There appears to be a confusion among members of the public regarding what the term ‘child pornography’ refers to. The term ‘pornography’ implies that the persons depicted in the image or video have consented to the production of the said media. Given that children are rarely in positions to meaningfully offer consent (an exception perhaps might be of a teen couple close in age sharing images with each other), and legally in India they cannot consent to sexual activity, what is described as child pornography is in actuality media produced of children being abused. The accepted term, therefore, is child sexual abuse materials or CSAM.
This context is important given the recent Madras HC order quashing the criminal proceedings against a man for downloading two videos depicting children being sexually abused. The man was booked under section 67B of the IT Act as well provisions of the POCSO Act. However, the court said his action was not an offence under the IT Act (section 67B, subsection b) despite the law criminalising the seeking, browsing or downloading of CSAM. Instead the court relied on a Kerala HC judgement to say that merely viewing ‘child pornography’ is not an offence.
The Kerala order referred to an individual viewing pornography (of adults) in private and held that it could not be an offence. The nature of the case before the Madras High Court was entirely different. However, the court, while terming the act as possibly evidence of moral decay, undermined its gravity by conflating the viewing of CSAM with the viewing of pornography by Generation Z. By doing so, it lost sight of the reason why the production, dissemination and even downloading of CSAM is considered unlawful.
For one, the production entails the sexual exploitation of children, while the consumption perpetuates the exploitation both by creating a demand as well as re-objectifying and exploiting the child victim through each viewing. Second, several studies have shown that a significant number of viewers of CSAM (including material digitally generated) may go on to commit in-person abuse of a child. The viewing of such materials contributes to lowering a moral threshold that might otherwise prevent ‘contact abuse’. While every accused is entitled to their day in court, the voice of the children victimised by their alleged consumption of materials produced through their abuse should not be silenced.