Sexting: Perceptions, Realities and Indecent Images of Children

When Gary Lee Walters asked me to write an article I pondered writing the normal standard of “What’s computer forensics”, “Day in the life of a forensic scientist” etc. However, looking around the site, I decided to write about the one thing computer forensic experts do not like to talk about in public; the topic of indecent images of children.

Before I start, I would like to highlight why I write this article. I am a digital forensics expert witness taking instructions in all forms of digital cases including those involving indecent images of children. This is common in the world of computer forensic examiners working in criminal cases. Like most computer forensic experts and examiners, I am very passionate about the protection of children and also about justice. So here I find myself starting to write and one case keeps springing into my mind….

17 year old Peter charged with possession of indecent images of children

The case involves a 17 year old boy who I will name ‘Peter’. His computer was seized and examined by the police and it was stated to contain 2,000 indecent images of children. He was arrested and charged with approximately 15 counts as specimen charges of making of indecent images and the remaining images were charged as possession (I’ll discuss the definition of these later within this article). Peter admitted in interview that he had about 500 images on his computer, he stated they were of people about the same age as him or slightly younger. This included some images of himself of a sexual nature which due to his age, by definition, may also be charged as indecent images.

I was instructed as defence expert and examined the computer and the images it contained. There were images of an adult pornographic nature on the computer as well as some indecent images of children which I estimated along with the police that the persons depicted were aged approximately 15 – 17 years old. The evidence suggested these were downloaded when Peter was 16 and 17 years old. I found about 500 unique accessible images and approximately 1,500 images which corresponded to duplicates of the 500 already charged. These duplications were determined to have automatically occurred due to the way a computer works. For example, when you view a folder in icon view it will automatically create copies of the images, thus creating duplications.
Images: Unique or Duplications?

The matter went to Court since Peter did not accept there were as many as 2,000 images on his computer. At Court it was agreed that there were 500 unique accessible images and the others images were automatic duplications, resulting in a new indictment being created to correctly charge the 500 images and special measures were put in place to ensure Peter was not jeopardised for going to trial since he had admitting the offences at the time of his arrest. He was placed on the Sex Offenders’ Register.

Now why, when writing this article, are the details of this case in my mind? I firstly discuss it because it really isn’t the stereotypical view of these types of cases and it potentially isn’t the first thing that springs to a person’s mind when they read or see in the media about someone being placed on the Sex Offenders’ Register for possessing/making indecent images of children. It also brings to the fore a startling reality, how many 16/17 year old children are taking inappropriate pictures of themselves posing or of a sexual nature without knowing that such images are illegal? How many of these place them on sites or send these to their friends? How many people realise that although it is legal to engage in sexual activity at the ages of 16 and 17 that it is illegal to capture/store such images including posing in a suggestive manner (unless they are married)? I am perhaps becoming side tracked and concerning myself about the education of young people on the issues of imagery, which is probably an article in its own right….so I shall swiftly move on.

The definitions of ‘Making’, ‘Possession’ and ‘Image’

Firstly, I would like to discuss (in basic terms since I am not a lawyer) what my understanding is of the meaning of the charges with respect to indecent imagery. The terminology can become quite confusing particularly when the words “Making” and “Image” are used. It is my understanding there are two main offences with respect to storing such images – Making and Possession. Making has an unfortunate name since it may sound to the layperson like such an image has been created by the person charged and possibly the implication is that it has been captured by them. Making does not mean this (such an offence would usually to my knowledge be prosecuted as Taking with a camera, for example). The definition is as follows:
‘Making’ is a charge reflecting that an image exists – it may not be in a readily accessible format (e.g. it could be deleted). It may be unknown how the image came to reside on the computer/device.

‘Possession’ is usually an offence where the image(s) are readily available and usually there is evidence to show that the person storing them was aware of their presence.
The word ‘Image’ can also apply to a video file. There is no distinction between a video that is 1 second long and one which is 2 hours long. Likewise the word image would apply to composite images consisting of multiple pictures in one file.

