The world of child sexual exploitation is a complex one including many crimes. Research and caselaw indicate that child pornography often is found intertwined with other sexual material demonstrating a sexual interest in children. Such material includes, but is not limited to, sexualized pictures of nude or semi-nude children; surreptitiously recorded videos of children focusing on their breasts or genitals; writings on the most successful methods of facilitating child molestation, etc. That child pornography producers and collectors can often possess some such material is perhaps of no surprise. That criminal courts are referring to such material with the artistic term of “child erotica,” suggesting validation, is problematic. Its use must cease.
Within the last decade there has been a significant international movement to replace the term “child pornography” with the label “child abuse images.” This change is motivated by a realization that the latter term more clearly identifies the content of the material, and avoids the suggestion that such victimization is analogous to possessing adult pornography. This paper proposes a second step to this movement, removing from our language the term “child erotica” and replacing it with descriptive norms or, when labels are necessary, the more precise terms of “child exploitation images” and “child exploitation paraphernalia.”
Just as the term “child pornography” has been replaced in research and legal circles,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label incorrectly suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued. Third, that the misnomer is emerging in legal opinions compounds the problem. The term has been improperly incorporated by the criminal courts. Divorced from its roots in art and literature, it claims to reference anything, no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography or child abuse images. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one inaccurate label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes.
This paper traces the roots of the term as originally intended in the artistic and social science realms. It then analyzes this corrupted use of the term in legal opinions, demonstrating the potential shortfalls of the current misuse. The paper then proposes that in criminal courts a descriptive norm replace this categorical norm when referencing material that is considered sexually exploitive of children, although not child abuse images per se. First Amendment concerns arise whenever one discusses the use of protected speech. The paper discusses these concerns. Within that analysis it eliminates many such concerns by (a) focusing on material unrelated to artistic genres and (b) acknowledging the current legality of much of the material. The paper calls for no controls of speech, but rather a more precise labeling which leads to more accurate legal analysis of evidence in child exploitation cases.
Language matters. Labels matter. Socially, language and labels matter because they can reflect cultural norms and values. In criminal litigation, labels matter because inaccurate labels can contribute to inaccurate assessment of evidence which can cause inaccurate results. At times, terms are so inaccurate and misleading, they become damaging. “Child erotica” is such a term and it must be replaced.
Mary Graw Leary, Death to Child Erotica: How Mislabeling the Evidence Can Risk Inaccuracy in the Courtroom, 16 CARDOZO J. L. & GENDER 1 (2009).