Offenders convicted of child sexual exploitation material offences: characteristics of offenders and an exploration of judicial censure

Abstract

Research on the discernments of child sexual exploitation material (CSEM), particularly delivered by judicial officers, is limited. Sentencing remarks can disseminate formal messages about the offender’s character while censuring crime. This study aimed to: obtain a deeper understanding on the characteristics of CSEM offenders and explore the censure sentencing judiciary impart. An exploratory content analysis conducted on sentencing remarks of 29 offenders across a 10-year period in Australia found all offenders were male, mostly middle-aged, with diverse employment and education. Most possessed and/or accessed CSEM involving: children under three and the most severe category (sadism/bestiality). Characteristics and censure involved: offender’s motivations and explanations for offending (sub-themes included poor mental health and substance abuse, downplay or denial, and addiction); CSEM offences are not victimless crimes; and disparities in the offender’s public versus private life. This study’s findings are valuable for law, psychology and social work disciplines across Australia and internationally.

Introduction

The use of the Internet to engage in sexual offending has become a global problem, with criminal justice agencies experiencing an increase of child sexual exploitation material (CSEM) cases coming to their attention (Australian Centre to Counter Child Exploitation, ACCCE, 2018; Beech, Elliott, Birgden, & Findlater, 2008; McCarthy, 2010). The Internet offers some level of accessibility and anonymity, encouraging de-individuation, which assists the onset of accessing CSEM (European Union Agency for Law Enforcement Cooperation, 2018; Merdian, Wilson, & Boer, 2009). There can be significant negative effects on the children abused in the production of CSEM; these victims can suffer immediate effects of physical trauma and emotional pain, which can continue far into the future (Leary, 2007). The victims contend with the struggles, across years to come, of the permanent nature of the files circulating on the Internet (Beech et al., 2008).

Literature review

CSEM offenders differ in demographic and psychological characteristics compared with offenders convicted or charged with contact child sexual offences and mixed offences (who engage in both contact and CSEM offences). CSEM offenders appear to be younger and less likely to be a racial minority than contact offenders (Babchishin, Hanson, & Hermann, 2011; McCarthy, 2010; Wolak, Finkelhor, & Mitchell, 2005). They are typically more educated and more likely to have professional employment in contrast to contact and mixed offenders (Lee, Li, Lamade, Schuler, & Prentky, 2012). CSEM offenders also appear to have higher scores on sexual deviance and victim empathy, less emotional identification with children and fewer cognitive distortions than contact offenders (Babchishin et al., 2011; Babchishin, Hanson, & VanZuylen, 2015; Merdian, Curtis, Thakker, Wilson, & Boer, 2013).

Despite the introduction of tougher laws and sentences condemning CSEM, with general deterrence a paramount consideration, it appears that some members of the public may not perceive CSEM as a serious crime (Warner, 2010). Some members of the public might question whether using the Internet to access or distribute CSEM is actually regarded as a ‘serious criminality in a modern and permissive society’ (Warner, 2010, p. 395). Research examining perceptions has found some disjuncture between the law and social attitudes. In one Australian study, Prichard, Spiranovic, Gelb, Watters, and Krone (2015) found that over 90% of participants agreed about the harms of viewing CSEM (e.g. ongoing victim trauma, threatens the innocence of children, encourages further market production). However, when participants were asked ‘whatever harm might occur in the production of child pornography, no further harm is perpetrated just from viewing the material’ (Prichard et al., 2015, p. 7), one in every 10 participants believed there was no further harm. When ‘viewing’ was substituted with ‘distributing’, one in every 15 participants believed there was no further harm (Prichard et al., 2015, p. 7). Prichard et al. suggested that these perspectives align with the perception of CSEM being ethically neutral, disconnected from child abuse.

The messages provided to the public, particularly delivered by authorised spokespersons who sanction and censure crime, must be explored before further examination of public attitudes towards CSEM can be conducted. Little research has focused on the broader discernments and impacts of CSEM delivered by authorised spokespersons. Sentencing remarks are one important tool to analyse as they have the ability to provide insight about the character of the offender (Christie as cited in Daly & Bouhours, 2008) and disseminate formal messages about the wrongfulness of the act and the harmfulness of CSEM to society at large (Daly & Bouhours, 2008; Prichard, Watters, & Spiranovic, 2011). Although denunciation is mainly symbolic in function, it is considered to be a sentencing purpose with one of the most important functions (Mackenzie, 2005). Sentencing remarks can have public outreach if delivered in an open courtroom and published in the media (Daly & Bouhours, 2008). While sentencing remarks are not a panacea and may neither reach the wider audience nor be internalised by the wider audience, they appear to be a valuable tool for educating the public about the wrongs of viewing CSEM and a valuable tool for crime prevention (Hunn, Cockburn, Spiranovic, & Prichard, 2018).

The analysis of court documents offers a unique perspective of the characteristics of CSEM offenders (Tsagaris, Bach, & Cimino, 2017). Tsagaris et al. (2017) reviewed 24 court transcripts and law enforcement reports of CSEM offenders. Through analysing descriptive information, they were able to contribute novel information on the characteristics, profiles and victim preferences of these offenders. Tsagaris et al.’s findings were consistent with the existing research concerning race and ethnicity; however, they found diversity across age, education and occupation. Jung and Stein (2012) used Canadian court transcripts to compare sentencing decisions of contact and CSEM offenders. They found the two groups quite distinct; of known cases, CSEM offenders were more likely to be single, unemployed and older. Jung and Stein (2012) found a sentencing disparity between the two offending groups: non-custodial sentences were favoured for CSEM offenders compared with custodial sentences for contact offenders. In their content analysis across two jurisdictions in Australia, Hunn et al. (2018) analysed 57 sentencing remarks for CSEM cases. The purpose of their study was to explore the messages disseminated by Judges on the wrongs of viewing CSEM. They found that the explanations provided by Judges on the wrongfulness of viewing CSEM aligned with the four overarching themes in the literature around the effects on: the victim; other offenders; the viewer; and society.

