Parity in Criminality: A Case Against Distinction in Criminalising the Consumption of CSEAM and NCII
Introduction
Consider you come across two videos, one of which shows a fully clothed sixteen-year-old boy sexually touching the chest of a fully clothed girl of the same age, with the faces of each being blurred (and any other identification mark being absent for both). While the other displays the helplessness, screams, and forceful stripping of a twenty-year-old girl, who is being horrendously gang-raped, with her face clearly visible, and the rape is being filmed in front of her eyes for the world to watch. Further, assume that you know that the recording as well as the production of the latter is non-consensual. In your opinion, the consumption of which of the two videos is likely to cause greater harm? The emphatic view of the law seems to be that consumption of any material depicting minors engaging in any sexual act is more harmful than that of any other material depicting sexual acts committed against an adult victim who did not, in the circumstances where she was being abused, expect privacy.
To this effect, this piece seeks to dwell into the unique ‘criminal’ status conferred by the law to the act of consumption of any sexual material involving children, referred to as ‘Child Sexual Exploitation and Abuse Material’ (CSEAM) [para 227], as read under Section 67B of the Information Technology Act by the Supreme Court [para 151]. The piece proceeds by drawing an analogy between the consumption of CSEAM and that of the most abusive form of ‘Non-Consensual Intimate Imagery’ (NCII), which is defined later in the piece.
The ‘harm principle’, which would be explained later, is amongst the most prominent philosophical frameworks governing criminalisation in modern times, and the popular liberal proponents [s. 5.1] of pornography base their argument in favour of consumption of the same, inter alia, on the premise that the same does not inflict harm to others. Thus, this piece grounds the argument for bringing in parity in criminalisation of consumption of CSEAM and that of the most abusive form of NCII on the grounds that both cause ‘harm to others’, a ground considered sufficient by all popular harm principles to justify criminalisation [s. 4], and that the former is not necessarily more harmful than the latter.
What Are The Two Sexually Abusive Materials Being Compared?
One element in this analogy comprises the broad category of ‘CSEAM’, depicting children engaging in sexual acts, thus including within its ambit the example of the video of the two teenagers, used above. Whereas, the other element in the analogy is the form of NCII consisting exclusively of such material that depicts a non-consensual act involving only adults in a way that the victim is identifiable, recorded with the knowledge but without the consent of the victim of the non-consensual act, and published (or transmitted) as well without the consent of the victim. Thus, the example used above, of the video displaying gang rape, would fit within this category.
The reason behind calling this form of NCII its most abusive form is that it does not merely satisfy the lowest threshold required for falling within the ambit of NCII. While the lowest threshold is that of non-consensual dissemination of the imagery of a sexual act, this form of NCII additionally takes both of the two possible steps lying ahead of it. It does so by covering within its ambit only such recordings of sexual acts that have been made non-consensually, and only such sexual acts that are non-consensual in their very nature.
Moreover, the unique legal vulnerability of children, of being unable to consent to any sexual act, does not effectively serve as a ground distinguishing between the two materials, due to two reasons running across both of them. Firstly, both of them reflect the absence of legally permissible consent. Secondly, given that the form of NCII this piece concerns itself with exclusively consists of materials that involve a non-consensual act, that form of NCII in toto as well consists only of vulnerable victims, who were unable to prevent the perpetration of the sexual offense against them. Therefore, both materials reflect the absence of legally permissible consent, as well as the vulnerability of the victims involved.
Further, the reason behind employing the framework of the harm principle is also based on the understanding that both the concerned materials involve vulnerable victims who, as a class, either lack the capacity to consent or did not consent, and yet were subjected to sexual abuse. Given this understanding, the distinction carved out by law amongst the two materials cannot be grounded exclusively on the ‘vulnerable’ status of a class of victims, since both the classes involved are vulnerable. Therefore, this distinction shall be grounded on a difference in the degree of harm, or of vulnerability. It shall be noted that the degree of harm inflicted reflects, inter alia, the vulnerability of the victim, and thus encompasses the dimension of vulnerability within it [pages 347 and 348]. Therefore, the harm principle has been used to adequately dwell upon the grounds distinguishing the two concerned materials.
Importantly, the consumption of this form of NCII is not covered by the definition of Voyeurism, as contained in Section 77 of the BNS. The section may exclude from its ambit acts in which the victim did not engage, but was forced. Interestingly, this means that while the consumption of sexually abusive material displaying an act performed willingly by the victim is criminalised, that of a material displaying an act perpetrated against the victim without her consent may not be criminalised. More interestingly, the section covers within its ambit only watching, capturing the image of, and disseminating the image of a woman engaging in ‘private acts’, at a place that provides her a reasonable expectation of privacy in the circumstances. Thus, when the act is recorded in a way that the victim becomes aware of it being recorded, and the victim does not have a reasonable expectation of the recording not being disseminated, consumption thereof is certainly not criminalised on grounds of absence of a reasonable expectation of privacy in the circumstances!
