The Law in Other Places
At about the same time in most other countries the existing pornography laws became more sharply defined. In the United States, where the judiciary can declare a law invalid on the grounds that it contravenes the Constitution,61 first amendment protection for pornography was eliminated by the 1973 Supreme Court decision in the case of Miller v California.62 The Court formulated the criterion of "obscene," which became the basis for this exceptionalism, as material that "appeals to the prurient interest of the average person" and that the images are "patently offensive." After 1982, however, these requirements were no longer necessary as a result of a decision by the same court in the case of New York v Ferber. Child pornography enjoyed no constitutional protection, nor was the exceptio artis et scientiae any longer applicable.63
In the United States and the Netherlands laws
were kept in place which prohibited the sale or public display of films
or photos that offended decency. Although the laws did not mention
child pornography specifically, these items were included, so the sale
and public display of child pornography could to some extent be
prosecuted under these general laws. In Denmark the situation was
different, since the sale of offending material, including child
pornography, was not illegal. The anti-pornography laws had been
repealed in 1967 (for writings) and 1969 (pictures). Sweden had
followed in 1971.64 Both
countries retained prohibitions of undesired confrontation with
pornography. A booming trade in pornography was the result.
However, the boom petered out when Sweden and Denmark got fiercer
competition from other pornography centers, for the large part Germany
and the Netherlands. The general increase in freedom to publish
led to the appearance of material in the media and in ordinary shops
that was once available only in specialized pornography shops. The
need for such specialized shops diminished rapidly in Denmark and
A Gap in the Market
Some pornography dealers were quicker to find the gaps that the law had left open than the legislative members themselves. The Dane, Willy Strauss, one of the first legal pornography dealers, boasts:
In fact, although Strauss was one of the "pioneers" of this market, he was not the first as we shall see later. Child pornography appeared in 1970, almost immediately after the prohibition had been repealed.
Other than the United States, where public sale of child pornography brought Congress into action almost immediately, the trade in a number of European countries, including Sweden, Denmark, the Netherlands, and West Germany, was able to proceed for a decade without any resistance. Although the trade was much smaller than the trade in adult pornography, a small boom of sorts did take place. There was no sign of public indignation. The Dutchman Joop Wilhelmus had a run in with the police after the publication of his first child pornography magazine, Lolita.66 However, after the Chick decision, activity from the police and the Justice Department against such pornography receded. Under the Minister of Justice, van Agt, trade in pornography was treated as a question of offense against decency and the Department of Justice therefore concentrated on pornography films with adults in theaters for the greater public,67 where this offense was considered to take place on the largest scale.
There was in the Netherlands, as elsewhere, little tradition in fighting child pornography. Social developments,68 including the report of the Melai commission, made it unsure if child pornography was offensive for an "important majority of the population" (the criterion of the Chick decision). Until the 1970s there existed film censorship for all ages, making it possible for the Dutch government to prohibit films in which homosexual contact between adults and minors was suggested, such as Schermerhoorn and IJ dijk, both directed by Matthijs Seip. In the 1970s, however, puberty sex taboos were broken.69 Eva Ionesco (12), Laura Wendel (11) and Martin Loeb (17) in Maladolescenza shed their clothes, while Natasja Kinski (14), Mariel Hemingway (13), Brooke Shields (11), Benolt Ferreux (15) and Linda Blair (12) appeared in revealing scenes.
Prosecution for child pornography received little attention in the media at that time, except for some incidental reports. In November 1970 the Amsterdam police acted against Guus Dijkhuizen, the publisher of the booklet Mini-Love. The book contained 65 naked and sexual photos of an 11-year-old girl and a 12-year-old boy. The media were more upset over the way in which the children were interrogated by the police than about the book. The children had been removed from school without the knowledge of their parents and interrogated for a long period by two officers. Two years later Dijkhuizen was acquitted of the charges of "fornication" and "enticement to fornication."70 He had not been charged with disseminating pornography.71
In January 1971 Joop Wilhelmus, the publisher of Chick, was arrested for distribution of the Lolita booklets,72 containing prototypical child pornography. This did not prevent him from publishing more than 50 other issues of the Lolita series, a magazine featuring some very young girls. In 1986 the report of the U.S. Senate Commission on Child Pornography and Pedophilia described the magazines as "the most notorious of the foreign commercial child pornography," with good reason.73
In 1975 Wilhelmus was prosecuted again, this time
for photographs of 12-year-old twins from the town of Arnhem, a boy and
girl. Small articles appeared in some papers and the news died out
quickly. Chief Editor of the sensationalist magazine Panorama,
Gerard Vermeulen, called for increased penalties for the parents who had
provided the opportunity for the making of the photographs.
However, he discredited his appeal shortly thereafter by publishing in Panorama
the photographs of a 13-year-old Danish girl who "stripped for
grandma and grampa."74
Those were different times.
Shortly after child pornography had been made punishable in the United States, people in the Scandinavian countries began to call for legal prohibition. Denmark and Sweden had been pioneers in the liberalization of pornography and were also among the first to discover the negative consequences. A Swedish television program, broadcast at the end of 1976, in which a forceful position was taken against school girls posing in the nude for photographs and the production and sale of child pornography through the Netherlands and Denmark (who were experiencing at that time the peak years) set the tone for the new way of thinking.75 Members of Sweden's parliament pressured for action against child pornography. A government committee, set up to draft rules for freedom of media other than the printed press, produced an advisory report in which prohibition of production and distribution of child pornography was recommended. Criminalization followed, taking effect on January 1, 1980. The maximum penalty was set at six months of imprisonment.76
Denmark followed half a year later. The prohibition concerned commercial distribution only and the punishment was restricted to a fine. In both countries the legal prohibitions were soundly prepared. The criminalization was motivated by the need to protect the sexual integrity of children. It was a question of protection from abuse.
Denmark was the only country where the possible positive effects of the availability of child pornography played a role in the political debate; it was suggested that child pornography could serve as a outlet for tensions that might otherwise lead to actual child abuse. This argument was proposed by the criminologist B. Kutchinsky. In earlier research he had shown a connection between the increased availability of hard pornography and a correlated decrease in reported cases on voyeurism and sexual crimes against children.77 He also argued that a prohibition could give rise to a black market. Because of this, Denmark was the only country in which any significant opposition to the prohibition of child pornography occurred. The Criminal Law Committee,78 a permanent advisory organ of the government, after discussing the pros and cons, went no further than to refrain from speaking out against a prohibition. The proposal for criminalization was eventually made law with 126 for, 22 against and 7 abstentions. Left-wing members of parliament argued that, while they disliked child pornography, they disliked censorship even more. They remained unconvinced that the law would protect children.
The discussion in the Netherlands followed a different path. The proposal of 1979 to reform the pornography law was based on the 1973 advisory report of the Melai Commission,79 which was still based on the notion that the distribution of pornography was an offense against decency. It held that undesired confrontation80 with "offensive" material (the term was retained) should be prevented. Children below 16 years should be protected from seeing pornography, and should even be protected from seeing nakedness on nude beaches.
However, the last proposal didn't make it into the draft of the law. There was no mention of child pornography. Also the proposals of the Ministers De Ruiter and Korthals Altes included no child pornography clause, despite repeated pressure from the Christian Democrat fraction. These ministers took the existing prohibition on sex with children as sufficient to combat the production and distribution of child pornography. That argument is, however, questionable, since the origin of much pornography is not known, so that tracking down and prosecuting the producers is often impossible. It should be remembered that the main thrust of the proposed reforms was the repeal of old and useless legislation.
