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A new paradigm of reparation for victims of child pornography

  • Suzanne Ost (a1)

Abstract

This paper sets out the distinctive harm caused and wrong done to child pornography victims. It presents a paradigm of reparation within a restorative justice framework that explains the significance of material reparation for these victims. The paper demonstrates that because of the particular nature of child pornography offences and the harms and wrongs occasioned, existing avenues for legal redress in England and Wales and the USA are generally inadequate and ill-fitting, and that a new mechanism for effecting suitable reparation is required. It concludes by sketching a new mode of restorative justice for victims of child pornography, emphasising significant matters that must be addressed alongside financial redress in order to facilitate victims’ restoration.

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1. It should be noted at the outset that although the CP victim's sexual abuse and its recording often occur in isolation from the distribution and downloading of the image(s) and may be perpetrated by different actors, the boundaries between creators and distributors can blur. For instance, one individual could be the abuser who creates the CP image and disseminates it. However, the creator could be a different individual from the distributor and, in most reported cases, the individuals who have downloaded images are not the child's abuser. Consequently, this paper treats the abuser/creator, distributor and downloader as different individuals.

2. See eg Hudson, BRestorative justice: the challenge of sexual and racial violence’ (1998) 25 J L Soc'y 237 ; Daly, KSexual assault and restorative justice’ in Strang, H and Braithwaite, J (eds) Restorative Justice and Family Violence (Cambridge: Cambridge University Press, 2002); Cossins, ARestorative justice and child sex offences’ (2008) 48 Br J Criminology 359 ; McAlinden, A-MRestorative justice as a response to sexual offending: addressing the failings of current punitive approaches’ (2008) 3 Sexual Offender Treatment 1 .

3. The sparse literature on this issue pertaining to the UK includes Johnson, MSeeking damages for child pornography’ (2011) 98 Pers Injury L J 22 ; M Johnson and J Wheeler ‘Abusive images of children and compensation’, available at http://www.boltburdonkemp.co.uk/articles/abusive-images-children-compensation/ (accessed 9 December 2015). For literature relating to the position in the USA, see that referenced in section 3(c) below.

4. See Taylor, M and Quayle, E Child Pornography: an Internet Crime (Hove: Brunner-Routledge, 2003) p 24.

5. Ibid, pp 4–5.

6. See P Peachey National Crime Agency says system realistically can't prosecute all 50,000 child sex offenders’ The Independent 20 October 2014.

7. UN Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, A/RES/54/263, 25 May 2000, Art 9[3] and [4]. This Optional Protocol was signed by the UK on 7 September 2000 and ratified on 20 February 2009. Note also Art 20[2] of EU Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, which requires Member States to ensure that child victims have access to legal counselling and to legal representation ‘including for the purpose of claiming compensation’.

8. Davis, G Making Amends: Mediation and Reparation in Criminal Justice (London: Routledge, 1992) pp 168171.

9. While adult victims of revenge porn may also suffer psychological harm if they are aware that their image is available for others to view and a violation of their privacy (see the discussion in the text accompanying n 107 below), this paper is not directed towards adult pornography because of the distinction between child and adult pornography; the acts depicted in the former are criminalised since they are always considered to be harmful to the child and the recording of these acts is automatically a crime. See further Ost, S Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge: Cambridge University Press, 2009) pp 3132.

10. See the literature referred to above, n 2.

11. For literature on how restorative justice initiatives can reintegrate and rehabilitate offenders, see McAlinden, above n 2; McAlinden, AM The Shaming of Sexual Offenders: Risk, Retribution and Reintegration (Oxford: Hart Publishing, 2007).

12. It is important to recognise that all potential avenues for reparation require that the victim is identifiable and can be found, a matter that will be returned to in the final section.

13. Johnstone, G Restorative Justice: Ideas, Values, Debates (Cullompton: Willan, 2002) p 64.

14. McAlinden, above n 2, at 2.

15. Sharpe, SThe idea of reparation’ in Johnstone, G and Van Ness, DW (eds) Handbook of Restorative Justice (Cullompton: Willan, 2007) p 24, p 30.

16. On such exploitation, see Ost, above n 9, ch 3.

17. Ibid, pp 32–39, 47.

18. McAlinden, A-M ‘Grooming’ and the Sexual Abuse of Children (Oxford: Oxford University Press, 2013) pp 129130 ; and Ost, above n 9, pp 136–137.