The current study is a qualitative analysis of judicial sentencing remarks that attains both a comprehensive picture of the characteristics of CSEM offenders and the censure imparted by judicial officers concerning CSEM offences. While this study allows for a detailed picture of the characteristics of CSEM offenders, it expands on Hunn et al.’s (2018) impressive study, identifying all recurring areas of rejection and reprimand by judicial officers. This study had two aims, to: (a) obtain a deeper understanding on the characteristics of individuals convicted of CSEM offences and (b) explore the censure sentencing judiciary impart to the offender and wider audience. The findings will be a valuable resource for psychologists, legal professionals, law enforcement and social workers across Australia and internationally.

Method

Sample and procedure

Despite sentencing remarks being publicly available documents, the researchers confirmed ethical exemption from their respective universities prior to data collection (Institutional Review Board approval). The sentencing remarks of CSEM cases over a 10-year period (1 January 2007–31 December 2017) in one jurisdiction of Australia were sought. The law database was searched using the catchword ‘child pornography’ due to this exact term being used in the offences. The original sample across the 10-year period was 297 cases. This sample reduced to 140 when the cases were filtered to the lower, intermediate and high courts. In the lower court, matters are heard summarily typically by a magistrate, while in the intermediate court, a judge presides over a trial, and cases are generally heard by a jury (O’Connell & Fletcher, 2020). A superior court in Australia deals with the most serious crimes (such as murder) mostly before a jury (O’Connell & Fletcher, 2020).

Many of these 140 cases were excluded as: (a) the current sentence was not a CSEM offence but appeared due to the offender’s criminal history; (b) the transcript did not involve sentencing but, rather, an appeal or submission of evidence in a CSEM case; (c) the offender was also being sentenced for a contact child sexual offence; or (d) the offender had previously been convicted of a contact child sexual offence. The two latter exclusions were determined due to the evident dissimilarities between the offending groups, as discussed above. The final sample comprised 29 cases each with one offender, across the lower (three cases) and intermediate (26 cases) courts, heard by nine Judges and three Magistrates. The term ‘judicial officers’ has been used in the current paper to encompass both Magistrates and Judges. There were no cases from a superior court. In all cases, except one, the offender was sentenced solely for CSEM offences; in this one case, the offender was also sentenced for a drug offence. The authors adhered to the policies on the law database, including the non-disclosure of the arms of the state.

Sentencing remarks are verbatim transcripts that surround the summation of the context of the offence, mitigating and aggravating factors, and the sentence imposed (Jeffries & Bond, 2013). Aggravating factors can increase the sentence (e.g. the offender has a prior record of a similar conviction), and mitigating factors can reduce the sentence (e.g. a guilty plea).¹ In Australia, the sentencing hearing typically occurs on a different day to the hearing in which the offender was found guilty ‘beyond a reasonable doubt’ or pleaded guilty. When sentencing, judicial officers must consider: relevant sentencing legislation and legal precedent, submissions made by the defence and prosecutor, and relevant sentencing principles. By using sentencing remarks, the use of archival data overcomes problems in other types of data collection, particularly self-report data (Hall & Hall, 2007; Lune & Berg, 2017). This form of archival data is considered to have endured rigorous legal scrutiny, providing a holistic picture that draws from various sources of evidence – for example, offender statements, digital evidence and psychiatric evidence (Chiu, Leclerc, & Townsley, 2011). However, one downfall is that sentencing remarks can be published at the discretion of the presiding judicial officer. In turn, the authors are not suggesting that the current study provides a representative view of either the characteristics of all offenders convicted of CSEM or the censure delivered across all CSEM cases.

Analytic approach

A conventional content analysis was employed, in which the coding of categories was derived inductively and directly from the data (Lune & Berg, 2017). An inductive approach was selected over a deductive approach because of the exploratory nature of the current study. Due to the iterative process involved, the first author immersed herself in the data and read and reread the sentencing remarks. The codes were inductively identified around the key focus of the study, and notes were made systematically throughout the sentencing remarks; the codes were expanded and collapsed where necessary, then transformed into categorical labels. The coding of several sentencing remarks was quality reviewed by the second author. Content analysis of sentencing remarks has been successfully used by several scholars in the past; for example, Daly and Bouhours (2008) conducted a content analysis on sentencing remarks to examine Judges’ moral communication and judicial censure of youths who had sexually offended. Hunn et al. (2018) also used a content analysis on sentencing remarks to examine Judges’ remarks on the wrongfulness of viewing CSEM.

Results

The findings are presented in two parts. First, the quantitative characteristics (basic descriptives) are presented. These include, on the basis of known variables within each case, the offender’s gender, age, education, employment, number and type of sentenced offences, victim gender preference, youngest victim’s age, severity of CSEM, plea, penalty (custodial or non-custodial) and length of custodial sentence. Second, the qualitative findings of the themes pertaining to the censure imparted and offender characteristics are presented.

