Amatuer Porn

mfillourd

A recent conversation with a friend has made me think. We were discussing porn.

He was saying he never downloads amatuer porn (say a couple filming themsleves having sex and posting it on a blog or site), as there's no guarantees the participants are over 18. I'm saying that's unduly paranoid - fair enough, a girl/guy could look 20 but really be 16, but as long as you are not going for sick stuff and only have stuff where the participants look 18+ to the eye, you'll be fine.

Legally, what would be the case? If for some reason the guards had your computer, would the burden be on you to have to be able to show where each bit of porn came from and that everyone had IDs on file? Or would there have to be material that's clearly illegal for them to investigate?

Hogzy

Runs to delete porn collection

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McCrack

The onus of proving any offence/crime rests with the Gardai/DPP. So it would be up to the prosecution to satisfy a Court beyond all reasonable doubt that the sexual acts were being performed by minors and that a person had this material knowingly in your possession.

Child pornography cases prosecuted in this jurisdiction tend to open and shut as far as the child being abused is a child, there is generally no question that the young person may be the legal age to consent to sexual acts.

seamus

McCrack wrote: »

So it would be up to the prosecution to satisfy a Court beyond all reasonable doubt that the sexual acts were being performed by minors and that a person had this material knowingly in your possession.

*Or* that a minor was being portrayed as engaging in sexual acts by any individual in the film. The age of the actual "performers" is irrelevant in such a case.

Charlie

Ignore

McCrack

seamus wrote: »

*Or* that a minor was being portrayed as engaging in sexual acts by any individual in the film. The age of the actual "performers" is irrelevant in such a case.

Correct. There is an element of subjectivity here but as I said any reasonable person can say whether the persons depicted are underage. Like I said the vast majority of prosecutions for these crimes are involving children that are quite clearly children.

the locust

I can't remember reading it somewhere but maybe someone could clarify but... films/images of sex with obvious showing of penis/vagina are deemed illegal in Ireland unless they are for educational purposes?

Reloc8

Not really...the law allows that an image which appears to be that of a minor is still considered child pornography even if the image is of someone who is 18 or older. So it is all about the imagery in question and whether they look of age or not.

That means ID on file or whatever is irrelevant. Proof of participants being 18 plus is no good if they look younger (would be up to tribunal of fact (jury or district judge depending on jurisdiction) to decide this)

OP also asks what is required to investigate - totally different question...to procure warrants to search etc. reasonable grounds to believe illegal material is located where the search is to take place are required. This has nothing to do with what is actually found, but rather is concerned with why the gardai have occasion to go to the search location and search in the first place. Could be footprints left on sites which display illegal pornography, could be evidence that a particular internet user accessed an image known to be illegal, could be a credit card number traced to user found in a databank of a known supplier of child porn - or an informant who has viewed the history and temp files of the computer - its a very low bar to hit.

Once the search is justified all material found if illegal whether linked to the suspicion grounding the warrant or not will be considered for the purposes of whether a charge or charge will be laid.

Tom Young

CP Act 1989 contains very strict or just strict liability terms for Child Porn. Which means that there doesn't have to be proof to prosecute, you have to disprove you have it.

User: Charlie. Careful now - Tongue in cheek might be accepted on other threads, but frankly this is a sick topic in terms of Children. Adult porn I have no issue with under the correct terms.

Tom

Tom Young

McCrack wrote: »

Correct. There is an element of subjectivity here but as I said any reasonable person can say whether the persons depicted are underage. Like I said the vast majority of prosecutions for these crimes are involving children that are quite clearly children.

I disagree, see CP Act 1989. It does need updating. Operation Amethyst case in point. SODI Defence etc is subjective but you'll find there was only one case allowed thus defence.

mfillourd

Whoa - I'm not asking about actual child porn, or any instance where the Guardai would have any expectation of finding it (ie accessing a site with such material).

I'm asking about amateur porn - for instance, a couple filming themselves having sex and uploading to a blog - where you would not necessarily have the age verification of the performers that a professional company would require.

I'd think having such material on your computer would be fine if the performers look 18, even if you have no clear proof of it. If, for instance, your computer was stolen and ended up recovered by the guardai or something. Or are you better off just only having professionally produced porn or amateur material where everyone looks in there 40s.