The shift in public attitudes occurred as a result of a number of developments during the early 1980s. The passage of the proposal for reform of the pornography law had been languishing, partly under the influence of the feminist movement. Instead of being sexually liberating, pornography was portrayed by feminist ideologues as an incitement to sexual violence and hatred of women. It was said that "pornography is the theory, rape is the practice" with ideological rather than empirical force. A shock effect was created as a result of the aggressive attacks by Joop Wilhelmus on the "Keep off my Body"81 refuge houses for abused women. Among other things, he published the confidential addresses of these centers.82 The result was a shift of sympathy towards the feminist viewpoint and the politicians who argued for liberalization of the pornography law, instead of being seen as fighters for civil rights, became identified with shadowy figures from a sexist underworld. The Labour Party member of parliament, Hein Roethof, described the feminist initiatives against pornography as "the old morality crusading in a new disguise."83
Sharp reactions in the media followed and Roethof lost his position in the ballot in the next election.84 The feminist criminologist, Yvonne Quispel, argued in the Journal of Rehabilitation KRI for suspension of the liberalization of the pornography bill until clarity could be obtained about the effects of pornography on criminal behavior.85 The Emancipation Council agreed in response to a request for advice from Minister of Justice De Ruiter.86 The fact that the existing law had ceased to function as a result of precedent set by the judiciary and therefore offered complete freedom was for the most part ignored by the lobbyists. In addition, their claims that the pornography had become more sadistic, was not supported by empirical evidence. A 1981 study found that 8.7% of pornography found in sex shops carried images of violence, while 3.1% comprised child pornography.87
When Korthals Altes in July, 1984 let it be known that he wanted to go ahead with the reforms, still without any mention of child pornography, pornography had already been reconstructed as suspect and potentially dangerous. Nevertheless, while all the non-religious parties were in accord with the proposal, they had become conscious of the opposition. The Democrats (D66), with the Christian Democrats (CDA), came up with a proposal to criminalize the distribution of pornography which had been made by committing a crime. This proposal would have automatically included at least some child pornography.88 The minister argued that this was not necessary since the distribution of such pornography already fell under "heling,"89 and was thus already punishable.90
A proposal sent in by the NVSH91 and the COC92 received a great deal of sympathy in the Lower House. As long as people were not concerned about the notion of "offensiveness," but about publications that incited violence, hatred or discrimination against women, then it was the latter that should be combated.93 The minister considered, and later accepted, a bill to this effect, which in 1987 was at last presented to the parliament.94 This reflected the prevailing atmosphere, wherein the legislature felt compelled to make gestures of goodwill to the opponents of pornography. In this climate a blanket prohibition on child pornography was likely to receive wide support.
The eventual criminalization of child pornography and turnaround in public attitudes had a lot to do with the series of spectacular child pornography police raids in Amsterdam sex shops. The debate in the Lower House took place while the memory of the first Amsterdam raids was still fresh. Korthals Altes added to the proposal a prohibition on child pornography: Article 240b of the Penal Code made the dissemination and public display of child pornography a crime. The maximum penalty was set at three months in jail or a fine of ten thousand guilders.
The text of the article read as follows:
This article was added to the new law at the last moment during debate in the Lower House. Because of this, caution with the formulation of wording with respect to the meaning of "sexual demeanor"96 was insufficient. The written preparation and the advice of the Council of State97 were missing, and so the proposal was only handled verbally in the Lower House.98 The members, Rempt-Halmmans de Jongh (liberal), Kosto (social-democrat) and Groenman (democrat) made attempts to nuance the formulation. "Innocent" images, namely ordinary photographs of naked children should not fail under the prohibition. According to Mrs. Groenman, in a comment that passed unchallenged in the House, "There are, after all, pedophiles and they find naked children beautiful,"99 a comment that would no doubt have cost her the following election had she been an American Congressional Representative. The minister later indicated in his memorandum of reply to the Senate, the intended connection with child abuse:
For the neutral observer it would have appeared that the nuance in
the approach of Minister and Parliament had set limits to excessive use
of the law. Photos that had not been made as a result of the sexual
abuse of children would not become the object of prohibition. At least,
that is what it looked like.
The Problem of Definitions
If there is a market for child pornography, what are its
characteristics? We begin this analysis with a definition of terms
"child" and "pornography."
What is a Child?
To be more specific, we are interested here in the question of what counts as a child for the purpose of appearance in pornography.101 This issue raises the problem of comparison between nations, since the ages of consent for appearance in pornography vary from one country to another. In Europe this is usually the same as the legal age of consent for sexual contact: 13 in Scandinavia, 16 in the Netherlands. As long as the identity of the child remains unknown, the limit in practice is lower: the child depicted shall only be regarded as a "child" (Danish law) or be taken as "apparently below the age of 16 years ..." (Dutch law), if the child is clearly below the age of consent. The American law of 1984 attempted to get around this problem by increasing the age limit to 18 years. Effectively this would raise the age of consent "probably not to 18 years, but perhaps to 16."102 The American law that came into force in August 1989 requires that the names and birth dates of all models appearing in pornographic publications be registered, so that the age can be checked, and in the absence of registration the age would be taken to be below 18 years.
The differences in age limits means that material which is considered
child pornography in the United States is not necessarily defined as
child pornography by European law. This was brought home to the American
(governmental) task force on child pornography in January 1985 when they
handed over to their Danish colleagues material which had been seized by
the U.S. Customs as child pornography. They were told that, according to
the Danish law, the material was not illegal.103
Since the amendment of
1989 the difference between American and European definitions has become too great for
official statistics to offer any meaningful comparison. American
statistics on the trade, seizures and prosecutions cannot be regarded as
an indication of the trade in child pornography for current European
What is Child Pornography?
The term "child pornography" is misleading. Ostensibly it is a form of pornography in which one or more children appear. However, the term is often used to refer to images which would not be regarded pornographic had the person depicted been an adult. One general criterion for pornography is its offensiveness to decency or, as in the U.S. precedent Miller v California, material depicting children which is "obscene." With the establishment of child pornography distribution as illegal in the Netherlands it was always clear that the "offensiveness" was not the criterion. This is by implication confirmed by the fact that the notion of "offensiveness" is not taken up in the article 240b of the Penal Code (the article on child pornography), while in the article 240 on pornography in general it is retained. Thus a photograph of a naked child does not have to be offensive to fall under the prohibition. The impression given by the words "child pornography," that the law only concerns photographs in which children are being sexually abused or are engaging in offensive sexual activity, is not correct. Other criteria, however, need to be satisfied. In the Netherlands, the photograph should depict "sexual demeanor."
The criteria, both in the United States and in the Netherlands, have been broadly interpreted. In New York v Ferber the Supreme court declared the "exceptio artis" not applicable to depictions of naked children.104 The Dutch courts have not made a determination on this matter, however, the Minister of Justice declared to the Senate during the debate over article 240b that prosecution of works having undeniable value as works of art was excluded.105 The question of what criterion can be used to judge if a photograph of a child has such undeniable artistic value has not been answered. Nevertheless, the jurisprudential expansion of the definitions which has taken place in the United States has followed a roughly parallel course in the Netherlands. In essence the illegality became a function of the intended effect of the image on the viewer; images that the court judges were intended to arouse the viewer have become illegal.