Case characteristics

The case characteristics concerning the offenders are presented in Table 1. All offenders were male and, on average, 40.61 years old at the time of sentencing (range: 20 years−64 years).² While the offender’s age at the time of the offence was seldom provided, offences had mostly occurred within the two years prior to the sentencing. In 68% of known cases, the offender was employed at the time of the arrest; the fields of employment were varied in nature, ranging from law enforcement and the legal field, right through to hospitality and retail (see Table 1). Of the remaining cases, the offender was unemployed and/or on a pension (23%) or retired or currently studying (9%). In 43% of cases, the offender had not completed high school, 14% had completed high school but had not studied further, and 43% had completed tertiary education.

Table 1.

Case characteristics of sentencing remarks.

Case	Counts	Guilty plea	Custodial sentence & length (months)	Offender characteristicsa (age at sentence, education, occupation and prior criminal record)
1	1 Posses	Yes	Yes (15)	54-year-old, with a doctorate, employed in the legal field, no prior criminal record. Offences involved mostly male victims (pre- and post-pubescent), all categories of severity.b
2	3 Posses	Yes	Yes (72)	35-year-old, drug user, identified himself as homosexual, with a 9th-grade education, employed in the public service, a prior criminal record (non-sexual offence). Offences involved both genders, some infants, all categories of severity.
3	1 Posses 2 Other	Yes	Yes (39)	42-year-old, with a 10th-grade education, employed in law enforcement. No prior criminal record. Personal and relationship difficulties. Offences involved mostly female victims, as young as 2 years old, and pubescent girls; all categories of severity.
4	5 Posses 4 Other	Yes	Yes (66)	52-year-old, with a 11th-grade education, employed in the transport industry. Offences involved both genders mostly pre-pubescent, some as young as 2 years old; all categories of severity.
5	2 Posses	Yes	Yes (12)	45-year-old, described as immature, having relationship deficits, with a prior criminal record (non-sexual offence). Offences involved mostly female victims, some infants, most severe category included cunnilingus.
6	2 Posses 3 Access	Yes	No	30-year-old, with an intellectual handicap, did not complete high school, and unemployed. Offences involved all categories of severity.
7	2 Posses	Yes	No	64-year-old, retired, previously employed in law enforcement, no prior criminal record. Offences involved a preference towards females, some infants, all categories of severity.
8	2 Posses 1 Access	Yes	Yes (27)	38-year-old, physical disabilities and intimacy deficits, with a 10th-grade education, unemployed with disability benefits. No prior criminal record. Offences involved a preference towards females, some infants, and all categories of severity.
9	1 Posses 1 Access	Yes	Yes (24)	32-year-old, poor physical health, tertiary education, unemployed. Offences involved a preference towards females, some infants, all categories of severity.
10	1 Posses 1 Access 1 Other	Yes	No	55-year-old, poor physical health, employed in hospitality. Offences included some infants, all categories of severity.
11	1 Posses 17 Other	No	Yes (85)	27-year-old. Offences involved a preference towards female victims, some infants, all categories of severity.
12	2 Posses 1 Other	Yes	Yes (24)	Married with several children, employed in the public transport sector, with a prior criminal record (non-sexual offence). Offences involved both genders, all categories of severity.
13	1 Posses	Yes	Yes (18)	37-year-old, with a prior criminal record (non-sexual offence). Offences involved all categories of severity.
14	2 Posses	Yes	Yes (36)	Raised in the United Kingdom and came to Australia at a young age, employed in the trade industry. Offences involved all categories of severity.
15	5 Posses	Yes	Yes (54)	39-year-old, employed and married, unremarkable upbringing with supportive parents. A prior CSEM conviction. Offences involved a preference towards female victims, all categories of severity.
16	1 Posses 1 Other	Yes	No	46-year-old, separated from wife. CSEM involved a preference towards female victims, all categories of severity.
17	2 Posses 1 Access 2 Other	No	Yes (39)	32-year-old, teacher, with a postgraduate degree. No prior criminal record. Offences involved a preference towards male victims, all categories of severity.
18	2 Other	Yes	No	28-year-old, physical disability, and a victim of sexual assault. No prior criminal record. Offences involved two female victims (8 and 11 years old).
19	1 Posses	Yes	No	37-year-old, identified as homosexual, poor physical health, a prior CSEM conviction and other (non-sexual) conviction. Gender and age of victims unknown, all categories of severity.
20	1 Posses 2 Other	Yes	Unknown	44-year-old, unemployed, has a partner. No prior criminal record. Offences involved a preference towards female victims, all categories of severity.
21	1 Posses 1 Access	Yes	No	Married, employed in the public transport sector. No prior criminal record. Most severe category of CSEM involved fondling/touching.
22	3 Posses 1 Access	Yes	Yes (27)	56-year-old, with a 10th-grade education, unemployed, separated from wife. No prior criminal record. Offences involved a preference towards female victims, some 2-year-olds, most severe category included penetration.
23	1 Posses 4 Other	Yes	Yes (60)	29-year-old, completed high school, employed in retail. No prior criminal record; however, dated teenage girls while engaged. Offences involved a preference towards female victims, some 3-year-olds, all categories of severity.
24	1 Posses 1 Access	Yes	Unknown	Employed in retail. Offences involved children aged 7 to 16 years, and all categories of severity.
25	1 Posses 1 Access	Yes	Yes (27)	35-year-old, Chinese, strict upbringing, with postgraduate degrees, employed in the information technology field. Offences included some infants, and all categories of severity.
26	1 Posses 1 Access	Yes	Yes (18)	36-year-old, Filipino, bisexual orientation, with tertiary education, and a prior CSEM conviction. Offences involved a preference towards female victims, some 4-year-olds, all categories of severity.
27	1 Posses 1 Access	Yes	Yes (18)	35-year-old, Malaysian, employed, sexually abused as a child, and has a partner. Offences involved some infants, all categories of severity.
28	C Other	Yes	No	56-year-old, educator, with a postgraduate degree. The victim was an assumed identity of undercover police officer. No prior criminal record.
29	1 Posses 1 Access	Yes	Unknown	20-year-old, immature, 12th-grade education, studying at university. No prior criminal record. Offences involved a preference towards female victims, all categories of severity.

