Paedophiles who trade child abuse images will not be sent to prison: New sentencing laws suggest community punishments

• The Sentencing Council suggested ‘high level community orders’ for those convicted of trading or possessing child pornography

• The current benchmark jail sentence for those with a small number of images is three months

• Only those with pictures of children posing alone or small quantities of images of children engaged in sex acts, but not with adults are not jailed

• Criminologist Dr David Green said it was ‘sending the wrong message’

FIRST we need to get the terminology right — it’s child abuse, not child pornography: every photograph depicts a real child being sexually abused.

Every picture is a crime scene where a real child is abused or exploited !

Paedophiles who trade in child pornography will be spared jail under new sentencing rules for courts revealed yesterday.

The Sentencing Council suggested community punishments for those convicted of trading or possessing child pornography in its guidelines on dealing with all types of sex crimes.

People caught selling or distributing internet child pornography may receive ‘high level community orders’, and the council also proposed community orders for people possessing images of non-penetrative sex between adults and children.

The current benchmark jail sentence for those with a small number of images is three months. Only those with pictures of children posing alone or small quantities of images of children engaged in sex acts, but not with adults, are not jailed.

In the last two years (2012), nearly 26 million child abuse images have been confiscated in England and Wales. The total comes from just five of the 43 police forces in England and Wales which were able to check their records.

The figures are in stark contrast to 1990 – before the internet became hugely popular – when the Home Office estimated there were just 7,000 hard copy images in circulation in the UK. Now, at least five times that amount are being confiscated every single day.

In some investigations the sheer scale of images is so immense that police concentrate on a sample.

Last night, Canterbury Tory MP Julian Brazier said: ‘It is very worrying that they are not going hard on people who distribute child pornography. You need to take a tough line with the distributors or otherwise you are licensing it.’ 

Criminologist Dr David Green, of the Civitas think-tank, said: ‘The primary question for the courts is what action is most likely to reduce sexual exploitation of children. This is sending the wrong message.’

The council, which instructs judges and magistrates, also said that adults who had sex with 13- to 16-year-olds may receive community penalties and treatment courses instead of prison sentences. 

For the first time, it separated cases of adult sex acts with under-13s from under-16s.

In cases of sex with a 13-year-old, it said that where there was no grooming or other aggravating factors, ‘high level community orders’ can be given instead of the benchmark of four years in jail.

The guidelines said such cases should involve ‘no significant disparity in age’, but admitted that there will be ‘very few instances where the disparity in age is not significant’.

The council also recommended increased use of community sentences for paying for the sexual services of a child. It said that sex offence sentencing needed to be brought up to date and said its plans gave ‘more focus to the impact on victims and reflect advances in technology’. 

In 2011, of the 261 people found guilty of sexual activity with a child under 13, 134 were jailed and 90 were given community sentences.

The Sentencing Council also suggested sentences for rapists and sex attackers need to be brought up to date, with advances in technology and tactics used by offenders.

Judges should take into account the psychological and long-term effects on victims, as well considering new factors such as filming or photographing a rape, when deciding on punishments.

A tougher maximum sentence of 19 years should be given for ‘one-off’ rapes, a limit currently only available for those who attack the same victim over a course of time or rape multiple victims, the guidelines said.

The changes, which are under a 14-week public consultation, are designed to make sure paedophiles, people-traffickers and rapists who operate alone or in gangs are dealt with better in courts in England and Wales.

Sentencing Council member Lord Justice Treacy said: We’re improving guidance for courts to help them deal with these incredibly complex, sensitive and serious offences.

‘The perspective of victims is central to the council’s considerations. We want to ensure sentences reflect everything the victim has been through and what the offender has done.’

Children’s charity the NSPCC welcomed the guidelines in putting the emphasis on the ‘forgotten victims’ of child abuse.

Jon Brown, head of the NSPCC’s sexual abuse programmes, said: ‘We know that many suffer in silence for years after being sexually assaulted, and even when their ordeals come to light they cannot get the therapy required to get their lives back on track.

‘It’s only right that attention should focus on their needs and that the deep psychological effects on them will be reflected in the way courts deal with offenders.

‘Tougher sentences for those who groom vulnerable children will also help send a strong message that sexual exploitation will not be tolerated and illustrate every effort is being made to stamp it out.

Scale of indecency

The pictures are graded from level one – the lowest – to category five, which involves sadism. Many of the pictures involve children under 10 and even babies appear in some

Indecent images of children refers to images or films (also known as child abuse images) and in some cases, writings depicting sexually explicit activities involving a child. Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography, and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are “exploited perversely.”

The COPINE Scale is a rating system created in Ireland and used in the United Kingdom to categorise the severity of images of child sex abuse, and thus use in the sentencing of offenders in a UK court of law.

The sentencing guidelines from the Sentencing Council should be applied in determining mode of trial for cases involving indecent photographs or pseudo-photographs of children.

In looking at the nature of the material the Sentencing Council has categorised such material into five levels of seriousness with level five being the most serious.

Level one: Images of erotic posing, with no sexual activity;

Level two: Non-penetrative sexual activities between children, or solo masturbation by a child;

Level three: Non-penetrative sexual activity between adults and children;

Level four: Penetrative sexual activity involving a child or children, or both children and adults;

Level five: Sadism or involving the penetration of, or by, an animal.

The age of the child is now an aggravating factor and police officers should be encouraged to ensure that images are divided not only according to the categories set out above, but also as to whether the child is under 13 years, or 13 – 15 years and 16 – 17 years old.

When dealing with cases involving thousands of images police officers have approached the CPS in order to determine at what point they can stop looking at images. It is a matter for the police to decide how many images to view. If the police decide not to view all the images that is a risk analysis only they are able to take. There is of course always the danger that if only 100,000 images out of 500,000 are viewed that image 100,001 may show the suspect abusing a child.

The revised five-point scale answers one of the criticisms that had previously been leveled against it, that being that penetrative activity between minors has been raised from level 2 to level 4, an important and significant change. However it has failed to answer one criticism and raised a potential question.

Level 1 images continue to refer to erotic posing and the question has sometimes been raised as to whether that means that non-posed photographs, particularly those that could be construed as naturist photographs, are indecent or not. It is important to note that the sentencing guideline is relevant solely to the issue of sentence and not what does, or does not, amount to an indecent photograph.

Legal definitions of child abuse images generally include sexual images involving prepubescents and pubescent or post-pubescent minors and computer-generated images that appear to involve them. Most possessors of child pornography who are arrested are found to possess images of prepubescent children; possessors of pornographic images of post-pubescent minors are less likely to be prosecuted, even though those images also fall within the statutes.

Child abuse images are among the fastest growing criminal segments on the Internet. Producers of child pornography try to avoid prosecution by distributing their material across national borders, though this issue is increasingly being addressed with regular arrests of suspects from a number of countries occurring over the last few years. The prepubescent pornography is viewed and collected by paedophiles for a variety of purposes, ranging from private sexual uses, trading with other paedophiles, preparing children for sexual abuse as part of the process known as “child grooming” or enticement leading to entrapment for sexual exploitation, such as production of new child pornography or child prostitution. Child pornography is illegal and censored in most jurisdictions in the world.