19. For this reason, it has been argued that terms such as ‘abusive images of children’ are more appropriate than ‘CP’ (see Taylor and Quayle, above n 4, p 7). Nonetheless, the latter is used in this paper as it is a commonly recognised term, popularly understood to relate to images involving sexual abuse (see Ost, above n 9, pp 31–32). On the effects of child sexual abuse on victims, see Finkelhor, D Child Sexual Abuse: New Theory and Research (New York: The Free Press, 1984).

20. Taylor and Quayle, above n 4, p 24; see also Ost, above n 9, pp 118–120.

21. von Weiler, J, Haardt-Becker, A and Schule, SCare and treatment of child victims of child pornographic exploitation (CPE) in Germany’ (2010) 16(2) J Sexual Aggression 211 at 214, 217.

22. von Hirsch, A and Jareborg, NGauging criminal harm: a living-standard analysis’ (1991) 11 Oxford J Legal Stud 1.

23. Ibid, at 18.

24. Ibid.

25. Ibid, at 18, 19.

26. Ibid, at 20.

27. See Gillespie, AA Child Pornography: Law and Policy (Abingdon: Routledge, 2011) p 31.

28. Von Hirsch and Jareborg, above n 22, at 29.

29. For empirical evidence of this harm, see von Weiler et al, above n 21, at 216; and M Leonard ‘“I did what I was directed to do but he didn't touch me”: the impact of being a victim of Internet offending’ (2010) 16 J Sexual Aggression 249 at 252.

30. [D]istribution of [CP] violates ‘the individual interest in avoiding disclosure of personal matters …’ New York v Ferber 458 US 747 (1982) 759 n 10 per White J.

31. See eg Baker, DThe moral limits of criminalizing remote harms’ (2007) 10 New Crim L Rev 370.

32. Sharpe, above n 15, p 30; Johnstone, above n 13, p 64; King, MSRestorative justice, therapeutic jurisprudence and the rise of emotionally intelligent justice’ (2008) 32 Melb U L Rev 1096 at 1098.

33. See Leonard, above n 29, at 249.

34. Ibid, at 254. See also Martin, JChild sexual abuse images online: implications for social work training and practice’ (2014) Br J Soc Work 1, 8; von Weiler et al, above n 21, at 216.

35. The difficulties this poses for victims when it comes to satisfying established legal principles of causation under existing potential avenues for redress will be discussed in the next section.

36. Leonard, above n 29, at 252; Svedin, CG and Back, C Why Didn't They Tell Us? On Sexual Abuse in Child Pornography (Stockholm: Rädda Barnen, 2003) pp 6566.

37. Sharpe, above n 15, p 30.

38. Ibid, p 29.

39. Kant, IGroundwork of the Metaphysics of Morals’ in Kant, I and Gregor, MJ (eds) Practical Philosophy: (The Cambridge Edition of the Works of Immanuel Kant) (Cambridge: Cambridge University Press, 1999) p 37.

40. For a full account of the wrongfulness entailed in violating another's privacy rights, even though the victim remains ignorant of this fact, see Moreham, NABeyond information: privacy in English law’ (2014) Camb L J 350 at 352–355.

41. Zehr, H Changing Lenses: A New Focus for Crime and Justice (Scottdale, PA: Herald Press, 1990) p 26 ; Hudson, above n 2, at 254. See also Barnett, RRestitution: a new paradigm in criminal justice’ (1976) 87 Ethics 279.

42. McAlinden, above n 2, at 2.

43. See eg K Pranis ‘Restorative values’ in Johnstone and Van Ness, above n 15, p 59.

44. McAlinden, above n 2; McAlinden, above n 11. For an informative discussion of the different approaches, see Cossins, above n 2, at 360–362.

45. Daly, above n 2, p 84 (emphasis in original).

46. Johnstone, above n 13, p 83. For a critique of restorative justice approaches that place ‘victims in the service of offenders’, see Davis, above n 8, pp 165–167.

47. It is recognised that there is no freestanding right to privacy or dignity at law, and thus the concepts are used in non-legal terms here. See, however, section 2(b)(II) for analysis of both concepts in relation to the tort of misuse of private information.

48. van Dijk, JIdeological trends within the victims movement’ in Maguire, M and Pointing, J (eds) Victims of Crime: A New Deal? (Milton Keynes: Open University Press, 1988) p 125 . See also Sharpe, above n 15, p 27.