Note: Possess = possession. CSEM = child sexual exploitation material.

^a All offenders were male. The court transcripts did not identify offender race. However, offender ethnicity was provided in the sentencing remarks of three cases, as noted in the table.

^b ‘All categories of severity’ includes sadism, bestiality, or torture of a child.

In 93% of cases the offender pleaded guilty (see Table 1). Offenders were typically sentenced for several CSEM offences (M = 3.31 counts). In most cases (93%), the offender had at least one offence concerning the possession of CSEM. Few offenders (10%) had a previous CSEM conviction or other convictions (17%). Most offenders (62%) received a custodial sentence. In three cases, the sentence was unknown after the case was adjourned to assess the offender’s suitability for a non-custodial sentence. Of cases that involved a custodial sentence, the average sentence imposed was 36.72 months (range: 12 months−85 months).

On average, offenders had possessed and/or accessed roughly 16,936 files (still images and videos) ranging up to 160,000 files. Due to the thousands of files that most offenders had possessed and/or accessed, few cases suggested a definitive number of victims per case. Of the cases that specified the age range of the children depicted, all included pre-pubescent victims, and 76% of these cases involved children aged 3 years or less (some as young as 6 months old). As for victim gender, while some cases indicated that the offender had a particular orientation, both genders were often apparent due to the number of files. Of known severity in the files, 96% of cases included penetration of children or oral sex, and 88% of cases included the most severe category of CSEM (sadism, torture or bestiality). However, the number of files involving penetration and the most severe category of CSEM per case could not be determined due to the sheer number of files.

Themes found in sentencing remarks

The themes relating to the offender characteristics and censure imparted to the offender and wider audience are presented later in one section. The authors amalgamated the results because during the coding phase it became evident that judicial officers would reveal information that lent to offender characteristics while concomitantly imparting messages to the offender and wider audience. For example, information about the offender minimising the offence (offender characteristics) would be met with rejection by the judicial officer (censure). The analysis identified three major themes: (a) offender’s motivations and explanations for offending, (b) that CSEM offences are not victimless crimes, and (c) offender’s public versus private life. These themes are discussed later along with quotes taken from the sentencing remarks that best capture and articulate these themes (Table 2).

Table 2.

Selected examples of themes in sentencing remarks.

Theme 1: Offender’s motivations and explanations for offending

Sub-theme: Poor mental health and substance abuse

‘The [psychiatrist’s] report outlines the accused’s professional and personal history including a lengthy history of depression. . . . The only sensible conclusion that can be drawn is that the accused, whilst he did suffer from the conditions referred to in the psychiatrist’s report, nonetheless well knew what he was doing and that it was manifestly unlawful’. (Case 1)

‘The offender said he started viewing adult pornography when he suspected his wife of having other relationships or another relationship. . . . Over a number of years, that eventually descended into accessing child pornography. . . . He said that was a time of intense loneliness for him. . . . With that background, it is perhaps bizarre that the offender became involved in accessing child pornography, indeed to the extent of trading such images. . . . I do not consider on the evidence available to me that the offender’s mental and emotional condition was such as to reduce the moral culpability of the offender’. (Case 3) ‘Mr [Offender] attempted to justify his conduct by saying that these offences were all committed at a time when he was working long hours and not seeing much of his partner whose shifts did not coincide with his. He also said that work was stressful. The connection between having a sexual interest in young girls and being stressed at work and not seeing much of your partner is not one which is immediately obvious to me’. (Case 20)

‘He [Offender] claimed he developed drug-induced psychotic symptoms of a delusional nature from his daily use of methamphetamine. . . . He explained to the psychologist that his possession of child pornography was in the context of this belief “that if he could understand the pornography, when would be able to change the world and cease such activity occurring”. . . . Indeed what he seemed to be doing in his drug-induced psychotic state was accessing it himself in order to further his delusional purpose. . . . There is no evidence challenging it’. (Case 13)

Sub- theme: Downplay or denial

‘I reject that explanation [arriving at the web links unsolicited] as to how it came to be that the offender possessed more than 35,000 separate items of child pornography. It is so inherently unbelievable as to be fanciful. A person does not store material which he does not want and which disturbs him. In any case it fails to explain how the offender came to possess the many DVDs and CD. . . . ’ (Case 2)

‘ . . . the Court would not accept that he was being entirely frank: that is that he claimed that in relation to accessing, possessing and viewing the material from time to time, he did not do so as a result of any sexual interest, rather, some esoteric interest in collecting – not based on sexual interest – as one might find in persons who collect teacups or bottle openers. . . . Clearly, offences of this nature are committed by persons who in fact do have a sexual interest in the material’. (Case 9)

‘The Crown referred to the fact that the offender made up a false story that an acquaintance of his, Mr [Name], was responsible for the downloading of the images and that Mr [Name] had made a genuine confession to the offender. . . . The jury entirely rejected the suggestion that Mr [Name] was responsible, a view with which I wholeheartedly agree’. (Case 17)

