RISE IN CHILD PORNOGRAPHY DURING THE CORONA-VIRUS PANDEMIC

This article was written by Agam Bansal, a student of  Rajiv Gandhi National University of Law Patiala, Punjab

INTRODUCTION

1.1 Child Pornography

Child pornography refers to any depiction of a minor i.e. a person below 18 years of age, involved in a sexual act or in any form of sexually related conduct. This includes showing sexually-explicit conduct involving a minor through videos, literature, art, pictures or any online content.

Child pornography is a crime in majority of the nations around the globe including India. Intention holds utmost importance to be charged with the crime of possessing child pornography. It is essential that the individual must have the requisite intention and the knowledge of the fact that he possesses child pornography in order to be charged. Distributing and receiving such illegal content is also sufficient to press charges against the individual.[1]

The United States of America is another country where laws on child pornography are quite stringent. The federal law states that child pornography also involves sexually exploiting children below the age of 18 years. It victimizes the children as once a sexually explicit picture in uploaded on the internet, it becomes a permanent record of sexual abuse meted out to the child. The victims suffer lifelong re-victimization. This affects a child emotionally, mentally and physically. It becomes a hurdle for the child to create relationships with other people. It destroys his/her self-image and self-confidence, creates psychological damage and halts his/her development.[2]

1.2 Corona Virus

Coronavirus is a common virus which spreads mainly through person-to-person contact. It is a respiratory tract infection and can affect an individual’s throat, nose and sinuses. It can also affect the windpipe and the lungs. It’s caused by a virus called SARS-CoV-2. Coronavirus cases range from both mild to serious. This is not a fatal virus and is not dangerous. However, it has spread over the world rapidly leading to shutdown of the day-to-day activities of the people in most of the countries.

Fever, coughing, fatigue, body aches, headaches or a sore throat are few of the main symptoms of this virus. It can cause respiratory failure, pneumonia and even death. Social distancing is the need of the hour. One should stay home as long as possible and try not to venture out. Sanitizing yourself from time to time is very important. The virus spreads from person to person. Doctors call it community spread. Since no vaccine to combat this virus has been developed yet, the only way to keep yourself safe is by practicing social distancing.[3]

The first case of this pandemic was recorded in China on December 31, 2019. It came to light when China informed the World Health Organisation (WHO) of pneumonia seen in a number of people in Wuhan City in Hubei province. The cause of this was unknown. This disease subsequently spread in other parts of the country and later, to the whole world.[4]

2. CHILD PORNOGRAPHY IN INDIA AND THE POCSO ACT

India ranks among the top countries in the world based on biggest consumers and contributors of child abuse material. In January 2020, US-based National Center for Missing and Exploited Children (NCMEC) shared its report on child abuse with Government of India’s National Crime Records Bureau (NCRB). The findings in the report revealed that cases of child abuse were on the rise. Over the past five months, over 25,000 cases were reported of suspected child sexual abuse content being uploaded online over different social media platforms. Delhi recorded the highest number of cases followed by the states of Maharashtra and Gujarat.[5]

India is a party to the UN Convention on the Rights of the Child and Article 21 of the Constitution of India guarantees protection of children by the State. However, prior to 2012, India lacked stringent laws and provisions related to child sexual abuse. There was no statute which prohibited child pornography and sexual exploitation of children. Therefore, in 2012, India came up with The Protection of Children from Sexual Offences (POCSO) Act, 2012. It was enacted in order to protect children from sexual harassment, sexual abuse, sexual assault and pornography. This act ensures that children-friendly mechanisms are adopted for reporting, recording of evidence, investigation and speedy trial of offences. Through this act, special courts were set up which dealt with cases of POCSO in order to ensure speedy trial.[6] Chapter III of The POCSO Act, 2012 deals with using a child for pornographic purposes and its punishment therefor.

2.1 Section 13

Section 13 of The POCSO Act, 2012 is as follows: –

“13. Use of child for pornographic purposes. Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes–

• representation of the sexual organs of a child;
• usage of a child engaged in real or simulated sexual acts (with or without penetration);
• the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.”[7]

The main objective of this section was to prevent the child from sexual assault, sexual exploitation and pornography. The Supreme Court of India in the case of Alakh Alok Srivastava v. Union of India and Ors[8] referred to the Statement of Objects and Reasons of The POCSO Act. The Court stated that the Act aims to reduce child abuse and protect the children from the offences of sexual assault, sexual harassment and pornography.

