IS COMPUTER-GENERATED CHILD PORNOGRAPHY A VICTIMLESS CRIME ?
A worldwide dimension of the this crime
With the growth of computer technology, society is being asked to deal with issues that are profoundly changing the ways that we live and think. Technology has been growing so rapidly that even the law has found it difficult to keep up. Computer technology is challenging our current legal definitions including the definition of child pornography. Traditionally, child pornography was limited to magazines and videotape. Once a very regulated area, child pornography is now capable of entering the home of any family with a computer and an Internet server. Child pornography is a multi-billion dollar international sex trade industry. INTERPOL has cited
What is child pornography?
Legal definitions of child pornography generally refer to any pornography involving a minor, varying by jurisdiction and with regards to laws against child pornography. For research purposes, child pornography often refers to any recording (photograph, video, or audio) of sexual activity involving a prepubescent child. Child pornography refers to material depicting children being in a state of undress, engaged in erotic poses or sexual activity. Children are sexually abused in the production of child pornography, particularly when sexual acts are photographed and the effects of the abuse are compounded by the wide distribution of the photographs of the abuse. Virtual child pornography An image which appears to be a photograph of a child, which is not a photograph, is referred to as a "pseudo-photograph". It is also illegal to take, make, distribute, show or possess an indecent.Child pornography is defined as a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value. Sexually explicit conduct includes various forms of sexual activity such as intercourse, bestiality, masturbation, sadistic or masochistic abuse, and lascivious exhibition of the genitals.3 It is illegal to possess, distribute, or manufacture these images. These illegal images can be presented in various forms including print media; videotape; film; compact disc, read-only memory (CD-ROM); or digital versatile technology (DVD) and can be transmitted through computer bulletin-board systems (BBS), USENET Newsgroups, Internet Relay Chat, web-based groups, peer-to-peer technology, and an array of constantly changing world wide web sites. What Are the Effects of Child Pornography? It is important to realize these images can have a devastating and lasting effect on children. In addition to any physical injuries they can suffer in the course of their molestation, such as genital bruising, lacerations, or exposure to sexually transmitted diseases, child victims can also experience depression, withdrawal, anger, and other psychological disorders. Such effects may continue into adulthood. For instance women abused as children have statistically significant higher rates of nightmares, back pain, headaches, pelvic pain, eating binges, and other similar symptoms. Child victims also frequently experience feelings of guilt and responsibility for the abuse and betrayal, a sense of powerlessness, and feelings of worthlessness and low self-esteem. These feelings are often expressed through increased fearfulness and changes in sleep patterns including re-occurring memories, flashbacks, dreams, and nightmares associated with posttraumatic stress. The Child Pornography Prevention Act of 1996 of United States defines child pornography as: “Any visual depiction, including any photography, film, video, picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-- (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that such an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct... 18 U.S.C. 2256 (8).” The Child Pornography Prevention Act of 1996 provides an affirmative defense for violations of the act if: (1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; (2) each such person was an adult at the time the material was produced; and (3) the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct. 18 U.S.C. 2252A (c).
Is Computer-Generated Child Pornography A Victimless Crime?
Individual Level : At the individual level, computer-generated child pornography is a victimless crime. No children are involved or made to perform demeaning and harmful acts in the creation of computer-generated child pornography. Advancements in computer technology and creativity has allowed individuals to create images that are gratifying to them. They are not hurting any individual person by creating these images. Adult pornography enjoys Constitutional protection because consenting adults are the participants. With computer-generated child pornography, no child is involved and therefore no child participates. Adults are creating the images that other adults will see and no child is hurt.
Societal Level : At the societal level, any form of child pornography, whether computer-generated or not, victimizes children. Computer-generated photographs of children still look like children performing sexually demeaning acts. Although it is not a child in the photograph, the result to society is still the same. Children are viewed as objects for pedophiles to feed their sickness.
FANTASY DEFENSE IN CHILD PORNOGRAPHY
BigDaddy371 is chatting it up with Pikachew444. BigDaddy's profile identifies him as a 42-year-old male. Pikachew's profile says he's a 13-year-old boy. They meet in a BoyToys chat room, add each other's screen names to their respective buddy lists, and then instant message back and forth every time they're both online. BigDaddy repeatedly asks Pikachew to confirm that he is in fact a 13-year-old boy, and the gist of their conversations appears to be about the interests of a typical teenage boy. They discuss basketball, videogames, and television. But underlying most of the dialog is sexual innuendo, references, and propositions, and BigDaddy emails Pikachew digital photographs of children engaged in sexual activities.