‘ . . . he [Offender] claimed that he only began looking at child pornography out of interest “to see what the hype is about”. . . . He tried to downplay the seriousness of the offences. . . . It scarcely explains why he went on a daily basis to access such material, view it and store it. . . . He claims that he was not sexually attracted to children and he did not gain any sexual satisfaction from viewing the images. Claims I have a great deal of difficulty giving any credence to whatsoever. . . . ’ (Case 22)

‘He denied an attraction to children and stated that his collection of images were a “morbid curiosity” and was not using the images for sexual gratification. . . . I accept the Crown’s contention that the fact that he had made the request was inconsistent with the kind of idle curiosity, but rather, more consistent with actively seeking out the material’. (Case 26)

Sub- theme: Addiction

‘It has been suggested that similarities can be drawn with gambling and drinking, and both of those can lead to addictions. But I would prefer to draw the analogy with drug addiction. The authorities make it clear that where a person voluntarily commences to use drugs then ensuing addiction can have little mitigating effect. So it is with an addiction to child pornography, after all, no one could begin to commit offences of this kind thinking that what they were doing was not illegal’. (Case 15)

‘But some people in the community find that they become addicted to illegal possession of such material. That does not excuse them accessing it. . . . ’ (Case 19)

Theme 2: Child sexual exploitation material offences are not victimless crimes

‘What I have said about the evils of child pornography is to a large extent merely stating the obvious, but it is important to keep stating the obvious in order to emphasise to others in the community who may be tempted to see the possession of child pornography as some minor offence, just how serious the exploitation of young children in this way really is”. (Case 2)

‘Primarily of course, and most directly, there is the harm involved in the children who are depicted in the videos and images. In order for someone to photograph or video a child being sexually abused, a child has to be sexually abused. How is it that the offender could view this material and not have feelings of empathy toward the innocent children involved is difficult to understand’. (Case 14)

‘There can be no suggestion whatsoever that child abuse material or child pornography is in some way some form of victimless crime. Every image shows a victim and the circumstances in which children are placed in that position one can image defy description’. (Case 22)

‘The victims will probably never be identified. The circumstances in which they came to be exploited will probably remain unknown. The psychological impacts will probably remain untreated. . . . In some respects, these crimes are more abhorrent than crimes committed against identified victims who, at least, have the satisfaction of knowing that offenders have been prosecuted’. (Case 7)

‘Indeed, for the victims, the abuse essentially continues so long as the images exist, and the damage continues from the point at which they become aware – in relation to children – of the significance of conduct they have taken part in. Such damage and its necessary effects can pursue them for the remainder of their lives’. (Case 9)

‘ . . . they [child victims] have to live with the fact that their images may be available to strangers for decades and that they will never be able to control the dissemination of the objectionable images’. (Case 17)

‘I made the point myself without having to cite authority that every time one has to cast one’s eye upon an image or a video, not only are you seeing the suffering of a victim, but what strikes me most particularly is what you do not see. What has happened beforehand to bring the child to the position where it is brutalised and/or exploited in a way in which the images reflect and what happens to the child after the event?’ (Case 29)

‘To see the pale death of innocence and trust in the eyes of so many young children is to bemoan the capacity for some members of the human race to descend into the dark and depraved side of the human condition’. (Case 1)

‘The callousness and inhumanity of a person who could get pleasure out of viewing such images is beyond comprehension’. (Case 2)

‘Part of the problem with downloading child pornography is that a market is created. Well, that is even more so the case when the person who produces the pornography can make money out of it by selling it to people such as Mr [Offender]. The evil person then has the incentive to abuse more and more children so that more and more child pornography can be produced and more and more money can be made from people like Mr [Offender]’. (Case 15)

‘Many times Courts have explained the reasons that offences such as the ones I am dealing with today are serious. The most obvious reason, but it is worth repeating despite its obviousness, is that by creating a demand for such images and videos, evil people will satisfy that demand, and every time they do, a child is harmed’. (Case 24)

‘What people like the offender do is create a demand for child pornography, a demand which is satisfied by evil people who abuse children simply so that they can satisfy that demand’. (Case 27)

Theme 3: Offender’s public versus private life

‘But it does seem to me that he presents as someone with at least two sides to his personality, the public persona and the private persona which very few people saw’. (Case 3)

‘Unfortunately, as is the case with many offenders who commit offences of this type, the offender has a secret character, which was not and still is not apparent to his friends, acquaintances and family’. (Case 17)

‘There is abundant evidence that the offender appears to be a person of excellent character. As far as his friends, acquaintances and family are concerned, he is a person of impeccable character. . . . Because “anonymous” offences of this type are not infrequently committed by persons of otherwise apparent good character, the Court may attach lesser weight to good character’. (Case 17)

‘I have earlier referred to the offender’s otherwise prior good character. That is a relevant matter to take into account in mitigation but in a case such as this it is of reduced significance. The reason for that is that offences such as these are serious and they are often committed by persons of good character’. (Case 4)

‘The offender is entitled to rely upon his good character, although good character is of less significance in relation to offences of this type as such offences are often committed by persons of prior good character. . . . ’ (Case 7)

Offender’s motivations and explanations for offending

The judicial officers remarked on the motivations and explanations that they had received about the offender’s behaviour. These motivations and explanations often stemmed from reports made by the psychiatrist or psychologist who had been in contact with the offender or the accounts provided by the defence team during an earlier hearing. Three sub-themes emerged: (a) poor mental health and substance abuse, (b) downplay or denial, and (c) addiction.