The American legislature that wrote the first federal child pornography law in 1977, intended to prohibit images of sexual demeanor including "nudity, if such is to be depicted for the purpose of sexual stimulation or gratification of any individual who may see such depiction."106 The Department of Justice was not pleased with the formulation, for it would be impossible to decide upon a criterion for "sexual stimulation or gratification." Nevertheless Stanley107 shows that the judiciary has used the same criterion which was rejected by the Justice Department in the cases United States v Dost108 and United States v Wiegand.109 The American Federal Law, therefore, has been stretched and the result has been sentencing on the basis of the opinion of a judge that the maker intended the work to be sexually stimulating. Current American practice is quite unrestrained in the prevailing climate and simple naked photographs of children are no longer exempt from prosecution.
Developments in the Netherlands are parallel. The original circumspection in the formulation of the law has not been respected by the judiciary. This is the result of the decisions of the Supreme court in the case of the Ministry of Justice v Donald Mader.110 The Supreme Court accepted "an image of a youthful person in such a pose that thereby apparently the stimulation of the sexual arousal was intended" as satisfying the criterion of "sexual demeanor."111 This definition had been proposed by the De Wit child pornography work group which had been established by the minister of Justice in 1985.112 The definition finds a counterpart in the American jurisprudence in the cases Dost and Wiegand. In both the U.S. and the Netherlands, the judiciary gave their own interpretation of the law and sought a criterion for the prohibition of child pornography in the moral effect on the public and the consumers, namely, the arousal value of the images.
Pornography here concerns photographs and films. In the Netherlands, drawings also fall under the prohibition "because serious consideration may be given to the possibility that the drawings are not made directly from the imagination."113 There has been no prohibition on pornographic text in the Netherlands since the change of the law in 1986; including text about sex with and among children. In the U.S. at a federal level there is no specific prohibition on drawings and text, although they would be prohibited if they satisfied the criterion for "obscenity" formulated in the Miller v California decision.
It is obvious that the laws and jurisprudence offer little ground for an objective analysis of the trade in child pornography. Not only is it difficult to compare the facts from one country to another because of varying definitions, but the legislature and judiciary have, in the course of the years, stretched the definitions. This has reached a point where, in principle at least, all naked photographs, including the photographs which one is likely to come across in art galleries and family albums, fall under the prohibitions. Without a consistent and specific definition, any attempt to measure the volume of the trade is a hopeless undertaking. It would be more useful to use the description given by Korthals Altes during the verbal debate over article 240b in the Lower House, which seems to have been forgotten since then:
As a result, material which is for sale in sex shops can be viewed as
(commercial) child pornography, despite the fact that much of this
material is, indeed, quite innocent. For example the Danish magazine
Boy (published by COQ in Holbaek), of which dozens of issues appeared,
contained overwhelmingly ordinary naked photographs, often taken
outdoors in a nudist setting.
The Volume of The Trade
Two distinct categories of claims are made about the extent of the trade in the United States the claims not based on research and others which are. The first category includes claims that the trade was valued at millions and even billions of dollars. The second category includes the Senate Commission under William V. Roth, which investigated the trade and came to the conclusion that the most generous estimate of the value of annual import to the U.S. was $5 million. The commercial child pornography which had been seized in the U.S. did not even reach the neighbourhood of $5 million, according to the Commission.115 The Roth Commission also determined that there was no evidence for the existence of large underground networks of commercial traders, despite the claims regularly made in the media and some official documents. Child pornography was made almost exclusively for private use by the makers:
Estimates of the extent of the total pornography trade in the U.S. range from $1.5 billion to $8 billion per year.117 The high estimates come from Robert Showers, head of the National Obscenity Enforcement Unit of the American Ministry of Justice, established as a result of the Meese report. The unit had the tendency to estimate the pornography problem as being much greater than it is. The actual turnover of the retail trade, including much soft pornography, is therefore more likely to lie closer to the lower figure.118 Roth's most generous estimate implied that the total import of child pornography to the United States was at the most 0.33% of the total American pornography trade.
That is less than the Work group on child pornography of the Dutch Ministry of Justice had suggested. This group, chaired by the Amsterdam Officer of Justice (public prosecutor) Mr. L. De Wit, had been established with a mandate to determine the volume and direction of the trade in child pornography in the Netherlands as a response to the allegations on Dutch involvement made by the U.S. administration. Before legal prosecution occurred in the Netherlands, child pornography, according to the work group, was said to be 1% of the total turnover of all pornography.119
If we assume that the pornography market in the Netherlands (which in
the 1970s had a population of 14 million) was the same as the U.S.
market per capita then we should have had an annual turnover of between
100 and 500 million dollars; 1% being 1 to 5 million dollars. If a large
part, say one quarter, had been sold to Americans, then the export from
the Netherlands to the United States would have been between 0.25 and
125 million dollars. The Netherlands, Denmark and Sweden were, according
to sources cited by the Roth Commission,120
jointly responsible for 85%
of the export to the U.S. The Netherlands was said to be responsible for
70% of the total according to the De Wit work group,121 which implies a
total export from the Netherlands to the U.S. of 0.42 to 2.2 million
dollars. These estimates suggest that the 5 million dollar claim of the
Roth Commission should be considered exaggerated. Further, it must be
reiterated that the American definitions are generally much broader than
Estimate of the World Trade
How realistic is the estimate of 1%? It must be kept in mind that the statistic applies to the first half of the 1980s, by which time the sale of child pornography had been seriously inhibited by legal prohibitions in many countries. For an estimate of the turnover in earlier years we have made use of an (unpublished) report of Professor E. Braches,122 based on a systematic registration and dating of photograph magazines and booklets which were available in Europe between the 1950s up until 1984. Individual slides and photographs were not significant elements in the trade. Films were not registered by Braches. He claims that his count of European material is more or less complete, while his count of American material has an incidental character. Braches argues that the American production was less than the European (although European publications typically included photographs made in America), which agrees with the ILIC report of 1980. His inclusion of some American material, however, enabled him to show that child pornography became available in the United States before Europe. The study cannot be used as a measure of how much material was available in the U.S.A.
Braches' study shows that production of child pornography is largely a phenomenon of the past. About 1980 the production almost completely came to an end. Our count, which includes the supplementary material from the years after 1984 up to and including 1990 which was gathered by us, is as follows: 508 magazines contained exclusively photographs of boys and 288 magazines contained almost exclusively photographs of girls. Since the girl magazines are heterosexual in nature they sometimes contain boys engaged sexually with the girls, but are counted as girl magazines since the focus of attention is on the girls.123 Between 1970 and 1980 there appeared over the entire world an average of nearly five new publications per month. That is less than 2% of the 264 monthly publications that Densen-Gerber claims to have counted.
The quantity of each issue published, the primary circulation,124 is difficult to assess, since no statistics are available except those of the producers, which we have accepted as a good guide in view of the fact that they do not differ significantly from the claims made by the principal institutional opponents of child pornography. According to Joop Wilhelmus, who published the Lolita series, 25,000 copies of each issue were printed at the high point which eventually sank to 5,000.125 The Danish trader, Willy Strauss, said that his first magazine sold 19,000 copies within one week.126 We can assume that the market for girl magazines was greater than for boy magazines since we would expect more heterosexual then homosexual buyers. According to Braches this is also evident from the greater production regularity and lower price127 of girl magazines.128 It seems unlikely, therefore, that the boy magazines reached the same circulation. According to the Amsterdam publisher of Paedo Alert News, which contained English language stories of sex with boys, political information on pedophilia worldwide, and some nonpornographic illustrations of clothed boys, the primary circulation of his magazine worldwide never amounted to more than 2,500 per edition.129
Using Braches' count, the European production can be assessed as somewhat over 700 issues, leaving the American and possible Asian production out of the picture. The highest available indication of world production comes from Stanley, in connection with a content analysis which he was plarning:130 1,065 issues, including 540 issues in which at least one child was depicted engaged in sexual activity.131 If we estimate the primary circulation of each issue at 10,000, which is probably too high for the boy magazines, and the price per magazine132 at $10, then we arrive at a total turnover of $106 million. The sale of films was much less in number, but significantly more expensive per unit. If we assume that the monetary turnover was about the same for films and magazines, then we come to a total world turnover of $212 million. Measured over the 14 years in which significant production occurred, this comes to $15 million per year.