49. See generally Duff, RARepairing harms and answering for wrongs’ in Oberdiek, J (ed) Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014) pp 212227.

50. Ibid, p 221. See also Zedner, LReparation and retribution: are they reconcilable?’ (1994) 57 Mod L Rev 228 at 235, 238.

51. Albeit that the ongoing nature of the psychological harm adds to the complexity of deciding upon an appropriate monetary value. Although each case is specific to its facts, in RAR v GGC [2012] EWHC 2338 (QB) offers an example of how damages for the harm caused were calculated in a case involving CP.

52. Duff, RARestoration and retribution’ in von Hirsch, A et al (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart Publishing, 2003) p 43 at p 48.

53. Davis, above n 8, pp 170–171.

54. Johnstone, above n 13, p 63. Focusing on how to restore CP victims is in keeping with the notion of ‘kaleidoscopic justice’ that McGlynn has argued should lie at the centre of the response to sexual violence victims, for whom justice is ‘lived and on-going’. See C McGlynn ‘Kaleidoscopic justice: justice and victim survivors of sexual violence’, available at https://prezi.com/6mguhkw1tkre/kaleidoscopic-justice-making-sense-of-the-lived-complexitie/ (accessed 9 December 2015). For consideration of how the utilisation of sufficient resources to both identify CP victims and offer tailored counselling support is essential to victims’ restoration, see section 4.

55. Protection of Children Act 1978, s.1. Knowingly downloading indecent images is commonly treated as the offence of making indecent images: R v Smith, R v Jayson [2002] EWCA Crim 683, although it as treated as possession for sentencing purposes. See Sentencing Council Sexual Offences: Definitive Guideline (London: HMSO, 2013) p 76.

56. Criminal Justice Act 1988, s 160.

57. Criminal Justice and Public Order Act 1994, s 7(4) and (7).

58. Child sexual exploitation offences under the Sexual Offences Act 2003 (SOA), ss 48–50.

59. By virtue of the SOA, s 45.

60. Coroners and Justice Act 2009, ss 62–68. For analysis, see Ost, SCriminalising fabricated images of child pornography: a matter of harm or morality?’ (2010) 30(2) Legal Stud 230.

61. [2004] 2 Cr App R (S) 82 [9] per Keith J.

62. See Sentencing Council, above n 55, p 78; Sentencing Council Sexual Offences Guideline Consultation (London: HMSO, 2012) pp 12, 77, 78.

63. Including suffering by way of distress and anxiety: Bond v Chief Constable of Kent (1982) 4 Cr App R (S) 314.

64. Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA), s 130(1) and (2A).

65. See further Ashworth, A Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 6th edn, 2010) p 342 ; Criminal Justice Act 2003, s 142(1)(e).

66. PCCSA, s 130(4) and (11); R v Webb (1979) 1 Cr App R (S) 16.

67. R v Donovan (1981) 3 Cr App R (S) 192, [4] per Eveleigh LJ.

68. Rowlston v Kenny (1982) 4 Cr App R (S) 85, CA.

69. Cf the offence of affray and, for example, R v Taylor (1993) 14 Cr App R (S) 276.

70. Personal communications from the Ministry of Justice dated 16 January 2013 (968-12 FOI 79753) and 13 January 2014 (1012–13 FOI 87598), on file with author. To put this into proportion, there were 7594 convictions for these offences between 1994 and 2007 (Gillespie, above n 27, p 6). More broadly, compensation orders were only awarded in 3.5% of Crown Court cases in 2013. See Ministry of Justice Criminal Justice Statistics Quarterly: December 2013: Sentencing Tables (2014) Table A5.17, available at https://www.gov.uk/government/statistics/criminal-justice-statistics-quarterly-december-2013 (accessed 9 December 2015).

71. The high number of cases in which victims are not identified has recently been noted by the Sentencing Council. See Sentencing Council, above n 62, p 77.

72. This perception may have been encouraged by seemingly contradictory parts of the (now replaced) Sentencing Guidelines Council's Definitive Guideline for the SOA offences. See Sentencing Guidelines Council (SGC) Sexual Offences Act 2003: Definitive Guideline (London: HMSO, 2007) pp 108114 and para 6.9. This Guideline was replaced on 1 April 2014 by the current Guideline (see Sentencing Council, above n 55).