Poor mental health and substance abuse

It was evident that several offenders (n = 10) were suffering from – or had previously suffered from – poor mental health and/or substance abuse. Most of these cases concerned depression and/or alcohol abuse. While some of these offenders had suggested to the psychiatrist or psychologist that they had offended out of what appeared to be a point of ‘loneliness’ in their life (e.g. during a marriage breakdown), the judicial officers did not find it sufficient to reduce their moral culpability in the commission of the offence. Table 2 gives an illustration of censure made (Cases 1, 3 and 20). In only one case (Case 13) was the offender’s mental health considered by the judicial officer to be a mitigating factor. In this case, the offender had suffered from a drug-induced psychotic illness during crime commission.

Downplay or denial

This sub-theme was the most recurring in the offender’s motivations and explanations for offending. It appeared that many offenders (n = 12) tried to downplay and minimise their offending despite the high rate of guilty pleas. Several offenders suggested to the psychiatrist, psychologist or defence team that they were not sexually attracted to children but, rather, had attained the CSEM unsolicited. For example, the offender clicked on one web link that led him to other web links, which led to the CSEM, or the suggestion that someone else had downloaded the material. The unsolicited arrival to the material was met with rejection and reprimand by the judicial officers. Table 2 provides three examples (Cases 2, 9 and 17). Other offenders suggested that they had accessed the CSEM out of idle curiosity or due to a supposed interest in merely the act of collecting the material, denying a sexual attraction towards children. Again, this explanation was rejected, as exemplified in two examples (Cases 22 and 26). Across instances where offenders downplayed or denied the offences, judicial officers admonished the offenders for showing limited insight into the seriousness of the offence and limited empathy for the victim. They suggested that the offenders, rather than understand the gravity of the offence, appeared to be consumed by their fears of personal safety in prison – if a custodial sentence were to be handed down.

Addiction

Some offenders (n = 7) had frankly acknowledged that they were sexually attracted to children and had become addicted to using the Internet to access CSEM. Links about CSEM addiction was often drawn in the sentencing remarks to other addictions, such as drug use. While in some cases the judicial officers acknowledged the offender’s honesty in being sexually attracted to children, they highlighted that the offender’s addiction to the material did not vindicate their actions as one chooses to engage in such behaviour before addiction ensues. Two examples are provided in Table 2.

Child sexual exploitation material offences are not victimless crimes

Another prominent theme across the sentencing remarks was that CSEM offences are not victimless crimes (n = 22). Judicial officers made a conscious effort to make this point, regardless of whether the offender tried to minimise their offending. They highlighted the magnitude of harm done to the children during the production of the exploitation material. Three examples are provided in Table 2 (Cases 2, 14 and 22). Judicial officers also highlighted that the impacts on the children depicted in the CSEM stem further than the sexually abusive incident – these children often endure long-term psychological suffering from the abuse. Moreover, these children often grow up living with the knowledge that their abusive experiences are being circulated on the Internet. Table 2 provides four examples concerning the additional impacts (Cases 7, 9, 17 and 29).

When addressing the physical and psychological harm done to the child, the judicial officers admonished the offenders about the depraved nature of the offence and for the offender’s inhumanity for being unable to see the exploitation and sordid abuse of the children involved. Two examples of the admonishments are evident in Table 2 (Cases 1 and 2). In addition to the significant physical and psychological harms that victims endure, the judicial officers also remarked on the actions of the offender as having a role on the CSEM industry. It was suggested that individuals who commit these crimes do not play a passive role; rather, they are furthering the trade of CSEM, creating a greater demand for children to be sexually abused (see three examples in Table 2: 15, 24 and 27).

Offender’s public versus private life

It was evident throughout the sentencing remarks that many offenders (n = 9) had been living a double persona: the offender’s public life differed greatly to their private life. It was suggested that in their public life, they appeared to act in very socially desirable ways and were perceived as well-esteemed individuals and hard-working by friends and colleagues. The judicial officers remarked on the offender’s occupation (with several offenders having light-blue- or white-collar jobs), along with their family, and references of character, with very few offenders having a criminal history. It was suggested these offenders had been living an unsuspecting parallel private life, as a secret character, involved in a depraved fantasy. Two examples concerning the offender’s secret character are provided in Table 2 (Cases 3 and 17). Despite many of the offenders being considered as having prior good character, judicial officers remarked that countless people who commit CSEM offences are also of prior good character. Due to the regularity of those committing CSEM offences as being of prior good character, as well as the seriousness of the offence, the judicial officers highlighted that prior good character for these offences was of less significance. Three examples are provided in Table 2 (Cases 17, 4 and 7).

Discussion

The current study had two aims, to: (a) obtain a deeper understanding on the characteristics of individuals convicted of CSEM offences and (b) explore the censure sentencing judiciary impart to the offender and wider audience. Despite the notable research to date, this study is the first to offer a comprehensive picture of the characteristics of CSEM offenders and the censure imparted by judicial officers concerning CSEM offences. The authors extended the literature through exploring censure broadly, identifying all recurring areas of rejection and reprimand by authorised spokespersons who sanction and censure crime. Understanding the messages provided to the public by authorised spokespersons who sanction and censure crime is important, given that CSEM may not be perceived as a serious crime amongst some members of the public (Warner, 2010). The findings, implications and limitations of the study, along with ideas for prevention, treatment and future research, are discussed later.