The Harm Inflicted
The harm principle originated from On Liberty, authored by John Stuart Mill, a stalwart of utilitarianism. Some of the most celebrated thinkers have significantly engaged with this principle. This principle fundamentally states that for an act to be criminalised, the same must inflict some harm, a point on which the various harm ‘principles’ do not disagree. Here, it shall be kept in mind that a distinction can be made between the acts of consuming the two kinds of abusive materials only on grounds of an inherent distinction in the nature of the two materials, since the acts of consuming the materials are not per se distinct from each other. Accordingly, it follows that CSEAM, which has been treated as a class, to criminalise the consumption of any of its forms, shall be inherently more harmful as compared to any form of NCII involving only adults. As stated earlier, distinct views have been expressed in construing ‘the’ harm principle – with scholars like Mill explaining it as a principle concerning acts causing ‘harm to others’ [page 256], while others like Devlin [Section 1] expanding it to include ‘immoral acts’.
Importantly, the ‘harm to others’ condition – the satisfaction of which is sufficient to inflict harm as per all the popularly recognised harm principles – would be satisfied by consumption of either of the two materials, since such consumption is bound to inflict indirect harm – explained later in the piece. But, some versions of the harm principle also address the proportionality condition [page 283], to determine whether an act shall be lawful or unlawful. Therefore, adopting such a version of the harm principle, the law may consider the comparative degrees of harm inflicted by criminalising the consumption of abusive pornography, and that inflicted by not criminalising the same. Yet, the same as well cannot be a ground for drawing out a distinction between the two categories, as in the case of both – every consumer inflicts some harm (at least indirect harm). Therefore, the only situation justifying criminalisation of consumption of all forms of CSEAM, while simultaneously justifying lawfulness of consumption of the concerned form of NCII, is one wherein the harm inflicted by consumption of each material belonging to the former class is greater than that inflicted by any material belonging to the latter class.
The nature of harm that may be inflicted by consumption of the concerned form of NCII, as well as CSEAM, can essentially be categorised into two categories: direct harm and indirect harm. Fundamentally, the distinction between the two [pages 161-163] is that while direct harm is inflicted on the participants of the concerned sexually abusive act, indirect harm produces broader effects, affecting a larger segment of the population. While direct harm that may be inflicted on participants is understood by the conceptions of dignity and privacy, indirect harm is explained by the market deterrence theory and the tendency theory, which are explained henceforth.
The Direct Harm
Consumption of the concerned form of NCII as well as that of CSEAM, on grounds of being similar in nature on several counts, may cause direct harm essentially by the violation of dignity and privacy [page 301] of those whose sexual abuse is depicted by the material. Direct forms of harm can further be sub-classified into intrinsic harm and instrumental harm. Intrinsic harm [page 2092] is caused by the act of consumption of these abusive materials by any individual, as consumption by anyone results in the breach of privacy and violation of the dignity of the victims. Whereas instrumental harm is caused when the abusive material reaches the social circle of the victim [page 301] – resulting in the breach of privacy and violation of dignity not only among countless unfamiliar internet users, but more significantly, among the victim’s own acquaintances [page 4].
These possible direct consequences have the potential to cause substantial harm [page 347, 350-354] to the victims of the abuse in varying ways. They may result in a perpetual fear being instilled within the minds of the victims, that people, both acquainted as well as unacquainted, have seen their abuse, and may be able to identify them [page 350]. Moreover, such published recordings of their abuse have the potential to adversely affect their educational, employment, and other opportunities. The same may also possibly lead to adverse psychological consequences, and further victimisation in various ways – such as loss of self-esteem, and humiliation [page 65]. The penultimate result of these adverse effects may be a not-so-uncommon outcome – an attempt by the victims to commit suicide [page 5], to escape their devastated and frustrated lives.
To establish that the minimum direct harm inflicted by CSEAM is not more than the maximum direct harm (or, indeed, even the minimum direct harm) of the specific category of NCII this piece deals with, it is relevant to refer back to the example of the video of the teenagers. While any of the two teenagers displayed in the video may suffer from harmful effects – such as adverse psychological consequences, for instance, if they regret their decision of indulging in the act, recording it, or publishing (or transmitting) it. But, given that they are unidentifiable in the material, other individuals may not be able to cause any harm to either of the teenagers. Whereas, in the case of the concerned category of NCII with which this piece deals, potential harms would include, in addition to these harms, the harms that are caused by other individuals – such as unemployment and social stigma. Therefore, while imposing a blanket criminal sanction on consumption of all forms of CSEAM, while keeping the act of consuming any form of NCII outside the scope of any criminal sanction, the law necessarily criminalises consumption of some less harmful material, while not criminalising that of some more harmful material. Moreover, some of such more harmful material can be categorised as a class, based on the criteria employed above, while categorising the specific form of NCII this piece pertains. Thus, in addition to materials that are individually more harmful than some forms of CSEAM, the law also leaves behind an entire ‘class’ of more harmful materials.