73. Ministry of Justice The Criminal Injuries Compensation Scheme 2012 (London: HMSO, 2012); Criminal Injuries Compensation Authority A Guide to the Criminal Injuries Compensation Scheme (London: HMSO, 2012) s 2[4] and [10].

74. Ibid, s 4[3].

75. Ibid, app 3, pt B, at 90–91.

76. Notwithstanding this, in cases where the offender is over 18 and has been sentenced to at least 12 months imprisonment, distributors and downloaders must comply with sex offender notification requirements. See SOA, Sch 3, [13] and [15].

77. Johnson, above n 3.

78. See also Miers, DCompensating deserving victims of violent crime: the Criminal Injuries Compensation Scheme 2012’ (2014) 34(2) Legal Stud 242 at 250.

79. Ibid, at 250.

80. Johnstone, above n 13, p 74.

81. Strang, H Repair or Revenge? Victims and Restorative Justice (Abingdon: Routledge, 2002) p 17.

82. Legal aid can be made available in cases involving child abuse, but it is not granted as of right. Even in a ‘no win no fee’ arrangement, successful claimants must now pay after-the-event insurance premium out of their compensation (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 44).

83. See Duff, above n 49, p 219.

84. See Case, P Compensating Child Sexual Abuse in England and Wales (Cambridge: Cambridge University Press, 2007) p 37 ; Ashworth, above n 65, p 325.

85. As exemplified by A v Hoare [2008] UKHL 6. The principle of vicarious liability might be invoked to target a wealthier defendant (see eg Lister v Hesley Hall Ltd [2002] 1 AC 215). However, such an action would only be available in a case where the unauthorised acts are ‘inextricably interwoven’ with the duties of employment (per Lord Hutton, at 229). It is therefore very unlikely that the principle could be invoked where, for example, an individual has distributed CP from, or downloaded images onto, his employer's computer.

86. Rookes v Barnard [1964] AC 1129, at 1227 (Lord Devlin's second class of cases in which exemplary damages could be awarded); John v Mirror Group Newspapers Ltd [1996] 3 WLR 593.

87. See Rookes v Barnard, ibid, at 1221 per Lord Devlin. Such damages have been awarded in, for instance, the torts of battery (eg Appleton v Garrett [1996] 5 PIQR P1) and the misuse of private information (eg Campbell v MGN Ltd [2004] UKHL 22). See Murphy, JThe nature and domain of aggravated damages’ (2010) 69 Camb L J 353 at 358.

88. Case, above n 84, pp 54–59.

89. On the limitation period, see Civil Evidence Act 1968, ss 11 and 33; CXX v DXX [2012] EWHC 1535 (QB); RAR v GGC [2012] EWHC 2338 (QB).

90. Ibid.

91. Contribution proceedings may be brought by one tortfeasor against another: Civil Liability Contribution Act 1978.

92. Campbell v MGN [2004] UKHL 22; Murray v Express Newspapers [2008] EWCA Civ 446; Mosley v News Group Newspapers [2008] EWHC 1777.

93. D v L [2004] EMLR 1 at [23].

94. Ibid, at [36].

95. Murray, above n 92.

96. D v L, above n 93 [11], per Nicholls LJ.

97. Mosely, above n 92, at [7] per Eady J. See also Campbell, above n 92, at [50], [51] per Hoffman LJ.

98. X and Y v Netherlands (1985) 8 EHRR 235.

99. Mosely, above n 92, at [216].

100. PRHA s 1(1).

101. PRHA s 7(2).

102. Thomas v News Group Newspapers Limited and another [2001] EWCA 1233, at [30] per Lord Phillips MR.

103. Dowson v Chief Constable of Northumbria Police [2010] EWHC 2621 (QB), [142].

104. There is a 6-year limitation period: PRHA ss 3 and 6.

105. The course of conduct must occur on at least two occasions: PRHA s 7(3)(a); Lau v DPP [2000] 1 FLR 799, at [15].

106. Johnson and Wheeler, above n 3.

107. [2011] EWHC 3454 (TCC).

108. Ibid, at [14]–[20].

109. Ibid, at [45] per Ramsay J.

110. See Martin, above n 34, at 8.

111. Ibid, at [12].

112. Ibid, at [44].

113. Taylor and Quayle, above n 4, pp 78, 94, 207. Although see CEOP Threat Assessment of Child Sexual Exploitation and Abuse (London: CEOP, 2013) p 8 [23].