This is exactly 1% of the $1.5 billion that is a likely figure for annual retail turnover for the United States. The $1.5 billion however, is the turnover for the middle of the 1980s. In the 1970s, when most child pornography was manufactured, the total pornography turnover must have been less. On the other hand, this figure is based on the American market only, so that the world market must have been larger. In the final analysis, the claim that 1% of all pornography is comprised of child pornography seems a reasonable estimate.
These figures give no more than an impression of the order of magnitude. In view of the number of assumptions that have been made they should not be seen as a precise estimate. The assumptions with respect to price and primary circulation and the role that films played in the total are generous, so it is very unlikely that the actual turnover could have been much larger.
The Dutch Share of the Market
Because of the popularity of Lolita, the Dutch share of the world market may have been relatively large. If the average primary circulation of all 192 issues is estimated at about 15,000, then this series alone constituted a quarter of the total.
At the sittings of the Roth commission of November 29 and 30, 1984 the Netherlands and Denmark were accused of responsibility for 85% of the child pornography import to the U.S.A. According to the De Wit report,133 between April 1, 1984 and April 1, 1985 the American customs seized 2,069 shipments of child pornography; half of the total confiscated pornography. A maximum of 70% could have come from the Netherlands. How reliable are these facts? Stanley,134 on the basis of his count taken from the New York135 Customs' lists of seized pornography came to an estimate of 25 pieces of child pornography per year. As we have already seen, the U.S. definition of pornography is broader than the European.
Dutch officials were also given confiscated material: 85 packets from the Netherlands. The Roth commission later admitted:
The De Wit work group, who mentions eight rather than five correct addresses, conducted police investigations.137 This "yielded no worthwhile results," according to the work group, thereby suggesting that the addresses did not lead to child pornography exporters. It is remarkable to note that the information received from the American government by the Dutch government has seldom or never led to any criminal prosecution. In 1986, when the new article 240b was in force, and the number of seizures of "Dutch child pornography" handed to the Dutch Department of Justice by the American customs authorities was reported to be 111, one would have expected at least some prosecutions had the material actually been child pornography.
The American "facts" also explain how the
Amsterdam police spokesman Wilting could think that half the pornography trade concerned child pornography.
He must have received this from the American customs. Indeed, William Von Raab, the Commissioner of
Customs, stated to the Roth commission that "of the 4,266 pornography seizures made in the fiscal year 1984, approximately
one-half involved the exploitation of children."138
This half was
the above mentioned 2,069. Apart from the reliability of the figures and
the differences in definition, the proportion of seizures obviously does
not reflect the proportion of production that constitutes child
Convictions as a Measure of the Market Size.
The relatively small size of the market is also apparent from the number of convictions. In the United States, between 1978 and 1984, when prohibition only applied to commercial exchange, 69 persons were accused and 64 sentenced on the basis of various federal child pornography laws.139 In 1984, besides trading, the premeditated receipt of child pornography became illegal, irrespective of the commercial element. There were 164 convictions over the following two years, however, these were for the most part the result of entrapment operations by American government agencies. Operations such as "Looking Glass" and "Borderline" offered child pornography in order to arrest and bring to trial unsuspecting buyers, some of whom may not have known what they were buying, or would never have bought any child pornography if it had not been offered to them.140 In Denmark there were two convictions between 1980 and 1985.141
In the Netherlands, after the prohibition to the end of 1988, there
were seven convictions. Table 1 shows that directly after the
introduction of the child pornography law on May 21, 1986, the number of
pornography cases rose briefly. The rise may have been the result of the
pressure on the police from the Ministry of Justice to act forcefully
against child pornography.142
Convictions, however, did not result. Probably many of the cases were difficult to prove, or the police were
on the wrong track, which is suggested by the number of investigations
that were closed without conclusive evidence being found.143
the Justice Department gave less priority to child pornography cases,
which may have been the result of the fact that hardly any
investigations got as far as the courts.
After 1984 the magazines and films virtually disappeared from sight. After that date the only known Dutch publications were the last seven issues of the David146 series which ran from 1983 to 1987. In particular, after 1987 another category of magazines and video films has made a comeback: these do not show sexual activity, but rather photos and films in a nude setting or only one child posing. This concerns German productions in general. Our analysis is made more difficult as a result of this phenomenon: it is doubtful whether the photos and films involved could reasonably be considered child pornography and, in any case, this is not the kind of material that arouses great interest among law enforcers.147
In Germany the news and entertainment magazines Jimmy and Philius are produced, as are the photo magazines B-Engel, Andy and Boys Art Magazine. The latter two first appeared in 1989; until the end of 1990 seven issues were published of each. B-Engel dates from 1987; between that year and 1990 14 issues came out. Philius and Jimmy contain mainly news, book and film reviews, and short stories, and are illustrated with some pictures of naked boys, though no sexual activity is shown.
It is questionable whether the dissemination of these magazines is prosecutable. We presume that this is not the case: the publisher, Medium Verlagsgesellschaft in Berlin mentions its address, telephone and bank account numbers in the magazines, rather than keeping them secret, and it also uses the official International Standard Serial Number (ISSN) for its publications. Moreover, many books which contain photos of a similar nature are offered and sold freely, both in Germany and the Netherlands.
We have not included these books into our count. The reason is that the magazines are largely traded through sex shops, whereas we have encountered the books only in regular book shops. Since the magazines show only marginally or non-sexually explicit pictures, our definition of "child pornography" is indeed very wide. The inclusion of the German productions in our tallies (see Appendix A) may suggest that child pornography trade is re-emerging in Europe. However, in view of the marginally-sexual nature of the material and its relative scarcity, this conclusion would be exaggerated and premature. Moreover, a return to the heyday of the 1970s is very unlikely because of the prohibitions that have since been introduced in many countries.
In Jimmy, nude pictures of young boys are offered for sale. These do not show sexual activity either, although in some of them the boys do have an erection. Furthermore, another German publisher sells videotapes. From the brochure it appears that these do not show sexual activity either, at least not with persons who are apparently under 16 years of age. Exceptions are a series of eight Japanese tapes (the age of consent in Japan is reportedly 13 years) and some other tapes that have been recorded in South-East Asia. However, the age of the Asian boys is easily underestimated by Europeans.
Police investigations of pornography businesses sometimes discover small stocks of old leftover material being sold from under the counter. Apart from that, there is the informal swap circuit, but no reliable estimate of the extent is possible except to note that the volume "traded" in this manner must be small. Despite the policy of decisive police intervention in cases of suspected sex with children the number of cases where pornography has been discovered and sold remains incidental. One case concerned four Englishmen operating in Amsterdam.148 In 1990 a Dutchman was arrested for mailing videotapes to the United States for $200 to $300 each. The tapes, as could have been predicted, had been intercepted by the U.S. Customs.149 He got a suspended sentence of three months and a fine of 3,500 guilders (about $l,700).150 The identities of the children were never established, and the opinion of a pediatrician was used as evidence that the models were below age 16.