2.2 Section 14

Section 14 of The POCSO Act, 2012 contains the punishment of using a minor for pornographic purposes. It is as follows: –

“14. Punishment for using child for pornographic purposes. (1) Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also be liable to fine.

(2) If the person using the child for pornographic purposes commits an offence referred to in section 3, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(3) If the person using the child for pornographic purposes commits an offence referred to in section 5, by directly participating in pornographic acts, he shall be punished with rigorous imprisonment for life and shall also be liable to fine.

(4) If the person using the child for pornographic purposes commits an offence referred to in section 7, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than six years but which may extend to eight years, and shall also be liable to fine.

(5) If the person using the child for pornographic purposes commits an offence referred to in section 9, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.”[9]

This section punishes a person for using the child for pornographic purposes and, this section also holds a person liable if during the course of such act he/she sexually assaults the child. Such acts do irreparable damage to the child physically, emotionally and mentally. Such acts jeopardize his/her future. The apex Court also had the same view in Bandhua Mukti Morcha and Ors. v. Union of India and Ors.[10] when it said “Child of today cannot develop to be a responsible and productive member of tomorrow’s society unless an environment which is conductive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society.” In this very judgment, the Court also classified child pornography as one of the most hazardous and intolerable activities.

2.3 Section 15

Section 15 of The POCSO Act, 2012 contains the punishment for storing pornographic content involving a minor. It is as follows: –

“15. Punishment for storage of pornographic material involving child. Any person, who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both.”[11]

The Supreme Court of India has time to time referred to the Information Technology Act, 2000 which contains certain provisions for punishment for publishing or transmitting sexually obscene material. The court in the judgement of Sharat Babu Digumarti v. Govt. of NCT of Delhi[12] mentioned Section 67A and 67B of the IT Act. The Court laid stress on the words “electronic form” and held that they have been used deliberately by the legislature. Section 67A provides for punishment for publishing or transmitting sexually explicit content in electronic form while Section 67B provides for punishment for publishing or transmitting sexually explicit content in electronic form which contains children in it.

3. RISE IN CHILD PORNOGRAPHY CASES DURING THE LOCKDOWN

The Coronavirus pandemic has led to the Indian Government declaring nation-wide lockdown in order to prevent community spread of the virus. This lockdown has ensured that people stay at home and follow the idea of social distancing. However, during this lockdown, a steep rise of domestic violence and child pornography cases have been recorded. Since most of the population is staying indoors, the number of internet searches for sexually explicit content involving minors or children has increased.

The India Child Protection Fund (ICPF), an organisation committed to end child sexual abuse, recently noted that the demand for pornographic material involving children has risen alarmingly during this lockdown. In the state of Maharashtra alone, 46 people have been arrested and 130 FIRs have been registered in connection to offences related to child pornography. The Home Minister of the State, Mr. Anil Deshmukh, also released a warning to the parents that they must keep a vigil on what their ward is surfing the internet for. This huge rise shows the high number of child rapists and paedophiles present online.[13]

During December 2019, the average overall demand for child pornography in India was about five million per month. According to Pornhub, the world’s most acclaimed and largest pornography website, this number has increased by a whopping 95% in the lockdown. The metropolitan cities of the nation have been at the helm of this hike. New Delhi, Mumbai, Kolkata, and Chennai have all registered close to 200% rise in demand for child pornographic material.[14]

Reports by international organisations like the United Nations and Europol suggest that children are being targeted through social media websites. Children are groomed on social media. They become friends with unknown people online, an emotional connect is built with them and ultimately, they are lured into performing sexual acts through videos and pictures. This has led to a steep hike in the demand for CSAM i.e. Child Sexual Abuse Material.

4. CONCLUSION

The lockdown is the need of the hour during these grave times. However, combating the virus should not come at the expense of increased cases of sexually explicit material involving children being distributed. This hike in the child pornography cases shows the threat faced by the children of India during these tough times. It is the harsh reality of our nation that even children are not spared when it comes to sexual offences. Sexual predators are on the prowl during the lockdown and the parents, as adults, should be careful towards their children. It is also the responsibility of the Government to take strict action and impose stringent laws on social media platforms and internet providers. These internet houses should be held liable for this increase in child abuse.