114. DPA, s 1.

115. Section 2(c) refers to data relating to an individual's sexual life.

116. Ibid.

117. See the explanation provided by White, AData protection and the media’ (2003) Supp 25 Eur Hum Rts L Rev 26.

118. DPA, Sch 3 [1–10].

119. Other than legitimate processing of data by the police. See Protection of Children Act 1978, s 1B.

120. DPA, s 13.

121. It should be noted that there is uncertainty regarding how damage is defined for the purposes of the DPA. The Court of Appeal held in Vidal-Hall v Google Inc [2015] EWCA Civ 311 that compensation could be awarded for distress alone without the need to prove financial loss, but this judgment is being appealed.

122. As Johnson has contended might be possible under the DPA: Johnson, above n 3.

123. See C v D [2006] EWHC 166 (QB) at [100], [102]. The judge applied Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1.

124. Reid, M and Collier, CWhen does restitution become retribution?’ (2012) 64 Okla L Rev 653 ; Marsh, JMasha's law: a federal civil remedy for child pornography victims’ (2010–2011) 61 Syracuse L Rev 459 . The legal conception of restitution under American law thus clearly differs from the conception under the law in England and Wales, which has at its base the idea of awarding the victim the defendant's gain-based damages. See Edelman, J Gain Based Damages: Contract, Tort, Equity and Intellectual Property (Oxford: Hart Publishing, 2002). Here, restitution is the remedy available in the entirely private law category of unjust enrichment. See Birks, P Unjust Enrichment (Oxford: Oxford University Press, 2003).

125. Such as employing or coercing ‘any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct’ and knowingly distributing and possessing such material (Ch 110 of the US Code (USC), §2251(a) and §2252A).

126. 18 USC §2259(b)(1).

127. Ibid, (b)(3).

128. RW Jacques ‘Amy and Vicky's cause: perils of the federal restitution framework for child pornography victims’ (2010–2011) 45 Ga L Rev 1167, 1178. The courts have also emphasised a conception of restitution based on rehabilitation and deterrence: Kelly v Robinson 479 US 36 (1986), 49, n 10.

129. Fields, BARestitution and restorative justice’ (2003) 22 Youth Stud Austral 44 at 45.

130. US v Simmonds 235 F 3d 826, 831 (3d Cir 2000) (emphasis added).

131. A Downes et al ‘Assessing current restitution law to effectively serve victims in child abuse imagery cases’ (2011) 22 Update 1 at 5.

132. DiBari, DRestoring restitution: the role of proximate causation in child pornography possession cases where restitution is sought’ (2011) 33 Cardozo L Rev 297 at 301.

133. See further Reid and Collier, above n 124, at 657. Their lawyers receive notification when the images are discovered in an arrested individual's possession by virtue of the Crime Victims’ Rights Act of 2004.

134. 2009 WL 2827204 (SD Fla Sept 2, 2009).

135. US v Brunner 2010 WL 148433 (WDNC 12 January 2010).

136. See eg US v Paroline 672 F Supp 2d 781 (2009); US v Aumais 656 F 3d 147 (2011); US v Fast 709 F 3d 712, 722 (8th Cir 2013); Reid and Collier, above n 124, at 657–658.

137. Ibid, at 792 per Davis J.

138. Other criticisms include judicial confusion as to the method of calculating restitution. See Reid and Collier, above n 124.

139. ‘… [T]he requirement of proximate causation … would prevent holding any possessor liable for losses caused only in a remote sense’. Paroline v US 134 S Ct 1710 (2014) at 1723, per Kennedy J.

140. 18 USC §2259(b)(3)(F).

141. 2009 WL 2827204 (SD Fla 2 September 2009).

142. Hence, DiBari contended that in such cases finding harm is equated with finding causation. DiBari, above n 132, at 311. And see US v Paroline (2009), above n 136, at 791.

143. See Sharpe, above n 15.

144. US v Paroline, above n 139.

145. Ibid, at 1723, per Kennedy J. Nor was it appropriate to apply a less restrictive causation standard such as the aggregate causation test, which would hold that each possessor ‘was part of a causal set sufficient to produce her ongoing trauma, so each possessor should be treated as a cause in fact of … all the attendant losses incurred as a result of the entire ongoing traffic in her images’ (at 1724). According to the majority judgment, this would ‘amount to holding each possessor … liable for the conduct of thousands of other independently acting possessors and distributors …’ (at 1725–1726).