In any case, the major channels for retail trade of child pornography, the pornography shops, were as good as closed by the middle of the 1980s. After the published magazines vanished the amateur photographer, Fred V., who had been one of the suppliers during the peak years of the industry, continued to sell photographs to a small circle of individual contacts after the disappearance of commercial channels. In 1988 he was arrested and sentenced, but the charges were for the sexual activity ("fornication") arising from the making of the photographs and films, not for the dissemination thereof. A second case against him for trading in child pornography never eventuated, despite attempts over two years by the Public Ministry of Justice. The photographs and films which were implicated in the criminal proceedings against him were apparently not traded on any significant scale.
It is clear that the new laws and the actions of the Justice
Department have essentially eliminated the trade in child pornography.
Indeed, the new prohibitions had been immediately effective in every
country where they had been enacted. The sales were of such
insignificant volume for the pornography dealers that the advantage of
trading was greatly outweighed by the disadvantage of the increased
risks. That is confirmed by the absence of criminal prosecutions, despite the
efforts of the police and the Justice Department. The opinion of the
Officer of Justice in Utrecht, that three months' jail was such an
insufficient disincentive that the "commercial lads waltz whistling
into the jail"151 seems not to be based on an adequate
understanding of the facts.
According to the De Wit work group, child pornography is both made by individuals and published commercially. In recent years, according to De Wit, the commercial material is no longer available.152 That is not entirely true as we shall see. The privately made material may be retained by the individual photographer for personal use only, or may join the informal "swap" circuit, or it may be sold to commercial producers. The work group suggested that the American claims that 70% of all commercial material comes initially from private sources was correct. Typical of this material is the generally poor quality, and usually black and white photographs. The photographs were apparently not made with publication in mind. One may also conclude that a small price was paid for the photographs:153 Joop Wilhelmus offered a gift magazine in exchange for each photograph received from his readers, as became evident from his correspondence with the U.S. undercover agent, Toby Tyler.154 In the magazines Wilhelmus also offered $350 for the opportunity to take the photographs himself.155
An example of commercial production is reported in the final report of the Roth Commission.156 The British citizen, Eric Cross, invited two Florida girls of 10 and 11 for a holiday excursion with the knowledge of the parents. In a hotel he made hundreds of naked photographs of them, returned them to their parents, and left for Amsterdam with the exposed films. Some of the photographs were intercepted in a photolab in Amsterdam and handed over to the police. Cross was arrested, found to be wanted in England, and was handed over to the British authorities. He was eventually brought to Florida where he was sentenced to 28 years and after an escape and rearrest, to another 95 years. Apparently not all the photographs were seized, and a number of them were published in three booklets titled Linda and Patty, which according to the title page was produced by Delphi Press in Copenhagen.
In the case of Cross, the commercial aim was clearly premeditated. This is not so with the majority of the material found in commercial publications. Examples of leakage of private photographs into the commercial trade are easy to find. In the Netherlands between 1983 and 1987, the series which appeared under the title David, contained photographs which came from the collection of a private individual who, apparently, never intended them for publication.157 After his death the photographs fell into the hands of a relative who turned them to profit.
Almost all other magazines consisted of photographs sent in by individuals. In order to avoid criminal proceedings for indecent assault or sexual abuse of children, some publishers used only photographs made in other countries. The same applies to films. Many films were produced by the firm COQ in Holbaek in Denmark, under the title Golden Boys. The ambiance (clothing, landscape, housing style) of various films we saw suggests that these were made in the United States, possibly in the West.
One of the most active photographers of the naked child in the Netherlands was Fred V.,158 who worked under the name of Akki. In September of 1988 he was arrested when a client of his attempted to bring photographs into the United Kingdom. The arrest of three Dutchmen, friends of Fred V., followed: Chris, Anton, and Ferdinand.159 Ferdinand and Anton had often visited Fred in the company of their young boy friends. This case, which would be described as a child sex ring operation by Kenneth Lanning,160 is fairly typical of situations that lead to pornographic photography of children and, in the past, the leakage of the photographs into the commercial circuit.
The story of this affair is described below (Child Sex Ring Discovered), an analysis of the police dossier is set out in Appendix D, and interviews with three of the boys in Appendix E. The media images of very small children, kidnapped, drugged, violently sexually abused, often alleged to have been subjected to bizarre perverse abuse before being murdered and buried in deserted places,161 are as exaggerated as the claims of millions of children and billions of dollars. For example, according to Kenneth Herrmann of DCI: "The hundreds of millions of children involved in this broad problem all suffer irreparable damage" (our emphasis).162 While we do not in any way condone the exploitation of the boys in this case, the facts which emerge from our investigation into the way in which the children themselves experienced their involvement provide a more balanced picture of reality than popular views about child pornographers and their victims suggest.
Here we are concerned with the modus operandi of Fred V. Apart from the photographs he made for the pornography trade, he also worked for ordinary youth magazines which gave him a degree of legitimacy and easy access to events where many children participated. The international youth soccer tournament in Oslo, the Norway Cup, was one of his regular assignments. Here he had access to the changing rooms to take photographs. However, at these events he produced no hard pornography. He dealt commercially in his non-hard core work. During the 1970s he earned money from these activities, but donated it to charities, among others, Mother Theresa and third-world children.163 While he cannot be accused of large scale commercial production of child pornography, he is certainly guilty of abusing the trust of many boys and their parents. Fred V. knew how to get on with boys, and was often away on camping trips with groups of boys, with the knowledge of their parents.
The parents did not suspect that his caravan (travel trailer) served as a mobile pornography studio. Fred V. encouraged the boys to play sex games with each other, which he then filmed and photographed "as part of the fun." Some of this material was hard core, showing the boys engaged in a variety of activities. The boys were told that the photographs were exclusively for Fred V.'s own use and would not be disseminated. Later one of the boys said that he was disgusted by what he had been doing, and several others expressed regrets, although it is not clear how much these statements, which were made to the police, had to do with the discovery of the activities and the way in which the boys were interrogated.
The photographs and films show the boys entering vigorously and with pleasure in the sex games.164 In this case, all three boys we interviewed felt themselves more abused by the police than by Fred V., whom they nevertheless saw as someone who had broken his word and exploited their trust.165 The boys trusted Fred, as did Ferdinand and Anton. Ferdinand and Anton knew that photographs were being made, however, they had nothing to do with the distribution of pornography. Nevertheless, they must have known about Fred V.'s publications under the name of Akki, and were at least a little naive not to think that he might be exploiting their trust. In any case, both they (jail sentences) and their boy friends (frightening police interrogations) have suffered for these follies. Fred V. obtained no sympathy from the boys whom he had duped.
The result of police and judicial activity was that the supply of new
photographs vanished. It cannot be known how much commercial production
might have continued to take place had the supply of new material been
maintained. The last issues of Lolita contained mainly reprints
material and urgent pleas for the readers to send in new photographs.
There was no reply and this was apparently one of the last straws to
break the back of the commercial industry.
