Wrong language, weak sentences, poor resources: victims and those who support them are frustrated with the criminal justice system’s response to child sexual abuse material.reports
For close to 30 years Colin Power lived not only with the trauma of child sex abuse but the added horror of knowing his abuser had recorded his ordeal.
Bill Kenneally took graphic polaroids of the boys he sexually assaulted, forcing them to pose with smiles and telling them that if they spoke about what he did, he would show the pictures as ‘proof’ that they were willing partners in his vile attacks.
His trial in 2016 heard claims that he had destroyed the photographs years earlier but Colin and the other boys did not know that, nor can they be entirely sure he really did.
“It was a form of power over us. We were all aware that he had taken photos of us and we had the fear then of what he might do with those photos or who he’d show them to,” he says.
“That would always have been in the back of your mind, maybe not consciously all the time but certainly subconsciously.
I think that the child sex abuse images that people access now is for a slightly different reason than what Kenneally took our pictures for. I think it was more to have a hold over us, power over us for us to be fearful of what he’d do. But I could be wrong.
Either way, Colin feels somewhat fortunate that Kenneally, currently serving 14 years for sexual assaults on 10 boys, did not have access to the internet in the way that others like him do now.
The constraints of 1980s technology meant Kenneally was limited in what he could do but today, an image taken for perverted personal pleasure, for commercial gain or, as Kenneally used them, for ‘insurance’, can be all over the world in minutes.
Physical sexual abuse can stop, an offender can be convicted and, with time and support, a victim can become a survivor but when images are unleashed to the unrestricted world of the internet, a form of torture is inflicted over and over again without end.
And every time Colin reads about a court case involving child pornography, it bothers him deeply.
That phrase, child pornography, is only the start of Colin’s concerns. “I really think something needs to be done about the term ‘child pornography’. To me there’s no such thing as child pornography. That term dilutes the crime. It is child sex abuse images.”
Colin is not alone in believing the term ‘child pornography’ is problematic in that its association with legal and widely accepted adult pornography can have the effect of normalising it or at least diminishing its harm in the public mind.
One in Four, CARI (Children at Risk in Ireland) and the Rape Crisis Network of Ireland (RCNI) are just some of the many organisations that also object to the term.
“I really hate the term child pornography,” says Maeve Lewis, executive director of One in Four. “It almost legitimises it because it takes the emphasis off the sexual abuse which is what it is.”
The Garda Inspectorate, in a comprehensive examination of the the law’s response to child sexual abuse last year, made a point of stating that while it was referring to child pornography, it would be using the term ‘child abuse material’ throughout its report.
Gardaí themselves tend to use the term ‘child exploitation material’ in public statements but not in the preparation of prosecutions or in court. There, they are stuck with the language of the Child Trafficking and Pornography Act 1998, the key piece of legislation dealing with the crime.
The act has been updated by amendments contained in the Criminal Law (Sexual Offences) Acts of 2017 and 2019 but the language remains the same.
The Department of Justice says it appreciates the concerns but urges caution against the assumption that the wording could be easily changed.
“Any proposed change to terminology would need to be considered very carefully as it may have far-reaching or unintended consequences,” it said in a statement.
The terminology in question is used elsewhere in the statute book, and also appears in the title to the 1998 Act itself. A change in the term would therefore require amendments to each piece of legislation where it appears, and the entire Act of 1998 would also need to be repealed and replaced in order for the title to be changed.
“The law is always kept under review in the department, and the department understands the reasons for the request for this change. Consideration will be given to this matter in any future review of child pornography law.”
There is at least a prospect of change in what the department says but as already mentioned, the law has been reviewed and strengthened several times in recent years without addressing this aspect of it.
Something else has remained a constant too — the maximum sentence that can be handed down on conviction. Five years’ imprisonment is the most a judge can impose but in reality it is hard to find a case where that has actually happened.
