Sexual abuse and exploitation that uses children and youth as the subject of pornographic material not only violates the legal right of the individual victims, but also involves the serious sexual crime of the society as a whole. This study examines the public awareness of the issues surrounding pornography using children and youth and reviews the relevant legislation, both domestic and international, to make a suggestion on the direction that will help improve the policy and laws of the land in this matter.

Current Legislation on Domestic and International Settings

According to the International Labor Organization (ILO), trafficking of children is increasing rapidly and the number of children that are forced to engage in sexual activities also surges as a result. In a society where new technologies and the growth of the internet are creating more commercial opportunities to exploit children and developing into a large-scale industry across the world, our legal reality that does not find possession of child pornograph as crime simply because there is no actual act of abuse against children could result in an additional sexual abuse and violation against the children. Therefore, the demands to regulate sexual exploitation of children is continuously on the rise.
The United Nations (UN) has made active efforts to control child pornography on international level and ratified a series of concrete treaties, including the Convention on the Rights of the Child, World Congress Against Commercial Sexual Exploitation of Children, and Optional Protocol on the Sale of Children, Child Prostitute and Child Pornography. In addition, through the International Centre for Missing & Exploited Children (ICMEC), it monitors the INTERPOL member countries on their observation of the international treaties. The five areas that ICMEC examines are first, whether the signatory country has a certain piece of legislation governing child pornography, second, whether the signatory has a legal definition and provisions concerning child pornography, third, whether the signatory interprets child pornography using computers as a crime, fourth, whether the signatory interprets intentional possession of child pornography as a crime, and fifth, whether the signatory imposes on the internet service providers a mandatory duty to report child pornography or suspected child pornography to criminal justice organization or relevant law enforcement. According to ICMEC’s survey in 2016, 11 countries satisfied all five areas and 71 countries satisfied four areas, which indicates an unified effort of the international communities to conform with the UN treaties.
In the US, the recognition that child abuse starts from sexually abusing the child was made in 1970s and the federal government promoted legislation to regulate child pornography. Relevant laws include the Protection of Children Against Sexual Exploitation Act, the Protection of Children Act, the Protection of Children and Prevention of Pornography Act, the Child Protection Restoration and Penalties Enhancement Act, Child Protection Restoration and Punishment Act, Child Pornography Prevention Act, the Child Online Protection Act, and the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act. These laws aim to restrict pornography in which a minor under the age of 18 or a person that appears to be a minor, or representation of the same and punish the acts of producing, circulating, possessing, and distributing such material. Further, the US laws include not only an act that depicts or describes sexual conduct by a minor, or but also an act that appears to commit the same, in the category of child pornography.
In the UK, child pornography is regulated by much stricter standard than that of the US and there exists a social consensus to put protection of children’s right before freedom of expression. The UK’s laws in this regard include the Child Protection Act, laws concerning child pornography under the Criminal Law Act, laws concerning distribution of child pornography through computers under the Criminal Justice and Public Order Act, aggravated punishment for child pornography under the Criminal Justice and Court Services Act, and Sexual Offences Act, which adjusted a definition of ‘child.’ In principle, the UK law defines ‘child’ as a person under the age of 18 years. However, if a person depicted in the image appears to be a child or despite certain features in the image the overall tone of the image makes the subject appear to be a minor or represent the subject as a minor, the law interprets it as a ‘child.’
In Germany, the regulation of child pornography adopted ‘2011/2013 EU Standards to combat sexual abuse and exploitation of children from child pornography’ into their legislation, with a purpose to protect children from sexual abuse or other forms of maltreatments. For example, Article 184b of the Criminal Act of Germany prescribes distribution, acquisition and possession of child (using) pornography, Article 184c prescribes distribution, acquisition and possession of youth (using) pornography, Article 184d prescribes access to obscene materials by means of broadcasting or mass media:　retrieve child (using) pornography of by means of communicating medium, and Article 184e prescribes holding or visiting public performance of child (using) pornography.
In Austria, legal provisions of punishing child (using) pornography were introduced under Article 207a of the Criminal Act 1994, with the purpose of providing comprehensive and sufficient criminal law protection against child pornographic material, which used to be regarded as a part of “hardcore (harter)” obscene materials. The revised Criminal Act 1996 strengthened the punishment against the violation of these provisions, and the 2004 revision prepared a fundamental redesign of the relevant law by Article 207a, resulting in a variety of regulations in compliance with 2003 EU Standards concerning combatting sexual maltreatment of children and child pornography. Through the series of revisions of criminal laws, Austria has expanded the scope of punishment clearly in this area.
In the meantime, Japan enacted the Act on the Punishment of Child Prostitution, Child Pornography etc. and Protection of Children in 1999 and has enforced it. The Act defines medium of child pornography as images and writing by electronic recording and others, and based on this punishes production, circulation and possession of child pornography. In particular, the Act includes a provision that a violator who did not know whether the subject of pornography was less than 18 years old shall not escape the punishment, if he or she is found at fault. However, unlike in the UK or the US, the laws do not punish the obscene materials in which an actual person under 18 does not appear in Japan.
In Korea, for the purpose of protecting and rescuing the youth from any act concerning purchase, or arrange to purchase sex of a youth, any act concerning produce and distribute an obscene material using youth, and sexual violence against youth, and therefore to protect the rights of the youth and support them to become healthy members of our society,” the Act on the Protection of Children and Juveniles from Sexual Abuse was enacted and the regulation on child pornography began. In December 29, 2005, the Act was revised to remove “expression of obscene content” and inserted “expression of other sexual activities”, instead, to extend the scope of target expression. A further revision of the Act on September 15, 2011 extended the scope of child using pornography to include “a person or a thing that appears to be or may be recognized as a minor,” and the revision of December 18, 2012 added the word “clearly” in the definition.