The Number of Children
The only way to estimate the number of children who have been involved in the production of child pornography is by counting the faces which appear in the magazines and films. There are several problems, including the possibility that the same children may be difficult to recognize from one publication to the next due to such factors as age change between photo sessions, differences in the setting, absence of the face or other recognizable characteristics,166 and so on, so that double counting is likely to have occurred.167
In Appendix B is the result of our counting which came to an average of 11.1 new children per magazine. On the basis of the estimate of 1,065 published magazines, this implies almost 12,000 children have been associated with child pornography in some way or other. The films have not been counted, however, the number of children appearing in the films is much smaller than in the magazines, usually no more than two per film, and furthermore the film actors are often depicted in the magazines.168
The figure of 12,000 is likely to be too high, first because of the double counting. Also, the sample we used for our analysis, unlike the complete set used by Braches, did not contain pirate publications, although these were also made and of course do not represent any new children. Furthermore, we counted all the children who appeared in the magazines, including children in fully clothed portrait photographs who may not have appeared in any naked or pornographic scenes. Moreover, of Stanley's 1,065 magazines, only 540 contained photographs in which sexual events were taking place. The balance contained "at least one depiction of a minor engaged in lewd or lascivious 'exhibition of the genitals'." If we multiply 11.1 by 540, a likely estimate of the children involved in sexually explicit pornography, to which the remaining magazines add only incidentally, we arrive at about 6,000. Furthermore, since many of the children are depicted in more than one magazine, often in more than one series, the number of new children discovered tended to decrease as we progressed through the material at hand. Therefore, our figure of 11.1 should not be extrapolated to all magazines.
Stanley169 estimated 5,000 as the minimum number of children. In view of our counting, an estimate of 10,000 as a maximum seems not unreasonable. We can say, therefore, that the number of children involved must lie between 5,000 and 10,000. This number comes nowhere near the estimates of Robin Lloyd (300,000 boys) and Densen-Gerber (1.2 million), for the United States alone. Nevertheless, 10,000 children is an impressive figure. The child pornography problem may have been crassly overestimated by some, but it is also not possible to dismiss it as negligible.
The statistics in Appendix A make it clear that the
not simply a trading land in the past, as the De Wit report asserted.
The Netherlands was, alongside the United States, Great Britain,
Germany, Denmark and Sweden also a producer and, as we see in Lolita,
responsible for some of the hardest material. Important people in this
industry were Joop Wilhelmus and Fred V., both Dutchmen.
What There Is To Be Seen
Child pornography has been called the "epitome of hard core pornography."170 There may be some justification for some of these sentiments, especially when we consider the manner in which some children have been exploited for the production of the pornography, but these cries of indignation do not tell us what the pornography actually contains. Statements made by the police suggest that the pornography must be terrible. According to the Officer of Justice R.A.M. Behling, making an inventory of the pornography in the V. case was not fun: "It was horrifying. Every hour the officers had to stop work and let another take over."171
We spent many days on end making our content analysis without the need to stop every hour. Nevertheless, in view of the obvious abuse depicted in some of the magazines, we can identify with the claims of some officers. The impression that one forms from looking through large amounts of child pornography are, of course, highly subjective. By far the majority of the material was neutral, except perhaps for people who might be offended by the fact of nakedness. While the pictures of laughing children posing naked on beaches are quickly forgotten, the anger that arises from seeing some photographs of a small girl forced to suck a large phallus and to submit to penetration with a coke bottle, or the series depicting the anal rape of a teenage boy, leave one disturbed and angry for a long time.
Our content analysis is an attempt to objectively establish the hardness of child pornography. We have used a hardness scale as follows:
Appendix C contains a more detailed breakdown of our results. Our main conclusions are given in Table 2, in which the distribution of the photographs over the seven categories are given. The categories 1,2 and 3, in which no sexual activity can be seen, comprise 62% of photographs. With boys, this is 68%, and with girls it is 55%. The hard pornography, being categories 4,5 and 6, incorporates 18%, with 9% for boys and 26% for girls.
Appendix C shows the statistical comparisons for boy versus girl magazines, the land of origin, and the comparison of photographs where one child appeared to photographs showing two or more children, and to photographs in which adults also appeared.
The pornography in the girl magazines was found to be significantly harder than in boy magazines.172 Denmark and the Netherlands received significantly higher scores with respect to hardness, and Germany scored by far the lowest. In the German material we analyzed, almost none of the photographs contained explicit sexual activity.
Photographs containing two or more children were significantly harder than photographs depicting only one child. More interesting is the finding that photographs with adults, 22% of the total, were significantly harder than photographs with two or more children. This was particularly marked with girls.
We attempted to judge how the children experienced the photography
sessions by analyzing their expressions. There were difficulties with
this exercise. First, the interpretation of facial expression is
subjective. We found it difficult to tie the scoring to objective
criteria.173 Some of the photographs did not show faces, many of which
fell into category 6. We attempted to solve this problem by counting
only those photographs in which the expressions were unambiguously
happy, and those that showed unequivocal pain or fear. As a result 81%
of the photographs remained unscored. Of the remainder, 18% were
characterized by obvious pleasure and laughter, while 1% showed negative
reactions. We conclude that the comments of the police spokesman
Wilting, "The horror radiates from their faces," are a rather
one-sided interpretation. Further conclusions we believe, cannot be
Our content analysis did not include film and video material, nevertheless, we are able to draw some conclusions about films and videos. The film material, usually super eight, generally dates from the 1960s and 70s and comes largely from the U.S.A., though some films were made in Europe. The video material is more recent, is usually of very poor quality, and is circulated through informal channels. One of the videos, typical of this genre, showed candid scenes taken in a boys' changing room at a sauna. It was rather innocent material, perhaps pathetic but certainly not violent or dangerous. Several videos show bored youths masturbating for the camera while having difficulty sustaining their own arousal. One Japanese video showed anal intercourse with a very young boy who was clearly not enjoying the experience. Other videos, most often made in private homes, tend to be similar to the films of previous decades. The most striking unifying feature is the poor quality.
Frames from the films were widely pirated for reproduction in printed
material so that this material has been indirectly included in our
content analysis. In almost all the films we have seen, the children
were either indifferent or were laughing and entering into the activity
with gusto. We have not seen any films in which children are subject to
brutal or sadistic rape, although some of the photographs we analyzed
suggested that this might have occurred. We found no evidence of
"snuff films." No one we spoke to had ever seen one or knew
where to get one. Some of the collectors we spoke to have large
collections containing material from all over the world and informal
connections with many other collectors. We believe that if snuff films
had ever been made we would have been able to trace them. No snuff films
have been discovered by police anywhere in the world, or reported in any
criminological or sexological literature that we have been able to
discover. It is our conclusion that they do not exist.
Child Sex Ring Discovered
In September 1988 it seemed as if the American allegations against the Netherlands must have been at least partly true. "Pornography Airlift prime evidence for role of Dutchmen," announced one headline on De Telegraaf, the largest Dutch dally.174 A certain triumphant sensationalism rang through the article:
The discovery of a true life air lift of young London lads who, under the leadership of their school master Brother Leonard Jack J., made their way to the Netherlands to work as child pornography models, has yielded the first unequivocal evidence that the Netherlands has played a key role in the international distribution of child pornography, just as the Americans have been saying all along. The Minister of Justice Mr. F. Korthals Altes has always denied that our country ever played an important role in the production and distribution of child pornography. His assertion has now had the rug pulled out from under it according to Scotland Yard. The Utrecht Morals Police175 and also Scotland Yard's inspector Baker were painfully embarrassed to discover that the case, which they had carefully kept out of the publicity until now, had been discovered by our paper.176
The article did not explain how the brother was able to bring the children, with the knowledge of the parents, to the Netherlands. It remained "a total mystery," according to the headmaster of the school where Brother Leonard Jack J. was employed. The solution to the mystery is simple; the story was not true. No boys had been shuttled backwards and forwards, however, Brother J. had accepted some photographs from Fred V. while visiting the Netherlands. His suitcase was accidentally off-loaded at the wrong airport and so fell into the hands of Customs officials. Following his arrest in England, the Dutch police were informed. The police in the Netherlands were taking their time, in an effort to uncover the extent of the pornography activities of Fred V., a known figure to them.