What crimes has BigDaddy committed in this hypothetical situation? The answer to that question is more complicated than ever before. May be none. We've recently entered into a digital world where the limits of imagination have new boundaries, and whether an actual child is involved, to some extent, is irrelevant to the law. More important has become BigDaddy's state of mind. Under existing precedent, BigDaddy might argue he never actually believed he was communicating with a child (even if in fact he was) and instead was under the impression that he was communicating with an adult posing as a child. He argues it was all a fantasy being shared by two adults and is, therefore, completely legal.
The fantasy defense becomes even murkier in light of online entrapment issues. Law enforcement officers must ensure that the person is not role-playing and must not encourage the person to engage in an act that he or she was not predisposed to commit in the first place. What about the pictures of children engaged in sexual activities sent by BigDaddy to Pikachew? In court, BigDaddy might argue that the pictures were fabricated -- that they were digitally created child pornography. It's virtual child porn, he would argue, also completely legal under a recent federal appeals court decision. With both fantasy role-playing and the virtual child pornography, whether Pikachew444 is a young boy is not really the issue -- at least, not given the way case law is developing today. Individually, each act may be considered legal, but taken together the acts might tell a different story. In this area of law, jurists and jurors are not necessarily instructed to examine the totality of circumstances. But the fantasy defense is having only limited success. In the 1999 case against former Infoseek executive Patrick Naughton, a hung jury could not come to a consensus on whether Naughton was role-playing with an agent posing as a 13-year-old girl named KrisLA. Just short of retrying the case, Naughton abandoned the defense and pled guilty. In October 2000, a
The legal position in
In India Adult pornography enjoys no Constitutional protection even if the consenting adults are the participants.
For legal purposes who is a minor is to be looked into. The legal age of simple majority is eighteen (18) years for male and female persons. The legal age at which a person is currently competent to consent to sexual intercourse is currently eighteen (18) years. The legal age of consent for marriage is eighteen (18) years for male persons and twenty-one (21) years for female persons.
The act of child or adult pornography is attracted the ingredients of the offence under Sections 292, 292 A, 293 and 294 of Indian Penal Code, 1960. With the adding of the words “made or produced by electronic, mechanical, or other means, of sexually explicit conduct, any visual depiction, including any photography, film, video, picture, or computer-generated image or picture, where the production of such visual depiction involves the use of a minor or major engaging in sexually explicit conduct; such visual depiction is, or appears to be, of a minor or major engaging in sexually explicit conduct; such visual depiction has been created, adapted, or modified to appear that such an identifiable minor is engaging in sexually explicit conduct; or such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor or major engaging in sexually explicit conduct”.[Relied on The Child Pornography Prevention Act of 1996 of United States- 18 U.S.C. 2256 (8)]. .
The general law of obscenity in
S. 292. Sale, etc. of obscene books, etc .-- (1) For the purpose of subsection (2), a book, pamphlet, writing, drawing, painting, representation, figure , or any other object including an electronic material, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
[(2) Whoever –
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, for purposes of sale, hire, distribution, public exhibition or circulation makes , produces or has in his possession obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c ) made or produced by electronic, mechanical, or other means, of sexually explicit conduct, any visual depiction, including any photography, film, video, picture, or computer-generated image or picture, where the production of such visual depiction involves the use of a minor or major engaging in sexually explicit conduct; such visual depiction is, or appears to be, of a minor or major engaging in sexually explicit conduct; such visual depiction has been created, adapted, or modified to appear that such an identifiable minor is engaging in sexually explicit conduct; or such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor or major engaging in sexually explicit conduct.*
(d) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, or in any manner put into circulation, or
(e) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(f) Offers or attempts to do any act which is an offence under this section,
shall be punishable [on the first conviction with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees, and in the event of second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and also with fine which may extend to five thousand rupees.
[Exception.—this section does not extend to –
(a) any book, pamphlet, paper, writing, drawing, painting, representation, electronic material or figure—
( i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, drawing, painting, representation, electronic material or figure in the interest of science, literature, are or literature, art or learning or other objects of general concern, or
(ii) which is kept or used bonafide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise represented on or in—
(i) any ancient monumental within the meaning of the ancient monument and Archaeological Sites and Remains Act, 1958 (24 of 1958) or
(ii) any temple or any car used for the conveyance of idols, or kept or used for any religious purpose.]