146. Ibid, at 1726.

147. Ibid, at 1727.

148. Ibid, at 1728.

149. Ibid, at 1729.

150. Ibid, at 1734.

151. The difficulties posed by the Supreme Court's ruling can be seen in recent federal district court cases such as US v Crisostomi 31 F Supp 3d 361, 365 (DRI 2014); US v Rogers 758 F 3d 37 (1st Cir 2014) and US v Hanlon No 2: 14-CR-18-FtM-29DNF (MD FL 23 January 2015). In response to the Supreme Court's judgment, the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015 (AVA) was introduced in January 2015 and passed by Senate in February 2015. The Act would set restitution amounts for CP victims and is currently being considered in the House: see https://www.congress.gov/bill/114th-congress/senate-bill/295 (accessed 9 December 2015).

152. See McAlinden, above n 2, at 3.

153. Cf eg Curtis-Fawley, S and Daly, KGendered violence and restorative justice: the views of victim advocates’ (2005) 11 Violence Against Women 603 ; and Daly, KRestorative justice and sexual assault: an archival study of court and conference cases’ (2006) 46 Br J Criminol 334, with Cossins, above n 2.

154. See the discussion in Daly, ibid, at 338. cf McAlinden, A-MAre there limits to restorative justice? The case of child sexual abuse’ in Sullivan, D and Tifft, L (eds) Handbook of Restorative Justice: A Global Perspective (London: Routledge, 2006) p 299 at p 303.

155. Daly, ibid; Koss, MP, Bachar, KJ and Quince Hopkins, CRestorative justice for sexual violence: repairing victims, building community, and holding offenders accountable’ (2003) 989 Ann NY Acad Sci 384 at 387.

156. See Ost, above n 9, chs 2 and 4. However, while not directly relevant to the CP context, it is noted that teenage victims of ‘group localised grooming’ have frequently been treated as though they were on trial by the criminal justice system. See Mooney, J and Ost, SGroup localised grooming: what is it and what challenges does it pose for law and society?’ (2013) 25(4) Child & Fam L Q 425.

157. This is because of the nature of offences related to distribution and downloading, which do not directly involve the child. The offences are laid out above (section 3(a)(I)). Also, in a trial related to the creation of CP, all special measures under the Youth Justice and Criminal Evidence Act 1999 would be available to protect CP victims.

158. Hudson, above n 2, at 247.

159. Cossins, above n 2, at 365. It is notable that one sexual offence victim whose experience of conferencing was more negative than positive overall was ‘drawn into, manipulated, and groomed by [the offender] for sexual relations over a considerable period of time’. See Daly, K and Curtis-Fawley, SJustice for victims of sexual assault: court or conference?’ in Heimer, K and Kruttschnitt, C (eds) Gender and Crime: Patterns of Victimization and Offending (New York: New York University Press, 2006) p 230 at p 257.

160. K Pranis ‘Restorative justice values and confronting family violence’, in Strang and Braithwaite, above n 2, p 23 at p 37 (emphasis added).

161. See J Stubbs Domestic Violence and Womens Safety: Feminist Challenges to Restorative Justice in Strang and Braithwaite, above n 2, p 42 at p 58 (in the context of men who abuse their partners). On the manipulative setting up of situations to enable grooming, see McAlinden, above n 18, p 126.

162. While there is currently no research to support this position, it is supported by the leading clinical psychology expert on child pornography offending and victims, Dr Ethel Quayle (personal communication, 30 October 2015).

163. Leonard, above n 29, at 251.

164. The exact nature and practicalities of such a model of reparation is the subject of the author's ongoing research.

165. See above n 55.

166. See also Jacques, above n 128, at 1191.

167. See above n 7, Art 9[3] (emphasis added).

168. Holland, GIdentifying victims of child abuse images: an analysis of successful identifications’ in Quayle, E and Taylor, M (eds) Viewing Child Pornography on the Internet: Understanding the Offence, Managing the Offender, Helping Victims (Lyme Regis: Russell House Publishing, 2005) p 77.

169. See Gillespie, above n 27, pp 332–333, 360; Carr, J and Hilton, ZCombating child abuse images on the Internet: international perspectives’ in Davidson, J and Gottschalk, P (eds) Internet Child Abuse: Current Research and Policy (Abingdon: Routledge, 2011) p 72.

