How do Canadian/U.S. child pornography laws compare?

How do Canadian/U.S. child pornography laws compare?

Canadians accused of creating or distributing child pornography can be extradited to the United States to face trial where the penalties regarding that crime are considered to be among the harshest in the world. According to Quick Facts published by the United States Sentencing Commission:

• 99.1 per cent of child pornography offenders were sentenced to prison with the average jail term being 104 months.
• The average sentence for offenders convicted of trafficking in child pornography was 136 months. Of those,13.4 per cent had a prior sexual abuse or child pornography conviction; their average sentence was 269 months.
• The average term of custody for offenders convicted of receiving child pornography was 105 months. Of those 2.9 per cent had a prior sexual abuse or child pornography conviction; their average sentence was 241 months.
• The average jail term for offenders convicted of possessing child pornography was 70 months. Of those, 19 per cent had a prior sexual abuse or child pornography conviction; their average sentence was 138 months.

By comparison in Canada, the production or distribution of child pornography carries a maximum prison sentence of 14 years, while the maximum sentence for possessing or accessing child pornography is 10 years.

The RCMP states that “online child sexual exploitation crimes have no borders and making child sexual exploitation materials available online re-victimizes children again and again. Whether crimes against children are recent or historical, the RCMP and its partners around the globe are committed to detecting, identifying and safeguarding vulnerable children from child sexual offenders.”

Under s.7 (4.1) of the Criminal Code, a Canadian or a permanent resident of Canada may be charged in this country for a sexual offence against a child committed in a foreign country.

What are U.S. child pornography laws?

Child pornography is illegal under federal and state laws in the United States and is punishable by up to life imprisonment and fines of up to US$250,000. While some types of pornography receive First Amendment protection, child pornography does not.

Federal sentencing guidelines on child pornography are harshest on those who produce and distribute the material, with lesser sentences given to those who purchase or view it. The age of the child involved is also a factor. Federal laws almost always apply when the Internet is used to commit a child pornography violation.

What constitutes child porn offences?

There is no one standard definition for online child sexual exploitation and abuse. It ranges from sexual solicitation of a child – with or without a response from the child – to sexual grooming (trust-building prior to abuse), to sexual interaction online (cybersex) or offline (meeting in person), to accessing, producing or sharing images related to the abuse of children. The crime can be committed by adults, youths, strangers, family members or acquaintances.

Online sexual offences against children include sexual interference, invitation to sexual touching, sexual exploitation, parent or guardian procuring sexual activity, luring a child and bestiality (in the presence of a child). Other sexual offences that could involve children include the non-consensual distribution of intimate images, sexual assault, sexual exploitation of a person with a disability, bestiality, voyeurism and incest.

It is commonly accepted that only a fraction of sexual offences come to the attention of police and, subsequently, the courts.

According to the Statistics Canada report, Online child sexual exploitation and abuse in Canada:

• Between 2014 and 2020, police reported 10,739 incidents of online sexual offences against children (where the victim had been identified by police) and 29,028 incidents of online child pornography (where the victim had not been identified).
• The overall rate of police-reported incidents of online child sexual exploitation and abuse has been on an upward trend, increasing from 50 incidents per 100,000 population in 2014, when cybercrime data were first collected nationally, to 131 per 100,000 in 2020.
• Luring a child accounted for the large majority (77 per cent) of online sexual offences against children. In addition, 11 per cent were non-consensual distribution of intimate images, eight per cent were invitation to sexual touching and five per cent were other online sexual offences against children.
• More than two-thirds of child pornography incidents involved making or distributing child pornography and about one-third were possessing or accessing child pornography.
• Seven in 10 victims identified in online sexual offences against children were girls aged 12 to 17 and 13 per cent were girls under age 12. Boys aged 12 to 17 accounted for 11 per cent of victims and the remaining three per cent were boys under age 12.
• About two out of three victims of online child sexual offences were victimized by a stranger or a casual acquaintance and nearly one in four were victimized by a friend, a family member or an intimate partner of a parent.
• The vast majority of people accused of online child sexual exploitation and abuse (including sexual violations against children and child pornography) were men and boys – and they were generally much older than victims. The median age of males accused of online sexual offences against children was 24 years, and males accused of child pornography had a median age of 29 years. Non-consensual distribution of intimate images online involved victims and accused persons with a median age of 15.
• Charges related to child sexual offences likely committed online were more likely to result in a guilty decision than charges involving other (likely offline) sexual violations against children: More than one in three court charges of child sexual offences likely committed online resulted in the accused being found guilty, compared with 29 per cent of offline charges. Charges related to the non-consensual distribution of intimate images were most likely to result in a guilty decision (45 per cent).

Is there international co-operation on child porn?

According to the Canadian Department of Justice report Rethinking the Line: The Canadian U.S. Border, “the cross-border nature of the Internet will require international cooperation and coordination among jurisdictions and agencies involved in the investigation of child pornography and luring of children on the Internet.”

It suggested that Criminal Code language dealing with child exploitation does not “adequately accommodate the borderless nature of the Internet. This has had implications for investigations involving electronic child pornography stored by Canadians in other countries, and child pornography that has been stored in Canada by individuals from outside the country.”

The report calls for better “cooperation and coordination among jurisdictions and agencies involved in the investigation of child pornography and luring of children on the Internet … laws not only need to be updated to include the new technologies, they also need to be written in such a way as to accommodate the evolving nature of technology.”

How can I help?

The penalties related to child pornography are significant in Canada, even if they are not as severe as in the United States. No matter the circumstance, I will carefully examine the Crown’s evidence and advise you on the defence against the charge. The first consultation, in French or English, is free, with a flat fee for each of the next phases of your case. Contact me so we can start building your case.