I am grateful to Sara Fovargue and Peter Rowe for their valuable feedback on earlier versions of this paper. Thanks are also due to the Legal Studies reviewers and to Jenny Steele for their very helpful comments. Any errors remain my responsibility.
Criminalising fabricated images of child pornography: a matter of harm or morality?
Article first published online: 14 MAY 2010
© 2010 The Author. Journal Compilation © 2010 The Society of Legal Scholars
Volume 30, Issue 2, pages 230–256, June 2010
How to Cite
Ost, S. (2010), Criminalising fabricated images of child pornography: a matter of harm or morality?. Legal Studies, 30: 230–256. doi: 10.1111/j.1748-121X.2010.00161.x
- Issue published online: 14 MAY 2010
- Article first published online: 14 MAY 2010
This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.