Survey on the Public Awareness

The results of the online survey conducted on 5000 ordinary citizens aged between 14 and 64 are as follows.
- 26.8% of the total participants responded that they had experience with child using pornography, of which 35.1 was male, 18.1% was female, 38.5% was persons in their 10s, 30.9% in 20s, 27.9% in 30s, 26.1% in 40s, 21.8% in 50s, and 19.4% in 60s.
- As for the place most frequently used to access to child using pornography, residence was 55.5%, commercial establishment (PC room etc.) was 20.4%, and workplace. The most frequently used communication devices were smartphone (42.9%) and desktop computer (42.4%) totaling approximately 85%. Other devices included notebook computer (10.8%) and tablet computer (2.8%).
- As for the route to use child using pornography, ‘by unintended exposure’ accounted for 63.3%, ‘through search and related links’ accounted for 24.2%, ‘through sharing with friends or acquaintances’ accounted 7.6%, and ‘through upload and download during community activities’ accounted for 4.8% respectively. As for the method to use child using pornograph, ‘real-time on online sites’ was 68.3%, ‘saving the file by downloading and viewing’ was 15.8%, ‘online saving using web hard etc’ was 7.5%, and ‘link or add to favorites the intended address“ was 4.1%.
- The participants recognized that compared to adult pornography (62.2%), youth (83.7%) and child (84.9%) pornography are more harmful to the society.
- The rate that ‘pornography in which an actual child appears’, ‘virtual pornography’ and ‘pornography in which an adult pretends to be a child’ should be all punished has increased, resulting in, 97.6%, 82.2%, 66.6% of the participants responded affirmatively to the idea of criminal punishment, respectively. In addition, the majority of participants responded that ‘virtual pornography’ and ‘an adult pretending pornography’ should be punished same as ‘pornography in which an actual child appears.’
- The survey on the needs of punishment by types of crime concerning child using pornography reveals that the participants strongly agree to seven types of criminal punishment currently enforced, except simple possession of an article. In detail, 55.3% of the participants responded negatively about the criminal punishment of ‘simple possession of an obscene material,’ while 44.7 were affirmative.

A Direction to Improve the Current Laws in Korea

The definition of child pornography under the current laws of the land uses the term “clearly,” for which many critics have raised a question of interpretation due to the word’s inherent vagueness. Nevertheless, since the Supreme Court applies a narrow interpretation of the word, it is likely to be appropriate that the word in the current definition, along with a strict interpretation should be maintained, while the phrase “other sexual activities” should be deleted.
It is controversial whether to punish virtual pornography. Given the international trends that the countries continuously extend the scope of child pornography to eradicate this heinous crime against children and youth, it is clear that regulation about child using pornography should be strengthened; nevertheless, it is necessary that regulation about virtual pornography be limited to a certain degree. In this context, the legislature might consider a further revision of the laws to differentiate the ways to regulate virtual pornography depending on the act of violator. In other words, it might adjust the scope of statutory violation and resulting punishment thereof by lifting the restrictions on simple possession of virtual pornography, while punishing an act to show children and youth such piece.
Whether to punish simple possession of child pornography is also controversial. It would be fair to differentiate penalties depending on the scope of child pornography and form of act in question and therefore simple possession should be lifted from the subject of punishment. Even if there exists a strong need to sanction simple possession of child pornography in order to protect children and youth from sexual abuse and exploitation more aggressively, to be fair, simple possession of virtual pornography should be probably excluded.
In reality, sexual violation against a minor child and sexual violence against a youth are subject to a different degree of punishment. Given that, if the law distinguishes minor children from youth group and applied aggravated punishment to the crimes against the former while applies somewhat flexible punishment to the latter, it would achieve the regulatory purposes rather efficiently.
In regards to the current Act on the Protection of Children and Juveniles Against Sexual Abuse, Article 11, which punishes violations against minor children and against youth by the same standard without distinction between the two, the legislature should consider distinguishing regulation about child using pornography from youth using pornography and differentiating the sentences thereof, as well.