Over the past year or so, judges around the country have pronounced the evidence presented to them to be reprehensible, vile and deeply concerning and one even declared there was a need for greater deterrence to stop the crime.
Their sentiments were undoubtedly genuine — some were dealing with cases where the number of images and videos accessed by a defendant reached tens of thousands, or where the victims were babies, or where the level of depravity involved was sickening in the extreme.
And yet, in looking back over dozens of cases in the last two years, none cropped up where the maximum custodial sentence was imposed.
“The sentences are pitiful a lot of the time,” says Colin Power. “If there’s lenient sentences or if there is totally suspended sentences, that’s not proving a deterrent to somebody who’s sitting at home accessing these horrific images.
If they saw proper sentences, it might make them think twice about it.
One of the difficulties for a judge considering what sentence to impose is that if any period of post-release supervision is ordered, the law states that the total of this period of time plus the jail term must not exceed the five-year maximum sentence.
The Sex Offenders Act 2001 states: “The aggregate of the sentence of imprisoned….and the supervision period shall not exceed the duration of the maximum term of imprisonment that may be imposed in respect of the sexual offence concerned.”
Given the importance of monitoring an offender after they leave prison to see how they are getting along in a world of mobile devices and digital temptation, most judges are keen to provide for a period of post-release supervision.
But if it is to be a meaningful amount of time — say 18 months — that means the jail term can be a maximum of three and a half years. With standard remission, the offender would serve just two years, seven and a half months behind bars.
Maeve Lewis does not think it likely that the maximum sentence would be increased under any future legislative review but she does believe it should be possible to impose a five-year jail term and follow up with monitoring afterwards.
I absolutely believe that the post-release supervision element should be independent of the custodial term.
“It should not be combined because that way, no-one ever gets the maximum sentence or if they do, they don’t have a period of post-release supervision. It’s an area of the law that we really need to look at.” The RCNI examined the trade-off between jail time and post-release supervision in 2009 when the Department of Justice sought submissions on the management of sex offenders in the community.
Barrister and RCNI legal director, Caroline Counihan, says the dilemma it presented for judges was evident back then.
“At the time we wanted to make a recommendation to extend the period of supervision beyond the period of the sentence but the advice we got was that a determinate sentence had to come to an end at a particular point and you couldn’t extend it indefinitely.”
The alternative — of increasing the maximum sentence from five years — also presented problems.
“You need to differentiate the levels of seriousness in the types of offences — possession of child pornography which we’re talking about here versus producing or distributing it which is treated more seriously.
“If you increase the maximum sentence for possession, do you then increase the sentences for the others and if you don’t, are you saying they’re not as serious as they were originally regarded?”
At the moment, the maximum sentence provided for the worst of the offences dealt with under the Child Trafficking and Pornography Act 1998 is 14 years.
It is unlikely that would be increased given that it is also the maximum sentence for any offence in Irish criminal law apart from those for which it is possible to receive life, such as murder, manslaughter, rape, aggravated burglary and certain drugs offences. Even then, ‘life’ can turn out to be less than 14 years.
Emma Little, interim chief executive of CARI, is not convinced that increasing sentences — by statute or in practice — would achieve the kind of change that people working in the area of child protection want to see.
“It’s quite an antiquated idea that longer sentences are more effective, that punishment can be a deterrent. If it was, we would have no crime,” she says.
“We use it to satisfy the desire for quick, simple justice. It makes us feel better. But the longer the sentence, the more institutionalised people become.
“Some studies suggest anything over four years may be counterproductive. The prisoner is excluded from society and then they come back with an expectation that they’re going to behave like the rest of society. That may be expecting too much.
“Also, it costs €76,500 to keep one prisoner incarcerated for a year while our therapies for the children we help cost €8,000 for one year. When you are investing in years of custody, you are paying almost ten times for the perpetrator than for the victim. It becomes all about the perpetrator.
