Child Pornography

Definition

Child pornography is any visual representation that shows or relates to a person who is or is depicted as a child or who is engaged in or is depicted being engaged in explicit sexual activity or witnessing such activity or where the dominant characteristic is a depiction for a sexual purpose of the genital or anal region of a child.  Advocating, encouraging or counselling the commission of activity is also an offence.

A “visual representation” applies to a broad range of technology. It includes a photographic film, video, copy of any such representation, document and any tape disk medium or other things on which the visual representation or sound are recorded. The definition covers photographs, internet images and other visual representations.

Child pornography also includes audio depictions of children engaged in explicit sexual activity.  . It also includes an audio representation of a person who is represented as being a child, who is engaged or represented as being engaged in explicit sexual activity.

The definition makes it clear that it does not matter what medium the representation, description, or information has been produced, transmitted, and conveyed through. It includes any representation or information produced by or from computer graphics or other electronic or mechanical means.

Production Offences

It is an offence to use children in the production of child pornography.  This is subject on conviction on indictment to imprisonment for a term up to 14 years.  Child pornography does not necessarily involve an assault on the child.  It does not matter that the filming takes place openly.

It is an offence to organise or knowingly facilitate the sexual exploitation of a child.  Punishment is imprisonment up to 14 years or a fine of €31,750 or both.  The offence is also committed by any parent or guardian who allows the child to be used for the production of child pornography.

It is an offence to produce, print, publish, distribute or otherwise publicise anything which implies that a child may be available for sexual exploitation.

Unlike most other criminal offences, Irish citizens may be prosecuted in Ireland for sexual acts involving children done outside the state.

A person who aids, abet, procures, conspires with or incites others to do such an act is also guilty of an offence.  It is an offence to knowingly produce, distribute, publish, import, export or sell child pornography.  It is an offence to knowingly publish or distribute in an advertisement that is likely to be considered to be understood as conveying that the person publishes, imports, exports, sells or shows child pornography.

Possession Offences

It is an offence to encourage or knowingly cause or facilitate any of the above activities or to possess any child pornography for the purpose of distributing, publishing, exporting, selling or showing it.  Offences are subject to 14-years imprisonment on conviction on indictment.

It is an offence for a person to knowingly possess child pornography. The person is liable on conviction summarily to a fine of up to €1,905 or imprisonment up to 12 months or both or on conviction on indictment to a fine of up to €6,350 or imprisonment up to 5 years.

This does not affect the more serious crime of possessing child pornography for the purpose of distribution, publication, exportation, sale or selling.  The offence comprises the possession of child pornography.  It is not necessary or required that it be viewed.

A person who possesses child pornography for the purpose of distributing, publishing, exporting or selling it is guilty of an offence punishable with up to a maximum of 14-years imprisonment.

Defences & Powers

There are a number of defences to offences under the child pornography legislation. There are defences for persons in possession of material for the purpose of prevention, investigation, and prosecution of offences.  Similarly, persons exercising functions in relation to censorship legislation do not commit the offence.

There is a defence to the possession of pornography by persons having it for bona fide research.  This is a very narrow exception.

The Gardai may apply for a warrant to search property for child pornography.  They may enter any place,  search persons and seize anything found there.  It is an offence to obstruct a member of an Garda Síochána when acting in accordance with a warrant.

Anything seized pursuant to a search shall be forfeited upon conviction.  It may be ordered to be destroyed or forfeited by the court.

International Scope

Many of the more general offences under criminal law can be committed over the internet or through electronic means.  Many of the offences of dishonesty that have existed in various forms for a great many years may be committed over the internet.

It is a general principle of the criminal law that only crimes committed within the jurisdiction may be charged. In the absence of an indication otherwise, criminal law is presumed to be limited to acts within the jurisdiction.

However, in the context of cybercrime, and in particular child pornography, the criminal law has been extended to acts occurring abroad.   Certain other crimes in relation to computer data can apply to actions outside the State which have effect within the State or vice versa.