The Indirect Harm
One of the possible indirect harms that may be inflicted by the consumption of the concerned category of NCII and CSEAM is the rise in the tendency amongst consumers to perpetuate non-consensual sexual abuse on adults and children, respectively. This is the fundamental argument of the ‘tendency theory’[pages 298 and 299]. The other popularly recognised possible indirect harm that may be inflicted is explained by the ‘market deterrence theory’[page 296], according to which, consumption of sexually abusive content leads to the production of more sexually abusive material.
As far as the relevance of the tendency theory is concerned, since all of the possible consequences are already crimes in India, it seems unreasonable for the state to proceed to prevent the tendency to commit child sexual abuse, while not being concerned about the prevention of other kinds of sexual abuse. Whereas, if the objective of the state is to prevent the tendency to commit any sexual offence, in consequence of consuming sexually abusive material – and not only sexual offences involving children – what matters is only the possibility and probability of such consumption giving rise to such a tendency – and not any differences in the harmfulness of the two tendencies. The reason behind the same is that when the state intends to prevent the tendency to commit sexual offences – it cannot draw out an intelligible differentia, as mandated by Anwar Ali Sarkar, justifying the use of criminal sanction for prevention of the tendency to commit only one kind of sexual offence on grounds of a distinction in the harmfulness of the possible consequences of such tendencies. Irrespective of the existence of such a distinction in harmfulness, all such consequences nonetheless remain an offense. Since no empirical evidence exists to establish that amongst CSEAM and the concerned form of NCII, only the consumption of CSEAM generates the tendency to cause sexual abuse, or that it has any greater probability of generating the same, a distinction between the two cannot be made on grounds of the tendency theory. Some research [page 26] establishes that such a tendency is indeed generated by the consumption of abusive forms of pornography. But, the same cannot be used to draw out a distinction between the effects produced by consumption of the concerned form of NCII and consumption of CSEAM, since such research does not establish that the consumption of one of them is more likely than the other to produce such a tendency.
While the relevance of the market deterrence theory has been looked at from a commercial perspective by some other pieces [page 296] of academic literature, this piece would broaden the horizon of the same by construing markets as entities that are not necessarily commercial in nature. Accordingly, in a market for NCII – the good is the abusive material, the seller is one whose intent behind disseminating the material is to cause harm to the victim who has been depicted in the material, and the consumer is one who consumes the abusive material. This broader understanding of the ‘market deterrence theory’ leads to rejection of arguments against the theory grounded in a narrow understanding of the theory. As far as this theory is concerned, the rationale of the consequences being crimes once again comes into the picture, since again, all the possible consequences are crimes. In such a situation, if the objective of the state is to deter the commission of more sexual abuse as a consequence of the consumption of sexually abusive material, by use of criminal sanction, again what matters is only the probability and possibility of such consumption leading to the production of more abusive material – and not any distinction in the harmfulness of such abusive materials. Since no empirical evidence establishes that amongst the two forms of abusive material, either such a possibility exists only in the case of CSEAM, or a higher probability exists in its case, a distinction cannot be drawn between the two on grounds of the market deterrence theory as well.
Conclusion
Popular theoretical justifications for freedom to consume pornographic material are grounded in the premise that the same does not cause any harm to others. Further, both the concerned forms of materials do not differ in terms of either the ‘vulnerable’ status of the victim or the absence of legally permissible consent in the sexual act being displayed. Thus, whether a unique ‘criminal’ status ascribed to the act of consumption of CSEAM is justified shall be determined based on the harm it inflicts. Further, the harm inflicted by every act of consumption of CSEAM shall be greater than that inflicted by any act of consumption of the concerned form of NCII. But, as illustrated, the minimum degree of direct harm that consumption of CSEAM can inflict is lower than the maximum degree of harm (and indeed even the minimum degree of harm) that consumption of the concerned class within NCII is bound to inflict. Thus, a distinction favouring the criminalisation of the former, while keeping the latter lawful, cannot be justified on grounds of the direct harm inflicted by the two materials. Further, provided that sexual abuse against children as well as that against adults is criminalised, in the absence of empirical findings pointing out that the consumption of CSEAM has a greater probability of causing sexual abuse, on grounds of infliction of indirect harm as well, it is unreasonable to criminalise the consumption of the former, while the consumption of the latter remains lawful. Thus, the concerned unmerited distinction between consumption of CSEAM and that of the concerned form of NCII is grounded in fallacious reasoning, the futility of which cannot withstand this analogical scrutiny.
*Rishit Jain is a B.A., LL.B. (Hons.) student at the National Law University, Delhi