170. See ‘Child abuse database containing millions of images to launch’ BBC News 2 December 2014, available at http://www.bbc.co.uk/news/technology-30175102 (accessed 9 December 2015).

171. The right to know and the right not to know have been explored predominantly in medical law and ethics in relation to processing genetic information and are most commonly seen to be connected to rights of autonomy and privacy (see eg Borry, P, Shabani, M and Howard, HCIs there a right time to know? The right not to know and genetic testing in children’ (2014) 42 J L Med & Ethics 19 at 21–22; Chico, VRequiring genetic knowledge: a principled case for support’ (2015) 35 Legal Stud 532). The marked difference is that, in the genetic context, the person who has undergone genetic testing is already aware there is sensitive information about herself that she may or may not wish to know. She then exercises her autonomy in deciding whether or not to know the results, taking into account the reasons in favour of knowing and against knowing. In contrast, the unaware victim of sexual abuse and CP has no knowledge of the existence of the information about the crimes committed against her, and is therefore unable to exercise her autonomy and weigh up the reasons for and against knowing it without first being informed of its existence by the police. Thus, in order to exercise a claimed right to know, she needs to be informed of the existence of information about herself, and it is extremely difficult to envisage how she could be alerted to its existence without its essence being revealed (see Laurie, GRecognizing the right not to know: conceptual, professional and legal implications’ (2014) 42 J L Med & Ethics 53 at 54). Consequently, it would appear more difficult to respect a right to know for a CP victim without defeating a right not to know. Similarly, if the police refrain from revealing the information, they deny the victim any right to know the information.

172. See eg Wilson, JIt's time to stop worrying about paternalism in health policy’ in Schramme, T (ed) New Perspectives on Paternalism and Health Care (London: Springer, 2015) p 203 at pp 214–215.

173. See also Taylor and Quayle, above n 4, pp 206–207.

174. T Palmer ‘Behind the screen: children who are the subjects of abusive images’ in Quayle and Taylor, above n 168, p 61 at p 65: ‘[w]e know little about the impact of such a revelation on the now adult “child victim” and need to think strategically about why and when such a disclosure may be necessary …’. This is also the subject of the author's ongoing research.

175. Police policy guidelines on the identification of now older victims have been said to be ‘poorly thought through and expressed’: Taylor and Quayle, above n 4, p 207.

176. Reasons cited for non-disclosure in one study were ‘guilt’ and ‘fear of the threats of the perpetrator’: von Weiler et al, above n 21, at 213.

177. Taylor and Quayle, above n 4, p 206.

178. For a case in point, see ‘Charity boss Simon McCarty jailed for child abuse’ BBC News 7 September 2012, available at http://www.bbc.co.uk/news/uk-england-19526503 (accessed 9 December 2015).

179. Martin, above n 34, at 3.

180. Von Weiler et al, above n 21, at 221. See also Martin, J“It's just an image, right”: practitioners’ understanding of child sexual abuse images online and effects on victims’ (2014) 35 Child & Youth Services 96.

181. Martin, ibid, at 98, 99. See also British Association of Social Workers ‘Social workers need more support in dealing with online abuse of children’ (2013), available at https://www.basw.co.uk/news/article/?id=556 (accessed 9 December 2015).

182. Ibid, at 101.

183. Martin, above n 34, at 5. Indeed, Martin concludes that because ‘[c]urrently, trauma treatment models in social work focus on managing post-trauma symptoms[, a] conceptual shift is required to recognise the various needs of children who know, or may become aware, that images of their abuse are in circulation online … this conceptual shift should be based on developmental needs (e.g. how the child “makes meaning” of the potential permanence and accessibility of the online image) and include the recalibration of trauma frameworks …).’ Martin, above n 34, at 13.

184. Ibid, at 6.

185. Ibid, at 10.

* I am grateful to James Marsh for the invitation to speak on a panel at the International Symposium World Society of Victimology at The Hague in May 2012, which prompted the writing of this paper. Thanks to the journal’s anonymous referees for their very helpful comments. Thanks also to Andrew Ashworth, Antony Duff, Sara Fovargue, Alisdair Gillespie and especially to John Murphy, who kindly took the time to read and provide constructive comments on earlier drafts. The usual caveat applies.

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