There needs to be another way of dealing with these people while paying more attention to the victims. There is a lot of work being done around restorative justice and there may be models there that are worth exploring.
“Custodial sentences are important — they do explain that these are serious crimes — but it’s not a clear-cut solution any more and maybe it never was.”
But even taking into consideration the limitations of the law and whatever debate there may be about the usefulness of longer sentences, judges are still shying away from imposing the maximum sentence.
Plea bargaining is not an official term in the Irish criminal justice system but even it if was, Emma Little would have a different description for it. “It’s horse-trading in the middle of the court,” she says with disapproval.
The defence is trying for a lighter sentence, the prosecution is trying to finish the case and the agreement is whatever keeps them all happy. The victim isn’t at the centre.
It is certainly the case that a defendant will be looked upon more favourably if they plead guilty and do so at the earliest opportunity whether or not the motivation is genuine remorse or a strategy aimed at saving their own skin.
Mitigating circumstances also play a part — too big a part if you ask Colin Power. “He’s had a hard life, he’s not the brightest, he’s a hard worker, he has a good family supporting him — I don’t think any of that should matter,” he says.
“So what if he has a good family? That says something about them, not about him. He’s done wrong and this just makes excuses for why he shouldn’t have to pay for it. It allows others to excuse themselves for doing the same.”
The use of character witnesses also bothers Colin. “I can understand someone coming in to court to speak up for somebody who’s maybe hit a fella a dig. It can be completely out of character and there might have been something going on in their life at the time.
“But when you see people charged with having thousands of images and looking at them for years, you can’t say they’re normally of good character.
“You can’t say you know them at all because if you did, you’d have known what they were doing. These people are so manipulative, you can’t presume to know them.”
There may be another reason that sentences for possession of child pornography tend to be on the low side, Clíona Saidléar, RCNI executive director suggests. She says it is possible that the law is applied in a way that reflects the views of a society that still does not fully get the seriousness of the crime.
“Our sentencing regime needs to be appropriate to the harm caused but we run into the mens rea question here,” she says.
In other words, did the perpetrator fully appreciate the harm they were causing and intend to cause it?
If the answer to those questions is genuinely no, then the question needs to be asked what is going on in society that someone could grow to adulthood without understanding the horror of what they are participating in.
“Judges say all the right things in court but it feels like we’re in a place where these perpetrators are somehow different from other criminals, that we don’t really regard this as criminal behaviour,” says Saidléar.
Is part of that because there is a bit of a soft underbelly here? The question is often asked on social media, if all women know at least one woman who has been raped, why aren’t all men saying they know at least one man who is a rapist? Because it would be a very uncomfortable truth.
“I’m wondering is it the same here? I’m thinking how widespread and ubiquitous is the acceptance of pornography, violent pornography and the ‘barely legal’ pornography and then from that, pornography that moves down the line in terms of age to children?
“We try to separate out child sexual abuse and pornography but they actually are part of a continuum. Possibly we have a reluctance to face up to it because possibly it implicates an awful lot of people.”
So what would help change attitudes? The law can be a catalyst, says Saidléar. “One of the things we have to look at is how the law can work to set a standard, to lead a change in our culture.
“If the law doesn’t regard this as truly criminal, or people think no-one gets caught for this or no-one spends time in jail for this, all these dots join up to create a certain perception.
“There is no doubt that being charged with a criminal offence itself will be a short, sharp shock for many people who normalised and mainstreamed child pornography into their life.
But what we do after that in terms of ensuring both that the punishment is appropriate to the crime and that there is an actual change in behaviour — that’s something we need to look at in more depth.
Her colleague, Caroline Counihan, says sentencing guidelines for judges are badly needed. But the Judicial Council Bill, which proposes the creation of a ‘Sentencing Guidelines and Information Committee’, has been crawling through the houses of the Oireachtas for two years.
“It’s a knotty one. As a sentencing judge, all one can do is try to balance it so that the custodial part reflects the seriousness of what has happened while the part that is suspended is long enough to be meaningful and really those two horses don’t run very well together,” she says.
