness and technical savvy of many parents. Kids have to some extent been left alone in their bedrooms, able to explore the cyber world with a freedom no longer available to them in the physical world of their immediate environment. When I think of my own childhood, and the freedom I enjoyed to roam for hours with my pals on foot and by bike, across town and country in the 1950s, it saddens me deeply to contemplate the prison so many kids are forced to live in these days.

Concerned, loving parents have been sold the myth that it's a big bad world out there, with weird strangers out to get their kids and do unspeakable things. But real horrors are exceedingly rare and the most truly abusive acts against children, including murder, take place in the home, perpetrated by parents – "family values" are only as good as the family that holds them. So what we are getting, in the name of protecting children first from "stranger danger" and now from the Wild Wild Web, is constant surveillance and control over all children, such that they have no space to be themselves. They have no private life, no way of standing a little apart from their adult controllers in ways that enable them to develop as autonomous individuals.

A rallying cry of the reformists, in the days when the British law forbidding adult male homosexual acts was coming under challenge, was that the state had no business in the "bedrooms of the nation". It was a strong slogan because it appealed within the political classes to everyone's sense of privacy. There were a good many thoroughly heterosexual members of parliament who would not have wished a light shone into their own bedrooms, exposing their own sometimes none too respectable enthusiasms, from bondage to extra-marital affairs.

If we were to apply the principle consistently, however, we would have to look beyond the bedrooms of the nation. We would have to include the school dormitories of the nation, behind the bike sheds of the nation, in the long grass of the nation. These are the places where kids have traditionally experienced a measure of sexual privacy and initiation, out on the margins, a little beyond the reach of adult surveillance. This wild, marginal terrain has been part of the ecology of childhood but, like the rain forests, it is under pressure, undervalued and disappearing fast.

Whether we can begin in Western society to realise what is happening and start to move in another direction is beyond the scope of this paper. My purpose in giving this address has simply been to set out what I see going on, from the particular perspective available to me, in the hope that as sex specialists with an interest in privacy issues some of you will choose to pick up the ball and run with it in your own style. It may well be that many of you, as scientists, will see your task more in terms of investigating and describing social and physical realities than with crusading to move society in any particular direction. But what you will readily accept, I believe, is that concern over civil rights such as sexual privacy is inevitably a matter of cultural and political dynamics in which we all have a stake as individuals and citizens; in this respect there can be no neutrality.

Read also in-depth background paper and extensive footnotes

REFERENCES
[Back to the Foot notes or to the Background Paper as a frames page]

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