Use of ICT to facilitate sexual exploitation of child  (2017 Act)

In this context a“child” means a person under the age of 17 years.

A person who by means of information and communication technology communicates with another person (including a child) for the purpose of facilitating the sexual exploitation of a child by that person or any other person is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

A person who by means of information and communication technology sends sexually explicit material to a child is guilty of an offence and is liable

• on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or
• on conviction on indictment, to imprisonment for a term not exceeding 5 years.

No proceedings for an offence under this section against a child under the age of 17 years is brought except by, or with the consent of, the Director of Public Prosecutions.

In this section “sexually explicit material” means any indecent or obscene images or words.

Child Pornography Offence Updated (2017 Act)

 The 2017 Act  amends and updates the definition of child pornography in  section 2 of the Child Trafficking and Pornography Act 1998, to include in the definition showing or depicting a child engaged in simulated sexually explicit activity.

This includes any visual representation—

• that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in real or simulated sexually explicit activity,
• that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or
• that shows, for a sexual purpose, the genital or anal region of a child or of a person depicted as being a child,”.

With regard to child pornography, the definition of a child was amended to refer to person under the age of 18 years. Previously, under the 1998 Act, it was defined as a person under the age of 17.

There  is a minor amendment to the definition of sexual exploitation in  the 1998 Act to bring it into line with the definition of sexual exploitation above. It clarifies that an invitation to engage in a sexual act is an offence where, if the act were done, that act would be an offence.

Organising Child prostitution or Pornography (2017 Act)

The 2017 Act strengthens existing provisions concerning child prostitution and child pornography. It  provides for an offence where a person controls or directs the activities of a child for the purposes of the prostitution of the child or the use of the child for the production of child pornography.

Other elements of the offence include where a person:

• organises the prostitution of children or the production of child pornography by controlling or directing the activities of more than one child for those purposes;
• compels, coerces or recruits a child to engage or participate in child prostitution or the production of child pornography;
• knowingly gains from the prostitution of a child or the production of child pornography; or
• incites or causes a child to become involved in child prostitution or production of child pornography.

A person found guilty of an offence under this section is liable on conviction on indictment to up to 14 years imprisonment.

Producing, distributing, etc. child pornography (2017 Act)

Any person who:

• knowingly produces any child pornography;
• knowingly distributes, transmits, disseminates, prints or publishes any child pornography;
• knowingly imports, exports, sells or shows any child pornography;
• knowingly supplies or makes available any child pornography to another person;
• publishes, distributes, transmits or disseminates any advertisement likely to be understood as conveying that the advertiser or any other person produces, distributes, transmits, disseminates, prints,
• publishes, imports, exports, sells, shows, supplies or makes available any child pornography;
• encourages, causes or facilitates any activity mentioned above; or
• knowingly possesses any child pornography for the purpose of distributing, transmitting, disseminating, publishing, exporting,
• selling or showing it;

is guilty of an offence.

A person found guilty of an offence under this section is liable on conviction on indictment to up to 14 years imprisonment and / or a fine. The  maximum monetary penalty for offences tried summarily from a class C fine (a fine not exceeding €2,500) to a class A fine (a fine not exceeding €5,000).

Participation of Child in Pornographic Performance (2017 Act)

It is an offence where a person:

• coerces, causes, recruits, induces or invites a child to participate in a pornographic performance;
• gains from such participation; or
• knowingly attends a pornographic performance in which a child participates.

A pornographic performance is not limited to real sexual activity and also includes simulated sexual activity.

A person found guilty of an offence under this section is liable on conviction on indictment to up to 10 years imprisonment and / or a fine.

Possession of  Child Pornography (2017 Act)

Any person who—

• knowingly acquires or possesses child pornography, or
• knowingly obtains access to child pornography by means of information and communication technology,

is  guilty of an offence and is liable —

•  on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
•  on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.