Section 293 of the Indian Penal Code
'Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty (20) years any such obscene object as is referred to in the last preceding section, or offers or attempts to do so, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.'
Section 292 IPC was enacted by the Obscene Publications Act to give effect to Article I of the International Convention for suppression of or traffic in obscene publications to which
On a bare reading of Sub-section (1) of Section 292 it is obvious that a book etc. shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to be obscene. It is only once the impugned matter is found to be obscene that the question of whether the impugned matter falls within any of the exceptions contained in the section would arise.
The Indian Penal Code, 1860 on obscenity has grown out of the English Law and while interpreting the meaning of "obscenity" the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra uniformly adopted the test laid down by the English Court in Hicklins Case Supra wherein it was held that the word "obscene" in the section is not limited to writings, pictures etc. intended to arouse sexual desire. At the same time, the mere treating with sex and nudity in art and literature is not per se evidence of obscenity. It was emphasized that the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. It was further observed that there exists a distinction between "obscenity" and "pornography", while later consists of pictures, writings etc. which are intended to arouse sexual feelings whereas the former consists of writings etc. which though are not intended to arouse sexual feelings but definitely has that tendency.
In Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra, which case relates to articles and pictures in the magazine being alleged to be obscene and calculated to corrupt and deprave the minds of the reader, the courts reiterated the ratio as was laid down in Ranjit Udeshi's case (supra) and held that the concept of obscenity would differ from country to country depending on the contemporary standards of the society. It was held that with the standards of contemporary society in India fast changing, the adults and adolescents have available to them a large number of pieces of literature which have a content of sex, love and romance and if a reference to sex by itself is considered obscene, no books could be sold except those which are purely religious.
The Supreme Court of India in the K.A. Abbas v. Union of India has called the test laid down in Mishkin's case (supra) as "selective-audience obscenity test" .
In Samaresh Bose v. Amal Mitra the courts while distinguishing between vulgarity and obscenity held that "vulgarity" may arouse a feeling of revulsion, disgust and even boredom but unlike "pornography" or "obscenity" do not have the tendency to corrupt or deprave the minds of a person. In addition to the above, the court observed that for the purposes of judging obscenity, firstly the judge must place himself in the position of the author in order to appreciate what the author really wishes to convey, and thereafter he must place himself in the position of the reader of every age group in whose hands the book is likely to fall and then arrive at a dispassionate conclusion.
In Sada Nand and Ors. v. State (Delhi Administration) Â 1986 (2) ILR(Del) 81 laid down the test to the affect that the pictures of a nude/semi-nude woman cannot per se be called obscene unless the same are suggestive of deprave mind and are designed to excite sexual passion in the persons who are likely to look at them or see them. This will depend on the particular posture and the background in which a nude semi-nude woman is shown. ………………………………… The women in nude had been just made to lie on a grassy plot or sit on some stool etc. and pose for a photograph in the nude. So they may well be said to be vulgar and indecent but all the same it may be difficult to term them obscene within the meaning of Section 292 IPC.
The findings of the court in Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors., which may be relevant for the present matter, have been reproduced below:
First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema-goer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that Tribunal referred to was not at Phoolan Devi's nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film 'Schindler's List' was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. 'Bandit Queen' tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: rage and vendetta against the society that had heaped indignities upon her.
In the case of Ajay Goswami v. Union of India the Supreme Court, while recognizing the right of adult entertainment, reviewed the position of law on obscenity and summarized the various tests laid down of obscenity. Recently, in Vinay Mohan v. Delhi Administration  2008 (2) AD(Del) 315, Pradeep Nandrajog J. while dismissing the petition against framing of charge held that it is a recognized principle of law that concept of obscenity is molded to a great extent by the social outlook of people and hence in relation to nude/semi- nude pictures of a woman it would depend on a particular posture, pose, the surrounding circumstances and background in which woman is shown.
Krishna Iyer, J., speaking for the Court in Raj Kapoor v. State, dealing with a pro bono publico prosecution against the producer, actors and others connected with a film called "Satyam, Shivam, Sundaram" on the ground of prurience, moral depravity and shocking erosion of public decency held that the censor certificate is a relevant material, important in its impact, though not infallible in its verdict and observed as under: ...Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. ...The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konarks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.