All offenders in the current study were male. While the authors are mindful that the age of offenders at the time of sentencing was reported (rather than at the time of crime commission) the age appeared consistent with Babchishin et al.’s (2011) meta-analysis along with previous findings that explored court transcripts (e.g. Jung & Stein, 2012; Tsagaris et al., 2017). In line with Tsagaris et al. (2017), the current study also found diversity across occupation and education. Interestingly, while most offenders in the current study were employed and had completed high school, the rate of unemployment and incomplete schooling was far greater than that in previous research (e.g. Babchishin et al., 2011). While this finding might suggest a change in demographics of CSEM offenders, it might simply be attributable to the different samples, with Babchishin et al. (2011) sample including self-report, convicted, arrested and/or charged offenders.

The finding that offenders had been sentenced, on average, to multiple counts, predominantly counts of possession, was similar to the finding of Jung and Stein (2012). Further consistent with Jung and Stein (2012), who found that 92% of offenders pleaded guilty, and 72% of offenders received a custodial sentence, the current study found that 93% of offenders pleaded guilty, and 62% received a custodial sentence. Few offenders had a criminal history; which is consistent with previous research (e.g. Babchishin et al., 2011; McCarthy, 2010).

Most alarming was the type of abuse depicted in the CSEM: 96% of cases of known severity involved files depicting penetration of a child (including oral sex), and 88% of cases involved the most severe abuse (i.e. sadism, torture or bestiality). Contrastingly, Wolak et al. (2005) found that about 80% of arrested offenders had files concerning penetration (including oral sex) with only 21% of cases involving the most severe abuse. One reason for the current finding may be due to sampling, with the study involving convicted offenders. However, in Jung and Stein’s (2012) study of sentenced offenders, only 60% of cases involved gross assault and/or sadism. A second reason for this finding might simply be due to the production and dissemination of CSEM becoming more violent (European Commission, 2015; Kirby, 2018). It is important for future research to identify the reasons behind the increased severity of CSEM. Outcomes of such research could inform treatment and prevention initiatives.

The finding on victim gender preferences was consistent with that of previous research, which has found that most offenders who perpetrate CSEM offences view material involving male and female children (e.g. Webb, Craissati, & Keen, 2007). Alarmingly, almost 80% of known cases involved some files involving infants and toddlers (aged 3 years or less). This is in contrast to previous research, which has found that only a minority of cases involve infants and toddlers (Wolak et al., 2005). For example, Wolak et al. (2005) found that about 19% of cases had children aged 3 years or less. One reason for the current finding may be that offenders in the sample had greater paedophilic arousal (Seto, Cantor, & Blanchard, 2006). However, it has been suggested that victims of CSEM are becoming younger (European Commission, 2015; Kirby, 2018).

The thematic analysis identified three major themes: (a) offender’s motivations and explanations for offending, (b) that CSEM offences are not victimless crimes, and (c) offender’s public versus private life. Three sub-themes emerged for the offender’s motivations and explanations. The first sub-theme – poor mental health and substance abuse – predominantly surrounded offenders who tried to explain their offending out of a point of depression and ‘loneliness’, having turned to alcohol. The judicial officers appeared to impart that while the offender may have been depressed, it did not reduce the moral culpability in crime commission, attributing full responsibility. Interestingly, none of the offenders in this group, except for one, was identified in the ‘living a double life’ theme. This suggests that the motivations for CSEM may vary across offender characteristics (e.g. education, employment), which requires further research for informed practice.

Downplay and denial was the most significant sub-theme despite many offenders having pleaded guilty. This finding is consistent with Winder and Gough (2010) who found the dominant theme of ‘self-distancing’ in their interviews with offenders who used CSEM: offenders downplayed their offences and minimised accountability. One predominant way offenders tried to minimise accountability was by suggesting they had attained the CSEM unsolicited. This finding was consistent with Seto, Reeves, and Jung (2010) who found that a sizeable proportion of individuals convicted of CSEM claimed accidental access (clinical sample: 32%; police sample: 40%). Some offenders in the current study suggested they had accessed CSEM out of idle curiosity or due to an interest in merely the act of collecting. This finding is similar to that of Seto et al. (2010) who found that CSEM offenders claimed curiosity (clinical sample: 27%; police sample: 40%) or saw CSEM collection as a hobby (6% both samples).

Relevant sentencing legislation and legal precedent were cited throughout the sentencing remarks, along with reference to the relevant sentencing principles. Von Hirsch (1993) suggested that while penal sanctions may bring compliance, the offender’s moral judgement is not addressed through a penal sanction alone. In line with Daly and Bouhours (2008), the censure that accompanied the sentence appeared to convey disapproval of the offence to the defendant and wider audience; offenders were admonished for downplaying their actions and showing limited empathy for the victim and insight into the offence. However, the authors believe that decisions on the extent of censure to deliver and the types of messages detailed within the censure will become an increasingly difficult task for judicial officers; as technology continues to enhance, so will the avenues of accessing and possessing CSEM, with some ways possibly being more aggravating than others. Therefore, the judiciary will need to be kept updated of such advances to inform sentencing decisions along with the censure that is delivered.

For the sub-theme of addiction, some offenders admitted their sexual attraction towards children and their addiction to CSEM, consistent with prior research (e.g. Seto et al., 2010). These offenders were still reprimanded for their crimes; the judicial officers made it clear that to voluntarily commence an illegal activity, one must first choose to take part in the activity, indicating responsibility. Overall, these different sub-groups of justifications that offenders offered highlights the need for tailored treatment. As Wortley and Smallbone (2012) suggest, interventions should specifically target the offender’s original motivations for using CSEM because criminogenic needs and risk of recidivism are likely to be diverse across CSEM offenders.