The response of the police in the Netherlands was not fast enough for Scotland Yard, so that the British police leaked the story to the media. When De Telegraaf let the Utrecht police know that the story would break on the following Saturday, there was no time to build up a case in the quiet.177 On Friday evening Fred V. was arrested and his friend Chris the following morning. The other two, Ferdinand and Anton were arrested early the following week.178
The case is interesting because of the large range of sexual relationships and contacts between men and boys, varying from serious abuse to genuine love relationships. It gives an insight into the complexity of man-boy sexual relationships, the context in which almost all boy child pornography is made.179 It also makes it clear how things can go amiss when these kinds of sexual contacts are photographed and filmed. It raises questions about the methods employed by the police who were under pressure to get results. Both because of domestic Ministerial directives to act decisively and because of the international spotlight on the case, the police clearly lost sight of the ultimate purpose of the laws which they were enforcing. The interests of the children who had been involved were forgotten and they became pawns in the effort to get the case wrapped up.
In Appendix D we analyze the police dossier for the case against Fred, Ferdinand and Anton. Ferdinand and Anton had never been involved in the manufacture or the distribution of pornography, which is apparent from the statements contained in the police dossier.180 Furthermore, the prosecution of these men did not occur in the interests of all the boys involved, indeed, the opposite was the case. Chris was apparently not involved at all, and eventually no charges against him were brought.
The dossier shows that the Justice Department did not doubt for a moment the necessity of all the prosecutions despite the fact that not one of the boys made a negative statement about Anton and Ferdinand. This was especially true of Johnny, Ferdinand's youngest friend, who was deeply distressed by the arrest of his adult friend. The men were arrested because the police and Justice Department felt they could book a great success in rolling up a child pornography network. Officer of Justice Mr. R.A.M. Behling saw "for the first time a chance to lay bare a distribution center of child pornography,"181 and "The distribution territory, the volume, the form, the frequency and the aim; I want to know lots more."182
Eventually, however, the cases against Fred, Ferdinand and Anton were based entirely on the sexual contacts with a number of boys. A case against Fred for distribution of pornography was to be announced "as soon as more information could be gathered." However, the distribution of child sex photographs of any significance has not been established. After two years the Ministry of Justice had to close the investigation. Apparently, at most Fred had sold nude photographs to legitimate magazines, and the pornography which he had made was distributed by hand to small numbers of personal friends. No pornography prosecutions resulted.
The use of the media by the police to spread distorted and alarming stories can also be criticized. It was claimed that the children had declared they were "revolted" by what had happened.183 The term had been used once only by one of the children. The positive statements of most of the children were not mentioned to the media. In reality the picture is more complex and varied. Of the statements summarized in Appendix D, two are positive, four, including the girls, are neutral, and seven are slightly to very negative. With respect to Anton, only the statements of three boys are available, neither positive nor negative. With respect to Ferdinand, four boys made statements; of these two (Johnny and Stephan) made extremely positive statements. A third (Peter) was rather neutral. The fourth statement was made by a 10-year-old, whose stories were obviously the product of a rich fantasy and not corroborated by any other facts or statements, as also the police had to agree. Johnny declared at the end of his statement of the first interrogation:
For Mr. Behling such statements were irrelevant:
This is an example of "heads I win, tails you lose" thinking: if the boys say they have been abused then they have, and if they say that they have not, then they still have been. Behling ignores the fact that boys are sexually excitable and that sex might be a positive experience for some of them. With Behling's logic, all disagreements are won in advance. Whether he is right is another point.
In our opinion, the boys should be the ones to decide that, in particular now that have become adults. We point out that Johnny and Ferdinand's other friends are no longer minors. Their friendship with Ferdinand continues to this day undiminished, as is their appreciation for what they experienced with him during their adolescent years. One of us visited four times to conduct interviews with Ferdinand for this article. On every occasion one or more of the boys dropped by, unannounced, on several occasions with their girl friend in arm. Indeed, it was because of the sustained good relationships between Ferdinand and the boys that it became possible to obtain the interviews. (Transcripts of the three interviews are presented in Appendix E.)
The suggestion that protection of children played any role in the actions of the police and the Justice Department in this case is difficult to accept. Johnny had to submit to four interrogations; the first time he was in tears and so upset that the interrogation could not proceed.187 The application of force, such as threatening to pick him up at school, and the threat to bring in the court-commissioner to approve special methods, make it dear that the police were only interested in scoring another conviction. The officer concerned, Bert Goselink, revealed his inability to identify with the boys or to learn anything from this case when he said later in an interview:
These are astonishing comments from a man who has dedicated himself to breaking up such relationships. If such a relationship is to be condemned, then it should be on the grounds of abuse or exploitation. If the relationship can be defended, then it is a very odd, probably invalid, argument to claim that imminent abandonment by the pedophile justifies police intervention. Furthermore, abandonment of a child by a pedophile is but one of the ways in which an adult-child relationship can come to an end, if it does so at all. Interference from outside is another way, and is probably more common.189
All three boys interviewed by us have acquired a deep resentment and loss of respect for the police. They blame the entire case on Fred but would not make any negative statement about Ferdinand. This case highlights the need for the law to have power to intervene where children are being abused and exploited for pornography. Fred V. did not know how to set responsible limits and it is proper that he be made to pay a penalty. It is clear that Ferdinand is capable of building up relationships bated on mutual respect and affection, relationships which continue after the sexual component is long over. At the same time, Ferdinand can be accused of carelessness in his friendships with Fred he ought to have been able to protect his boy friends. He knew of Fred's photography. He was at best naive to believe Fred's promises. Nevertheless, the Justice Department should not have taken this case further thin Fred V. The fact that Johnny regularly wrote to and visited Ferdinand in jail and maintained their relationship throughout and after his release,190 including the sexual contact, makes a mockery of the criminal law in this case.
Since this case the law has changed in the Netherlands. Sexual contact between adults and children between 12 and 16 years has become a "crime on complaint."191 This means that the Justice Department cannot act if the persons involved do not want a criminal prosecution to take place. In cases where the "victims" do not see themselves as victims and are injured by the actions of the Justice Department it is difficult to see any value in prosecution. The amendment of the law in this respect is seen in the Netherlands as an improvement. It is yet to be seen if the courts will again stretch the definitions to eliminate the intended protection of the rights of teenagers to make a choice in these matters.
This analysis shows how difficult it is to categorize the world into
black and white, into simple categories of good and evil. A closer look
at typical circumstances under which child pornography came into
existence, while revealing abuse and exploitation, also revealed loving
relationships and quite surprisingly resilient loyalty of some boys for
their adult friend.
Conclusions and Comments
We have called the claims about child pornography "myths." The existence of child pornography is certainly not. The myths are the exaggerated estimates of the number of children, the volume and value of the trade, the profits that are alleged to have been made, and the horrifying damage said to have been done to the children. In fact, on many important points our conclusions are more or less the same as the conclusions of the ILIC, the Senate Commission under William Roth, and the De Wit work group in the Netherlands. The results of these findings have not convinced the crusaders in the past, and no doubt our results will be ignored by those whose political agendas are not served by the facts.
This, of course, does not diminish the fact that several thousands of children have been involved in the manufacture of child pornography. The pictures rarely showed sexual abuse, and often did not show any kind of sexual activity. Nevertheless, the rights of 1the children as models and actors has usually been ignored: in most cases the photographs have been published without the permission or knowledge of the children. The use of the images, even when no abuse has taken place in the making of them, could be seen as an assault on the integrity of the children involved which justifies the sanctions which now exist.