Severity of images

In addition to the different types of charges, there are a set of guidelines which grade the severity of an image (or video) from 1-5 by the Sentencing Guidelines Council [1]. One is the least serious content and five the most. The CPS use these guidelines to define the levels as:
1. Level one – Images of erotic posing, with no sexual activity;
2. Level two – non-penetrative sexual activities between children, or solo masturbation
by a child;
3. Level three – non-penetrative sexual activity between adults and children;
4. Level four – penetrative sexual activity involving a child or children, or both children
and adults;
5. Level five – sadism or involving the penetration of, or by, an animal.

The making and possession charges would usually reflect the level of the image and it is my understanding that this will influence any sentencing imposed. The decision regarding what to charge and what not to charge lies with the CPS and in my experience of working on these cases throughout England, it can vary considerably. Some may prosecute for a few images, some will not, some also have different interpretations of the levels etc.

To charge or not to charge, that is the question (isn’t it?)

Hopefully my basic explanation somewhat resolves the issues of the misinterpretations of the meaning of the charges, it now leaves me to discuss a few other issues which I feel are important. Firstly, the fact that the decision to charge is within the hands of the individual lawyer(s) at the CPS who will decide to bring charges based on their own policies. It is my understanding that at the time of Peter’s arrest, this could possibly have meant that depending upon where Peter lived, he may have never been charged and if he had admitted the original 2,000 images (which he rightly didn’t since he only possessed 500) would it have even resulted in Court? I am sure you would agree (and if you do not, please comment at the bottom) there should be absolute consistency regarding such matters.

Does age of the defendant matter?

Secondly, there’s the issue that often there is no clear distinction (in charging) between someone of the age of 17 possessing sexualised images of similar ages and a 50 year old man possessing images of the most horrible content imaginable involving very young children. It may reflect in the sentencing but ultimately the wording of the charges (Making/Possessing an indecent image of a child) may end up being the same with both persons being placed on the Sex Offenders’ Register. It also poses the question of how can it be, indeed if it should be, made clear that there is a difference between a 50 year old man in possession of 50,000 images of under 13 year olds and Peter possessing 500 images of 15- 17 year olds when he was 16-17 himself?

How well can you guess someone’s age?

As a technical expert working in this area, in late 2009 and early 2010 I was pondering how the law lacks distinction to clearly distinguish those possessing/making images of persons under 13 in a similar manner to those offences committed physically against children (rape and assault). Upon researching for this article, I note the latest CPS guidelines suggest that images should be separated into age categories of under 13, 13-15, 16-17 and these categories will be taken into consideration with age now being an aggregating factor. This in my view can only be a step in the right direction.
However, it’s not without its issues. In fact, it provides more real questions for computer examiners and experts; How can we perform this type of categorisation when presented with cases where there are 100s of thousands of indecent images which we firstly need to find from millions of images stored on the computer and then we have to categories these into 5 different levels of seriousness and then assess them all into strict age boundaries? How can we provide an objective distinction between someone who is 16 and someone who is 15 will be taken into consideration with age now being an aggregating factor. This in my view can only be a step in the right direction.

Media coverage

When it is reported in the media rarely are any distinctions in the age of the defendant in relation to the images contained. Indeed, is it relevant? Legally, may be not, sociologically, yes. To deal with a problem, we first must understand it. Clearer reporting allows for that. However, the media are in the business of sales, not sociology. Would you feel more at ease having Peter living next door or a 50 year old man who has images of young children (under 13) in category 5? Increasingly, the public are asking to know the finer details of a sex offender’s charge.

Are we criminalising Romeo and Juliet of the 21st Century?

Some may be of the opinion that children are more inclined to show a picture of themselves in a state of undress as a modern-day form of flirting. Made even easier with the fact most young teens own a smart phone, all of which have cameras.
I don’t know any simple answers to these issues and I am neither qualified nor knowledgeable enough to answer them, so I merely highlight them within this article. However, what I do know is this is a real world problem with 17 year olds capturing images of themselves/others and distributing them unbeknowingly to their friends (who can then be charged with possession of indecent images of children) without a full appreciation that such behaviour could result in them being placed on the Sex Offenders’ Register which ultimately may affect their ability to work and live their lives in the future.

Many questions were asked in this article. Many left unanswered. If you have an opinion, sociological or legal answer, please as they say.

© Sam Raincock & Gary Lee Walters, 2011


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