“I don’t think judges make overly liberal decisions, I really don’t,” she stresses. “But this is exactly the sort of issue that a sentencing guidelines committee ought to be chewing over.
“We need an up-to-date sentencing database. Somebody has to collect the data and then we can all make sensible decisions or critique those who don’t.”
Colin Power says up-to-date investigative tools are crucial as he fears lengthy delays in bringing perpetrators to court may be creating a certain amount of sympathy for them when it comes to sentencing.
Trials regularly hear that an accused was arrested anything from three to six years previously but the case is only progressing now because of delays in having computers and other devices forensically examined, and the Garda Inspectorate report from 2018 also found this was a common occurrence.
“It was six years for Kenneally’s computer to be examined,” Power says. “The gardaí have to get serious and that backlog has to be sorted because he [the perpetrator] is coming to court and his solicitor is saying he’s had this hanging over him for so long and he hasn’t been able to work and it’s been very tough and all of that and it’s like the judge thinks he doesn’t want to punish him any more.
“I think everyone thinks the victim is too removed from what’s going on to be affected and I know it is mainly foreign children in these images but that victim is a child — it doesn’t matter if they’re Irish or any other nationality.
And there is no doubt in my mind that there are images of Irish kids all over the internet and maybe those images are out in the Philippines or Thailand or somewhere. If anybody said to me there are no Irish children being filmed for this kind of stuff I’d tell them they’re very naive.
Ease of access has pushed back against the law
Hard though it is to believe now, 21 years ago there was no specific law on child pornography.
Producers of it could be prosecuted for various sexual offences but possession fell into a “gap” in the words of Fianna Fáil TD John O’Donoghue who introduced the Child Pornography Bill while in opposition in 1996.
He told the Dáil that the penalties contained in the bill, which he later passed as the Child Trafficking and Pornography Act when he was minister for justice in 1998, would “strike fear into the hearts of the ultimate consumers of this wicked enterprise”.
“If there was no demand, there would be no production and if there was no production there would be no exploitation of innocent children on the scale which, regrettably, takes place,” he said.
But in the two decades since, the volume of child sexual abuse material in circulation has mushroomed. Figures cited in a Garda Inspectorate report put the number of images available online in 1990 at an estimated 7,000; by 2016, it was more than 10m.
In Ireland, hotline.ie, run by the Internet Service Providers Association of Ireland to enable the public to report websites of concern, saw reports rise 40% in 2017 over 2016.
From those reports, it confirmed 524 individual sources of child pornography and delivered the grim observations that the images they were finding were becoming increasingly extreme and sadistic and the children involved were getting younger.
The number of child pornography offences recorded here has also increased by multiples. Throughout much of the noughties, there were between 37 and 80 offences recorded each year. In the six years from 2013 to 2018, that grew from 116 to 392.
The Central Statistics Office cautions that those figures are provided ‘under reservation’ as they require further verification but the trend is very clear.
Most offences recorded in Ireland come to light through Interpol, Europol or police forces in other countries with specialist units dedicated to tracking down online child sexual abuse images and the IP (internet protocol) addresses of the devices accessing them.
When those addresses point to Irish users, the information is passed on to gardaí.
In February last year, gardaí launched Operation Ketch, a series of intensive crackdowns on suspected users of child pornography.
Some 160 addresses have been targeted and searched since, with large numbers of computers and other devices being seized.
Arising from the first phase, four suspects made almost immediate admissions and their stash of images alone ran to more than 150,000 which gives some indication of the massive scale of the problem.
Scale is just one issue, however. Gardaí are also having to deal with a wider range of child pornography including graphic cartoons, computer-generated images and child sex dolls, all of which present challenges in terms of classification and proof that they constitute illicit material.
It seems whatever fear it was hoped the law would generate has been well diluted by ease of access.