CROSSING THE LINE INTO CHILD PORN

Two scales-not unlike the Richter scale for earthquakes-attempt to classify the types of depictions of children and underage teens from “inappropriateness” to outright sexual abuse. These are the COPINE and SAP scales.

The COPINE Scale

In Max Taylor’s article for the Police Journal, he writes that the purpose of the COPINE scale is “to emphasize the potential sexual qualities of a whole range of kinds of photographs (and other material as well) not all of which may meet obscenity criteria.”

This scale has 10 categories, one to 10, with each category progressively getting worse in terms of the criminal component of the images or videos. Here is a sampling of the categories:

• Indicative. “Pictures of children playing in normal settings, in which the context or organization of pictures by the collector indicates inappropriateness.”
• Erotica. “Surreptitiously taken photographs of children in play areas or other safe environments showing either underwear or varying degrees of nakedness.”
• Posing. “Deliberately posed pictures of children fully clothed, partially clothed or naked.”
• Explicit erotic posing. “Pictures emphasizing genital areas, where the child is either naked, partially clothed or fully clothed.”
• Assault. “Pictures of children being subject to a sexual assault, involving digital touching, involving an adult.”

Note that in New York v. Ferber, as discussed earlier, many kinds of depictions of children and underage teens do not have to be legally “obscene” before possession or distribution can be criminalized as child pornography offenses. In fact, in the words of the U.S. Department of Justice, “the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity.”

In other words, the threshold for criminal liability is low, and in some cases involving nudity but no sexual activity, the government may still charge you with a child pornography offense.

The SAP Scale

The SAP scale is named after the Sentencing Advisory Panel in the UK. This scale attempts to assign grades to the different types of child pornography:

1. Nudity or erotic posing with no sexual activity

2. Sexual activity between children, or solo masturbation by a child

3. Non-penetrative sexual activity between adults and children

4. Penetrative sexual activity between adults and children

5. Sadism or bestiality, i.e., sexual activity involving torture or pain and/or animals

U.S. Federal Law

No matter what scale you use, whether COPINE or SAP or something else, the potential punishment for child pornography gets progressively worse as you go down the scale. Under U.S. federal law, a conviction may result in worse consequences if (1) the child pornography was violent, sadistic, or masochistic in nature; (2) the child or underage teen was sexually abused; or (3) the offender has a prior record.