In T. Kannan v. Liberty Creations Ltd. (2007) the
The Information and Technology Act, 1999
Section 67 of this Act prohibits the publishing of information, which is obscene in electronic form.
Section 67.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to lend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which extend to ten years and also with fine which may extend to two lakhs rupees.
Thus Section 67 is the first statutory provisions dealing with obscenity on the Internet. It must be noted that the both under the Indian Penal Code, 1860 and the Information Technology Act, 2000 the test to determine obscenity is similar. Therefore, it is necessary to understand the broad parameters of the law laid down by the courts in
Other sections of law applicable to child abuse is as follows.
Section 376(1) of the Indian Penal Code
‘Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve (12) years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both; Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever- (a) – (e) (…)(f) commits rape on a woman when she is under twelve (12) years of age; or (g) (…), -shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine; Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years. Section 90 of the Indian Penal Code
A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequent of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequent of that to which he gives his consent; or unless the contrary appears from the context, if the consent is given by a person who is under twelve (12) years of age.’ Misconception of fact – Consent given under a misconception is invalid if the person to whom the consent is given is aware of its existence. A consent given on the misrepresentation of fact is one given under a misconception of fact within the meaning of this section. An honest misconception by both the parties, however, does not invalidate the consent.
Section 377 of the Indian Penal Code ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’ Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. Sex with a female under fifteen (15) years of age is considered rape, even if wedded. Section 376B of the Indian Penal Code ‘Whoever, being a public servant, takes advantage of his official position and induces or seduces, any women, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.’ Section 376C of the Indian Penal Code ‘Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.’
Section 376D of the Indian Penal Code ‘Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any women in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.’
Section 9 of The Immoral Traffic Prevention Act, 1986 ‘Any person who, having the custody, charge or care of, or position of authority over, any person causes or aids or abets the seduction for prostitution of that person shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine; Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years.’ There is no specific provision in the Indian law as regards to sexual abuse of children by parents or teachers. Such acts are covered by the general provisions relating to sexual abuse of children by their custodian, in whatever capacity they may be. Export and Import of girls for prostitution: Sections 366A and 366B are intended to punish the export and import of girls for prostitution. Section 366A deals with Procuration of minor girls from one part of
Section 5, Paragraph 1 of The Immoral Traffic Prevention Act, 1986 ( IT(P) Act ) 'Procuring, inducing or taking persons for the purpose of prostitution:( l ) Any person who-(a) procures or attempts to procure a person whether with or without his consent, for the purpose of prostitution; or (b) induces a person to go from one place, with the intent that he may, for the purpose of prostitution, become the inmate of, or frequent a brothel; or (c) takes or attempts to take a person or cause a person to be taken away from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a person to carry on prostitution, -shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years; Provided that if the person in respect of whom an offence committed under this subsection: (i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.' ‘Detaining a person in premises where prostitution is carried out’, Section 6 IT(P) Act, 1986: '(1) Any person who detains any other person, with or without his consent, (a) in any brothel; or (b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, -shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine; Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years. (2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under subsection (1). (2A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually assaulted, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purpose of prostitution or, as the case may tee, has been sexually exploited for commercial purposes. (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there - (a) withholds from her any jewellery, wearing apparel, money or other property belonging to her; or (b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property tent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl, or to have been pledged by such woman or girl for the recovery of any money alleged to be payable by such woman or girl.'
67. Publishing in electronic form of information which is obscene in electronic form: Save as provided in this Act under Section 79 which exempts intermediaries from liability in certain cases, whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five two years and with fine which may extend to one five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten five years and also with fine which may extend to ten lakh rupees. [67.2] Whoever intentionally and knowingly publishes or transmits through electronic form any material which relates to child pornography, shall be punished with imprisonment for a term not less than three years and with a fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. Explanation: - For the purposes of this section “child pornography” means material that features a child engaged in sexually explicit conduct.
Exception – This sub-section (1) does not extent to – (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form – (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bon fide for religious purposes;
As former CBI Director R.K. Raghavan said “The culprit who did it does not understand the worldwide dimension of child pornography which has become epidemic with the help of the net. In fact, a separate legislation is immediately needed to deal with the malaise.” With a suggestion I may conclude let us stop using the words ‘child pornography” by using comfortably ‘child abuse images’ to give a worldwide dimension to that crime.
Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights) Special Public Prosecutor, Legal Adviser (Rtd) Vigilance & ACB, Kerala
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