The criminal sanctions appear to be effective. Outside the small scale swap circuit, child pornography is no longer found, despite the fact that the maximum penalty in the Netherlands is three months, small in comparison with the maximum penalty for indecent behavior with a child (six years) and heling (three years). Denmark has a fine, which has not made the prohibition less effective. When the children can be traced, the producers of child pornography can be charged with the crime of indecent assault.192
Some police and Justice Department officials, including Mr. Behling, urge for an increase in the maximum penalty. This would make it possible to place the accused in custody while police inquiries get underway.193 In the event that it is thought necessary to make this change, despite the demonstrable effectiveness of article 240b, this could be accomplished by a change to the Code of Criminal Procedure.194 Enforcement of the law does not provide an argument for a review of the maximum penalty.
Finally, there are remarkable parallels between the developments in the United States and in the Netherlands. In both countries the distribution of child pornography was prohibited in the interest of protecting children, and was defined as a crime of child abuse. The effect of the photographs on the consumer was irrelevant. In both countries the jurisprudence has determined a criterion for prosecution with is anchored in the effect that the photographs might have on the viewer. In the United States this was a result of the decision in the cases Dost and Wiegand. In the Netherlands the Supreme Court accepted the definition of the De Wit work group in the case against Donald Mader, in which the effect of the photograph on the viewer stands central. All these cases involved innocent photographs, none of which showed any sexual activity. It is remarkable that on both sides of the Atlantic the same shift has taken place. In both countries, dissemination of child pornography has once again become a crime against decency.
The work leading to this study was started in September 1987. At that time child pornography was a major issue in the Netherlands. In 1984, the U.S. administration pressured the Dutch government to act against the allegedly massive production and export of child pornography from the Netherlands to the U.S. In 1986, with the enactment of a new law against child pornography, the Dutch ministry of Justice had made the attack a high priority. In the Spring of 1987 a photo exhibition at a gay gallery in Amsterdam was raided for purportedly displaying child pornography (in fact, none of the photos showed any sexual activity) and charges were brought against the photographer, the Amsterdam-based American Donald H. Mader (who was later convicted and required to pay a 500 guilder fine; the conviction was eventually overturned on the 30th of March 1992 at the appeals court in Amsterdam). Most news media uncritically copied reports from U.S. sources and from private lobbying groups according to which child pornography trafficking constituted a multi-million (or multi-billion) dollar underground business that exploited countless children. Subsequent investigation found little evidence supporting these claims.
However, the sensational reports were ostensibly vindicated by events in the village of Oude Pekela, which started in May 1987, when Oude Pekela became the scene of a child sex abuse affair comparable to American day care center cases. The investigation and panic lasted for one and a half years, eventually leading to the largest investigation by the Dutch National Police in the history of the Netherlands. Children were repeatedly interrogated by their teachers, social workers, police, parents and especially by the town's general practitioners, Dr. Jonker and his wife, Dr. Jonker-Bakker, and finally by Dr. Mik, a retired psychiatrist. The extensive investigation never produced any evidence that the progressively escalating stories of the children, including allegations of child kidnapping on a large scale, use of drugs, manufacture of child pornography and Satan worship, were true. The only thing that could be proven was sex play between two toddlers. This event triggered the allegations by Dr. Jonker and his wife of child sexual abuse on a massive scale. There was plenty of evidence of mass hysteria. (For a discussion of this, see Rossen, 1989, Mass hysteria in Oude Pekela. Issues in Child Abuse Accusations, 1(1), 49-51.)
At the same time reports began to appear about the policy of U.S. law enforcement agencies which involved the use of child pornography as "bait" to entrap actual or suspected child molesters. In general the radicalization of the policy to combat child abuse led to major, highly publicized cases starting with the Jordan, Minnesota and McMartin accusations in Manhattan Beach (1983-1990). Unlike the exaggerated claims concerning the child pornography trade, reports of American cases failed to gain significant attention in the Netherlands.
On the other hand, since the mid-1980s the Dutch media have been full of exaggerated stories of local events, smaller in scale but incorporating the same elements of rumor panic and collective paranoia. Crusaders against child abuse successfully projected their political message on the waves of public concern. We considered that a book which analyzed the facts on the child abuse industry and the claims it is making, would be helpful in countering the widespread ignorance of the issues involved and the growing fears throughout the community.
In the course of 1988, we decided to give priority to writing a book on Oude Pekela alone, which continued to be the single most important child pornography affair in the country (even though not a trace of pornography, or of pornographers, has ever been detected that could be related to this case). During our investigation we made contact with the chief officer of the Oude Pekela task force, Mr. Wim Joosten, with whom we shared our findings. It was our belief that inexpert interrogation of the children over a long period by many persons had led to children telling stories based on the fears and fantasies of the people conducting the interrogations, and ultimately to distortion of the children's memories. The results of the Oude Pekela investigation was written up as a Masters thesis209 by one of us (B.R.) and submitted to the University of Amsterdam. The thesis, which deals principally with the collective psychology of rumor panic, was later published in a summarized form.210 English translations of the book in manuscript form are available from the author on request.211
The thesis did not include our pornography study, since no pornography had been made in Oude Pekela and our findings were therefore irrelevant. Nevertheless, the claims concerning the large scale of child pornography trade that were vociferously made in the wake of the Oude Pekela affair led us to conclude that a serious attempt should be made to assess the actual volume of the trade, the number of children involved and the nature of the depicted acts. This study was started as a project to be included in a second book, which would deal with various aspects of judicial and law enforcement policy with respect to child abuse in the United States, and especially the influence that the U.S.A. has had on policy development and implementation in the Netherlands. This book has just been published.212 The present article is based on parts of the latter book.
For the present study we were grateful to receive permission from Professor Ernst Braches, former chief librarian of the University of Amsterdam, to use his unpublished research for which he had counted child pornography magazines issued since the 1950s. Through personal contacts via the Dutch Association for Sexual Reform (NVSH) we were able to get access to some private collections of child pornography magazines, which we used for our analysis, and to watch a number of films. Between 1988 and 1991 we checked sex shops in the Netherlands and Germany for child pornography. In addition, we held a number of interviews with persons who were in possession of first-hand knowledge of child pornography production and dissemination. Among these were publishers, friends and defense attorneys of persons accused of producing and disseminating child pornography, persons who were photographed as children and the Central Police Investigations Information Service, drawing the attention of the latter to the recent reemergence of magazines in Germany.
In addition, one of us (B.R.) regularly appears as expert witness in the Dutch courts in cases where children are witnesses or witness/victims. We are in the process of building up an archive of cases; some show actual cases of child abuse, others show cases of mistaken diagnosis. Borrowing from the tape analysis methods developed by Ralph Underwager and Hollida Wakefield, we have been able to show how children have sometimes been manipulated to say things that may not be true. Excerpts from two of the court reports are also included in our book.
In cooperation with Professor Jan Wind, chairman of the Foundation Ouders voor kinderen (Parents for Children, a private group that deals with false accusations of child abuse; comparable to VOCAL in the U.S.A. and PAIN in the United Kingdom) we are presently making an evaluation of the enforcement of laws against child abuse in the Netherlands, and in particular of the performance of the police and the Justice Department. The results will be published in 1993. One of us (J.S.) is a member of the Labour Party Commission on Government and Sexual Integrity, which is preparing proposals for a revision of the Dutch morality laws and will be editing the final report of this committee to be published by the end of 1992.
Appendix A: The Number of Magazines
Appendix B: The Number of Children
Appendix C: Content Analysis
Appendix D: Child Pornography Ring
Appendix E: Interviews with Three Boys