5. REFERENCES

5.1 Journal Article

• The Harvard Law Review Association, Child Pornography, the Internet, and the Challenge of Updating Statutory Terms, 122 HARVARD L.R. 2206 (2009).

5.2 Internet

• Child Pornography Law, JUSTIA (Apr., 2018), https://www.justia.com/criminal/offenses/sex-crimes/child-pornography/.
• Child Pornography, THE UNITED STATES DEPARTMENT OF JUSTICE (Jul. 25, 2017), https://www.justice.gov/criminal-ceos/child-pornography.
• WebMD Medical Reference, Coronavirus and COVID-19: What you Should Know, WEB MD (May 12, 2020), https://www.webmd.com/lung/coronavirus.
• Coronavirus, THE HINDU, https://www.thehindu.com/topic/coronavirus/?page=2.
• Pallavi Pundir, India has a Child Pornography Problem, and Delhi Tops the List of Uploads, VICE (Jan. 28, 2020, 03:50 PM), https://www.vice.com/en_in/article/k7ez8a/india-has-a-child-pornography-problem-and-delhi-tops-the-list-of-uploads.
• What is POCSO, BUSINESS STANDARD, https://www.business-standard.com/about/what-is-pocso.
• Express News Service, Spike in Child Pornography Cases: 46 Held, over 130 FIRs Registered During Lockdown, Says Maharashtra Home Minister, THE INDIAN EXPRESS (Apr. 21, 2020, 12:42 AM), https://indianexpress.com/article/india/maharashtra-home-minister-child-pornography-cases-46-held-130-fir-6371554/.
• IANS, Demand for Child Pornography in India Spiked Since Lockdown: ICPF, CISO (Apr. 14, 2020, 08:15 AM), https://ciso.economictimes.indiatimes.com/news/demand-for-child-pornography-in-india-spiked-since-lockdown-icpf/75127959.

5.3 Cases

• Alakh Alok Srivastava v. Union of India & Ors., (2018) 5 S.C.C. 651.
• Bandhua Mukti Morcha & Ors. v. Union of India & Ors., (2000) 9 S.C.C. 81.
• Sharat Babu Digumarti v. Govt. of NCT of Delhi, (2017) 2 S.C.C. 18.

5.4 Statutes

• The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

[1] Child Pornography Law, JUSTIA (Apr., 2018), https://www.justia.com/criminal/offenses/sex-crimes/child-pornography/.

[2] Child Pornography, THE UNITED STATES DEPARTMENT OF JUSTICE (Jul. 25, 2017), https://www.justice.gov/criminal-ceos/child-pornography.

[3] WebMD Medical Reference, Coronavirus and COVID-19: What you Should Know, WEB MD (May 12, 2020), https://www.webmd.com/lung/coronavirus.

[4] Coronavirus, THE HINDU, https://www.thehindu.com/topic/coronavirus/?page=2.

[5] Pallavi Pundir, India has a Child Pornography Problem, and Delhi Tops the List of Uploads, VICE (Jan. 28, 2020, 03:50 PM), https://www.vice.com/en_in/article/k7ez8a/india-has-a-child-pornography-problem-and-delhi-tops-the-list-of-uploads.

[6] What is POCSO, BUSINESS STANDARD, https://www.business-standard.com/about/what-is-pocso.

[7] The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

[8] Alakh Alok Srivastava v. Union of India & Ors., (2018) 5 S.C.C. 651.

[9] The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

[10] Bandhua Mukti Morcha & Ors. v. Union of India & Ors., (2000) 9 S.C.C. 81.

[11] The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

[12] Sharat Babu Digumarti v. Govt. of NCT of Delhi, (2017) 2 S.C.C. 18.

[13] Express News Service, Spike in Child Pornography Cases: 46 Held, over 130 FIRs Registered During Lockdown, Says Maharashtra Home Minister, THE INDIAN EXPRESS (Apr. 21, 2020, 12:42 AM), https://indianexpress.com/article/india/maharashtra-home-minister-child-pornography-cases-46-held-130-fir-6371554/.

[14] IANS, Demand for Child Pornography in India Spiked Since Lockdown: ICPF, CISO (Apr. 14, 2020, 08:15 AM), https://ciso.economictimes.indiatimes.com/news/demand-for-child-pornography-in-india-spiked-since-lockdown-icpf/75127959.