Reloc8

that's the point - the question is not proof of age, the question is whether the images are of minors, or persons who look like minors or are depicted as minors. The definition for in the legislation is :

"child pornography" means—
[GA]

(a) any visual representation—

(i) 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 explicit sexual activity,


(ii) 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


(iii) whose dominant characteristic is the depiction, for a sexual purpose, of the genital or anal region of a child,


(b) any audio representation of a person who is or is represented as being a child and who is engaged in or is represented as being engaged in explicit sexual activity,


(c) any visual or audio representation that advocates, encourages or counsels any sexual activity with children which is an offence under any enactment, or


(d) any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation within the meaning of section 3,


irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed and, without prejudice to the generality of the foregoing, includes any representation, description or information produced by or from computer-graphics or by any other electronic or mechanical means"

There are some exceptions listed.

So it is all about appearances and how the material is presented.

mfillourd

Okay. So if the persons don't look like a minor and aren't depicted as such (no school uniforms, etc.), then the guards won't say "We will assume these people are minors since you can't prove otherwise."

So the onus is not on you to prove legality if there's not overt suspicion otherwise? (Very, very) roughly analogous - if the guards look at your mp3 collection, can they say "There's a lot of people that download music illegally these days. Prove to me these are all legal and not stolen." or would they have to prove that there was some explicit evidence something was downloaded?

Tom Young

Yes. Strict liability.

Reloc8

mfillourd wrote: »

Okay. So if the persons don't look like a minor and aren't depicted as such (no school uniforms, etc.), then the guards won't say "We will assume these people are minors since you can't prove otherwise."

If they don't look like minors and arn't depicted as such, there is nothing to worry about.

mfillourd wrote: »

So the onus is not on you to prove legality if there's not overt suspicion otherwise?

Yes in the case of illegal pornography although there are many instances where it becomes necessary to demonstrably prove a defence on the balance of probability if certain facts are established e.g. carrying certain items in certain circumstances, the law provides that it is an offence to do so but 'shall be a defence' to show your intentions/purpose etc. was lawful.

In fact in this particular case, if there was reasonable doubt as to whether the people depicted were minors or depicted as minors, that in and of itself would result in an acquittal.

mfillourd wrote: »

- if the guards look at your mp3 collection, can they say "There's a lot of people that download music illegally these days. Prove to me these are all legal and not stolen." or would they have to prove that there was some explicit evidence something was downloaded?

1) the gardai would have to have a valid reason to look at somebodies mp3 collection i.e. reasonable belief that it contained illegal material, in order to ground the necessary search warrant. Yes you would need an appropriate search warrant to lawfully view the contents of an mp3 player which you didn't own.

2) once there was masses of stuff on it, this might then justify the gardai arresting, detaining and interviewing the owner and they could certainly express incredulity as to anyone 'owning' this much music or what not legally and ask questions as to where the stuff was procured.

3) Ultimately proof of the stuff being stolen would be required. This could come from admissions made in custody, or computer/download records or something of that nature. In the absence of this proof, the prosecution could not succeed or would find it very difficult to succeed. Of course a case based on circumstantial evidence only can certainly result in an acquittal and evidence of masses of content together with a BS explanation which is demonstrably untrue as to where it came from together with, most importantly, whatever evidence grounded the search warrant could certainly ground a conviction.


That's my view - but I'd be interested as to why Tom thinks there is a strict liability involved in a possession case of this nature - perhaps (very likely) there is something on the books I am unaware of.

JohnK

Coler wrote: »

"child pornography" means—
[GA]

(a) any visual representation—

(i) 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 explicit sexual activity,[...]

I'm curious about the use of the word document here; does this actually refer to text based descriptions of sexual activity involving children? And does it draw a distinction if they are fictional or based on events that actually occurred?

Our man in Havana

I would think it would refer to written descriptions of sexual acts.

Victor

JohnK wrote: »

I'm curious about the use of the word document here; does this actually refer to text based descriptions of sexual activity involving children? And does it draw a distinction if they are fictional or based on events that actually occurred?

Look at the fuller definitions http://www.irishstatutebook.ie/1998/en/act/pub/0022/sec0002.html#zza22y1998s2 which refer to Censorship of Publications Acts, so if someone were to publish "Lolita" today, I think it would be looked at quite closely to determine as to whether sexual references were general (possibly not a crime) or gratutitous (possibly a crime). I'll not give examples for obvious reasons.

Factual statements are probably exempt.