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In last month's analysis of the Canadian Godbout case, in which Canadian child pornography law was ruled unconstitutionally overbroad, we mentioned in passing that one of the parties that had advocated for the broadest criminalization of fiction by Canadian courts was the child protection group ECPAT International, which was formed by a coalition of religious and secular groups in 1990.
Its involvement in the case comes as no surprise. ECPAT’s influence runs deep throughout the child protection sector, not just in Canada but around the world. For example, its United States chapter was a key supporter of the Internet censorship law, FOSTA, that Prostasia Foundation is helping to overturn, and of the EARN IT Act, which we are fighting now.
ECPAT has also tightly interwoven itself throughout international institutions such as INTERPOL, the International Telecommunications Union (ITU), and the Virtual Global Taskforce (a network of national law enforcement agencies). It has assumed the role of assessing the compliance of countries with their obligations under the Convention on the Rights of the Child, and reporting to the United Nations Committee on the Rights of the Child. It also has a cooperative arrangement with INHOPE, which is the international association of national CSAM reporting hotlines.
These connections have provided ECPAT with outsized influence over the development of international responses to child sexual abuse and trafficking. Although ECPAT has many well-meaning staff and has achieved some positive outcomes for children, its work is too often characterized by a lack of awareness of the side effects and negative consequences of its hardline positions.
Let’s quickly map out how ECPAT has strategically used its influence to promote the criminalization of art and fiction that depicts child sexuality or child sexual abuse, and more importantly, to suggest why it has done this.
A timeline of ECPAT's interventions
In 2008, at the third World Congress against Commercial Sexual Exploitation of Children in Rio, co-organized by ECPAT, UNICEF, and Child Rights Connect (an association of child rights groups working at the United Nations), ECPAT led a call to “Criminalize the intentional production, distribution, receipt and possession of child pornography, including virtual images and the sexually exploitative representation of children.”
In 2012, ECPAT released a document that attempted to provide a policy justification for “good practice laws” that would incorporate such a ban on virtual images. While acknowledging that such images don't cause any direct harm to children, the document attempts to make a case that virtual images “contribute to a culture that sexualises children and normalises their sexual abuse and exploitation,” despite acknowledging “an unfortunate dearth of research on this question.”
By 2016, ECPAT and a United Nations Interagency Working Group had developed the Luxembourg Guidelines, which incorporated its own recommendations about the criminalization of virtual images, and cited its own “good practice laws” document as the only evidence in support of its claims that these are harmful.
In 2019, ECPAT led a consultation on a set of implementation guidelines for the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, which were ultimately passed under the auspices of the UN Committee on the Rights of the Child. In its Explanatory Memorandum, ECPAT once again cited its own Luxembourg Guidelines in support of a recommendation that “States parties [should] include in their legal provisions regarding child sexual abuse material (child pornography) representations of non-existing children or of persons appearing to be children.”
Finally in February 2020, a coalition of freedom of expression organizations led by child Prostasia Foundation petitioned ECPAT partner INHOPE to instruct its members not to add virtual images to the image hash lists that its members maintain, nor to report those images to authorities unless required by the law where the hotline operates. INHOPE declined to offer this commitment.
Criminalizing thought and expression
As can be seen, ECPAT’s agenda for the criminalization of art and fiction is of long standing, and amounts to a deliberate and methodical attempt to establish unquestionable new global norms that shift emphasis away from the direct harm that child abuse images cause to children, and towards a looser category of theoretical harm that allows for the criminalization of thought and expression.
ECPAT’s criminalization agenda also extends to sex work. The Luxembourg Guidelines, apart from popularizing new terminology for “child pornography,” also also effected changes to the recommended terminology for talking about sex work. In echoes of Orwell’s “newspeak,” these changes erase the agency of minors who resort to sex work, by make it impossible to express that agency in words. As such, the changes de-emphasize the underlying social causes of abuse by centering the role of sex work buyers, and fuel a criminalization agenda rather than a prevention agenda. While clients of underage sex workers are indeed culpable as abusers, focusing all our attention on their role is harmful because it means neglecting the problems that lead young people to sex work in the first place.
By calling out the harms of its policy positions on art, fiction, and sex work, Prostasia Foundation’s advocacy represents a challenge to the dominance of ECPAT and its allies in the international child protection community. And that challenge hasn’t gone unmet by ECPAT.
United Nations rules disregarded
Since 2018, Prostasia Foundation has been a member in good standing of the Dynamic Coalition on Child Online Safety, under the auspices of the United Nations Internet Governance Forum (IGF), which (as you might guess) is managed by ECPAT. In September 2019, we called ECPAT out for organizing a supposedly-official gathering of the Dynamic Coalition on Child Online Safety at the 2019 IGF Annual Meeting, without seeking any input on the meeting agenda from Dynamic Coalition members on its official mailing list.
Immediately after our call-out, we were silently dropped from that mailing list (ECPAT claims that this was due to a technical malfunction), and our membership was not reinstated until October this year, after we officially complained to the United Nations Secretariat—and after the Dynamic Coalition’s session at the 2020 IGF Annual Meeting had also been arranged without our input.
The harms of a sex-negative approach
Why does ECPAT propagate policy approaches that de-emphasize the prevention of sexual abuse, in favor of the broadest possible criminalization of even non-abusive sexual behaviors and expressions? Essentially this stems from its framing of the problem of child sexual abuse in “sex-negative” terms. This doesn’t mean that child sexual abuse can ever be positive! Rather, it means that ECPAT frames the problem of child sexual abuse as being the result of sexual interests or behaviors that are regarded as dirty, deviant, or pathological. It classes sex work, pornography, consensual kink/BDSM, and the depiction of precocious sexuality (aka. “sexualization”) as among these causes, despite the lack of empirical support for these connections. Attacking “sexual deviance” is therefore seen as fair game in their longer-term project to construct a society in which the sexual objectification of children is directly criminalized, unspeakable, and ultimately unthinkable.
Sexual anthropologist Diederik Janssen describes these “increasingly globalist attempts to provide a scientific contour to 18th-century Western European notions of childhood innocence” as “suspended between feminism’s flagship victory and society’s most pathetic moral panic.” Through a “tactic to construe the young body as void of erotic appeal, and to medicalize, shame, boycott and punish any hint of such an appeal,” childhood is framed as “that life stage where sexuality ‘develops’ but never assumes a reckonable or valid form.”
The sex-positive alternative
It’s not necessary to adopt this razed earth approach to childhood sexuality in order to combat child sexual abuse. In fact, rather than constructing a false reality in which childhood sexuality explodes into full bloom at age 18 and which pathologizes and criminalizes the mere thought of its earlier blossoming, a sex-positive approach to child sexual abuse prevention affirms healthy childhood sexuality by making the child’s consent its lodestone.
Child sexual abuse is wrong not because it’s “dirty” or “gross,” but because children are not developmentally mature enough to provide their informed consent to sexual activity with adults. Preventing child sexual abuse doesn’t require us to stick our head in the sand by adopting ahistorical, unscientific, and stigmatizing attitudes about child sexuality. Rather, it involves affirming that regardless of the sexual interests of either child or adult, it is the action of child sexual abuse that is harmful, because it infringes the child’s consent.
There is no way to prevent people from having “impure” thoughts; ECPAT’s approach is, in the long term, doomed to fail. But there are ways of managing harmful behaviors. Taking a sex-positive approach frees us to explore novel approaches to assuring child safety despite the diversity of human sexuality, rather than by requiring that we constrain and control that diversity through censorship and criminalization. |