A second theme to emerge was that CSEM offences are not victimless crimes. It appeared that most offenders in the current study lacked empathy towards the victims depicted in the CSEM. Based on the literature, lack of empathy displayed is likely related to the offenders’ cognitive distortions; it is well established that cognitive distortions are related to victim empathy deficits (Webster & Beech, 2000). Even in cases where the offender displayed some level of empathy and did not minimise the offending, the message of CSEM offences not being victimless crimes was still emphasised, imparting the message to the wider community, particularly to those who may be tempted to take part in the crime. With prior research noting a disjunction between the law and social attitudes of CSEM (Prichard et al., 2015), the consistent delivery of this message across cases in the current study is a positive step towards addressing social attitudes.

The delivery of censure concerning the non-victimless nature of CSEM offences also has implications for victims. As sentencing principles such as parsimony (imposing the least severe sentence to achieve the purpose of punishment) and imprisonment as the last resort need to be considered when sentencing (Australian Law Reform Commission, 2018), victims may hold some ambivalence when they perceive sentences to be too lenient. In line with Daly and Bouhours (2008), the delivery of censure that accompanies the sentence may offer some redress to the victims by acknowledging the suffering that was caused by someone else.

The judicial officers made a concerted effort to highlight the additional psychological impacts that victims of CSEM endure – in particular, the victim growing up with the knowledge that their abuse is a permanent record, circulating the Internet. Such messages on victimisation imparted by the judiciary are consistent with the literature that has reported the experiences of victims involved in CSEM (Leary, 2007). The authors suggest that the acknowledgement of the potential short- and long-term impacts on victims should be a consistent message delivered by judicial officers across all CSEM cases. Such messages disseminated by the judiciary could also be adapted into public health approaches that prevent child sexual abuse, such as the ‘Stop it Now!’ campaign. These messages would include an additional voice throughout the education and prevention advocacy, particularly on the topic of the non-victimless nature of CSEM.

The final theme was offenders living a double life. As mentioned above, offenders in the study were a diverse group in terms of age, occupation and education. However, of the individuals who appeared to be well esteemed in their community with a respected profession, it was suggested that these individuals were living a double life. The literature suggests that some individuals who perpetrate contact child sexual offences can live double lives through the development of offending skills, becoming an expert in their execution and avoiding detection for many years (Bourke, Ward, & Rose, 2012). The same connotation for living a double life was not drawn for offenders in the current study. Instead, judicial officers suggested that these offenders managed to live a double life due to the ease and anonymity of the Internet. This message is consistent with Wortley and Smallbone’s (2006) argument on the influence of the situational approach: the Internet offers a unique criminological environment in which isolation, anonymity and secrecy are key components, rather than pathological motivations. One prevention strategy could amalgamate the situational approach of ‘stop pages’ (which provide warning messages like the Child Sexual Abuse Anti-Distribution Filter used in Norway) with the messages disseminated by the judiciary (which suggest that one’s prior good character is of less significance when sentencing). In addition to this method challenging the offender’s sense of anonymity (Wortley & Smallbone, 2012), it could also challenge the offender’s beliefs (particularly esteemed individuals) that they are distinct from other CSEM offenders.

Limitations and future research

Although this research provides valuable insight into the characteristics of CSEM offenders and explores the censure imparted by judicial officers, several limitations should be noted. First, this study did not compare the characteristics of CSEM offenders with those of contact or mixed offenders. However, the aim was not a comparison but, rather, an exploratory study. As this study has provided a solid starting point, future research could qualitatively explore the similarities and dissimilarities in offender characteristics and censure across these three offending groups. Second, the findings cannot be generalised as the sentencing remarks in the current jurisdiction are made public at the discretion of each individual judicial officer (possibly not representing the characteristics and censure of all CSEM offenders in the current jurisdiction). One idea for future research would be to explore the judicial censure in other jurisdictions and countries to see whether similarities arise in offender characteristics and the messages imparted by judicial officers, despite differing laws. The cross-pollination of censure across countries could be used to inform prevention initiatives due to the borderless nature of the Internet. A third limitation was the presence of missing data. However, it is important to note that personal information is purposefully limited in sentencing remarks to avoid identity theft. Further, this missing information did not impinge on the qualitative methods used in the current study.

Conclusion

Through conducting a qualitative analysis of sentencing remarks, the current study contributed to the research in two distinct ways. First, it provided detailed information on the characteristics of offenders convicted of CSEM offences. Second, it identified all recurring areas of rejection and reprimand by judicial officers, providing insight to offenders and the wider society about the virtual immorality of CSEM. It was alarming to find that most offenders had possessed and/or accessed the most severe category of CSEM. Also, most offenders had accessed files involving victims under the age of three. Through the qualitative analysis, first, the authors identified the offender’s motivations and explanations and how the judiciary responded to the offender and wider community. Second, the limited insight that perpetrators had towards victims was identified, and how judicial officers repeatedly imparted that these are not victimless crimes, highlighting the additional impacts these victims endure. Finally, the disparity in the offender’s public versus private life was discussed and how judicial officers communicated that prior good character is not rare for such offending and is therefore of less significance. Suggestions for treatment and prevention as well as future research have been provided, indicating the potential for cross-fertilisation of knowledge across mental health practitioners, legal professionals, law enforcement and social workers both across Australia and internationally.

Ethical standards

Declaration of conflicts of interest

Larissa S. Christensen has declared no conflicts of interest

George S. Tsagaris has declared no conflicts of interest

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.