Virtual child pornography – policing fantasy? A critical evaluation of the justifications for the criminalisation of virtual child pornography (VCP)

There is little doubt that the internet and related technologies have had a considerable impact on the accessibility and proliferation of images and videos of child sexual abuse, often referred to as child pornography. Until 2010 computer generated fantasy images which depict imaginary children (hereafter known as virtual child pornography or VCP) were not illegal to possess. However, after a period of consultation in which the government acknowledged there was no research to suggest actual harm caused as a result of such images, only potential harm, these fantasy images became subject to legal sanction pursuant to Ss.62 to 68 Coroners and Justice Act 2009. The aim of this thesis is to critically evaluate the law pertaining to child pornography and virtual child pornography specifically in order to highlight the areas of the current law which are in need of clarification or reform. This has been achieved through the use of doctrinal analysis, a legal methodology which enables lawyers to critically evaluate the law as drafted through reference to decided case law. In addition, the thesis critically evaluates whether the arguments put forward by the government in the Consultation prior to the enactment of the Coroners and Justice Act 2009 can be justified. The critical evaluation of the justifications for criminalisation consider the philosophical and moral arguments for criminalisation as well as the views expressed by those who responded to the government consultation, data obtained using a Freedom of Information Act request and also through data gathered as a result of conducting a number of semi structured interviews with experts in the field. The thesis also seeks to consider whether in future VCP or other related technologies could be used in the risk management of certain types of image offenders or for those who acknowledge they have a sexual interest in children but who wish to remain law abiding. The thesis argues that it may be time to acknowledge that criminalising behaviour, such as the possession of VCP, on the basis of perceived harm, as opposed to actual harm is simply not acceptable. It is inevitable that technology will continue to develop and that the legislature will find it difficult to keep up with such advances by means of legislation so it may be that the time has come to investigate whether technology can assist in the risk management of those with a sexual interest in children instead of assuming that the most appropriate approach is to criminalise the possession of images which do not cause any demonstrable harm to a child.