Child pornography can take three forms:

• Representation of a minor child in the context of an explicit sexual activity;
  
• Representation of certain body parts of a minor child for a sexual purpose;
  
• Promotion or encouragement of pedophilia or prohibited sexual relations with a minor child.

The word “representation” includes photos, videos, drawings, paintings, engravings, texts, audio recordings and sculptures. In other words, any type of image or work can be child pornography. Something can be child pornography even if it doesn’t represent an actual person. For example, a drawing of a fictional or invented child portrayed in a sexual context can be child pornography.

The law prohibits anyone from making, printing, publishing, distributing, transmitting, making available, importing, exporting, selling, possessing, accessing or advertising child pornography.

The representation of a minor child in the context of an explicit (or obvious) sexual activity is child pornography. To determine if something is an obvious sexual activity, one has to ask if a reasonable person would think that it is clearly a sexual activity, given the circumstances. For example, the fondling of sexual organs is clearly a sexual activity. On the other hand, a peck between two adolescents while they wait for the bus is not clearly a sexual activity.

Child pornography includes any representation whose dominant characteristic is the representation, for a sexual purpose, of the sexual organs or anal region of a person under the age of 18. As with representation in the context of explicit sexual activity, not only does this include photos, but also any form of image or work. Furthermore, this representation has to be sexual in nature. To determine if this is the case, one must ask whether a reasonable person would feel that this image is of the type that is likely to sexually stimulate a person. This would not be the case, for example, for a photo published in a medical book or anatomy book.

Furthermore, the photo’s dominant characteristic must be its representation of sexual organs or the anal region. In other words, the representation must focus on these organs or region of the body. For example, let’s say someone takes a picture of baby Joachim surrounded by his toys in the bath, showing off his sparkling eyes, brown curls, and glowing smile. This would not be pornography even if his genitals were visible, since the photo does not focus on the organs.

The prohibition on child pornography also targets texts, audio recordings, videos or any other representation that, in the eyes of a reasonable person, encourages illegal sexual activity with a person under the age of 18. For example, an Internet article would constitute child pornography if it advised sports instructors to have sexual relations with the children they are coaching.

Any person who produces, prints, distributes, publishes, transmits, makes available, sells, imports, exports, advertises, or possesses child pornography for publication is committing an offence that is punishable by a maximum prison sentence of ten years and a mandatory minimum sentence of 90 days. Depending on the seriousness of the offence or in the case of a repeat offence, the mandatory minimum sentence may be up to one year.

A person who possesses or accesses child pornography faces a maximum prison sentence of five years and a mandatory minimum sentence of 14 days. Depending on the seriousness of the offence or in the case of a repeat offence, the mandatory minimum sentence may be forty-five days.

The law prohibits the distribution of child pornography. A person distributes pornography if he sells, imports, exports, or advertises it. Moreover, a person is also committing an offence if he makes child pornography available or transmits it or possesses it for the purpose of making it available or transmitting it.

The following acts are different from one another: making child pornography available, transmitting it, and possessing it for the purpose of making it available or transmitting it.

First of all, making it available means allowing other people to access it. This would be the case, for example, if a person were to post child pornography on an Internet site.

Second of all, transmitting means sending it to someone. This would be the case, for example, if a person were to send child pornography by email or through the mail.

Finally, possessing child pornography for the purpose of making it available or transmitting it means, for example, possessing photos that one wants to make available or transmit. This would be the case, for example, if a person were to indicate in an Internet chatroom that he is ready to exchange pornographic photos of children. At this precise moment, the person has not yet sent any photos and has not made them available. However, the simple fact of having the photos in his possession and intending to transmit them to someone constitutes an offence.

To find out more about possession, see the Infosheet entitled Possession in criminal law.

Yes. As a general rule, a parent can photograph his child even if the child is naked and even if his sexual organs are visible. In order for such a photo to constitute child pornography, the dominant characteristic of the photo would have to be the representation of the child’s sexual organs, with the goal of sexually stimulating someone. This would be the case, for example, if the photograph was a close-up of the sexual organs.

Yes. It is illegal to access child pornography. In other words, it does not make any difference in the eyes of the law if the child pornography is a photo, on paper or on a computer.

No. A book or document that deals with child sexuality is not child pornography if it has an educational, scientific or medical purpose. This would be the case, for example, for a survey on the sexual habits of people under 14 years of age. Moreover, a book, movie or any other form of expression can be used to deal with sexual relations involving people under 18 in an artistic context. For example, a victim of incest can write a book to describe the drama they experienced. Finally, a document connected to the administration of justice, like a court judgment, can also describe sexual relations with a child without constituting child pornography.

In order for a document not to be child pornography (whether it is educational, scientific, medical, artistic or connected to the administration of justice), it cannot create undue risks for people under 18. An undue risk might be created for a person under 18 if the so-called scientific portion of a book, which would otherwise be child pornography, is not significant enough to give the book a legitimate scientific character.

As a general rule, simple possession of child pornography is an offence, even if the person possessing it does not intend to share it with other people. To find out more about possession, see the Infosheet Possession in Criminal Law.

There is, however, an exception to the law. A person who creates child pornography is not committing an offence if he does so alone and does not show it to anyone. For example, imagine that 40-year-old Matthew writes a text that details a fictional sexual relation with a 6-year-old child. Matthew never shows the text to anyone and he keeps it hidden in his safety deposit box at the bank. Under these circumstances, Matthew is not committing an offence.

Yes. It is permitted to take photos or make a video of an explicit sexual activity involving people under 18 under certain conditions:

• The sexual activity is itself legal;
  
• The recordings or photos are produced in private for personal purposes and they are not shown, circulated, or transmitted to other people;
  
• The recordings or photos are produced by the person who has them in his possession or who appears in them;
  
• All of the participants in the sexual activity have agreed to the recording being made or photos being taken.

Yes. It is not necessary for the person to really be under 18 for it to be child pornography. It would be child pornography if the person is presented as being under 18 and is, for example, participating in an explicit sexual activity. For example, a pornographic film showing an actor pretending to be 13 years old and presented as such would be child pornography even if the actor is in fact 18 years old.

No. A person who obtains child prostitution services is committing an offence. It is in fact illegal to obtain sexual services in exchange for money from a person who is known to be under 18. It is also illegal to communicate with anyone for the purpose of obtaining sexual services from a person under 18. Anyone found guilty of child prostitution faces a maximum prison sentence of five years and a minimum prison sentence of six months.

This might be considered an offence, but not necessarily. First of all, living or profiting off money coming from the prostitution of a person under 18 is an offence. For example, 17-year-old Isabelle is a prostitute. She houses and feeds 19-year-old Pauline for free. A real freeloader, Pauline is aware of the source of Isabelle’s income and profits from it despite Isabelle’s protests. Pauline is committing an offence. Furthermore, the fact that a person lives with or is regularly in the company of a prostitute is enough to prove that the person is living off the prostitution, unless there’s evidence to the contrary. In case of conviction, the accused faces a maximum prison sentence of fourteen years and a minimum sentence of two years in prison.

Pauline might even be charged with an offence carrying more serious consequences if, instead of simply profiting from Isabelle’s money, she forces her (by intimidating or threatening her) and helps or encourages her to prostitute herself. In such a case, the minimum prison sentence would be five years.