00Mar26a Ambiguities in campaign

"The ambiguities in the campaign against paedophilia",

by Jean-Michel Dumay

(in Le Monde, Saturday 25 March 2000)

There cannot be the slightest doubt about the legitimacy of the campaigns
against the exploitation of children. And, all praise is due to the associations
that, during the past few years, have been tireless in their efforts to break the
'conspiracy of silence' that so often conceals cases of sexual or other abuse of
children. However, because this combat - and that against paedophilia in
particular - raises such intense emotions, care must be taken to define its scope
with great precision.

The operation 'Ado71' which was launched in June 1997 by the law-enforcement
authorities in Macon (in the Department of Saone-et-Loire) at the time the
Dutroux affair was in the headlines, led to the spectacular arrest of some seven
hundred people whose names appeared in the records of a publisher of normal
and [legitimate] pornographic video-cassettes, Bernard Alapetite, who also sold
video-cassettes of a paedophilic nature as a side-line. Subsequently, some
three hundred warrants for police enquiries were issued all over France, and
detailed investigations were undertaken in about a hundred cases.Those
concered were charged with 'possession of objects obtained through the
offence of the corruption of minors' i.e. one or more video-cassettes.

This operation, which was presented in legal circles and the media as a 'crack-
down on paedophilia', resulted in a lively public debate after five of the people
who had been detained during enquiries committed suicide. A civil liberties
group, the Human Rights League, scathingly described the mass arrests which
had led to unwarranted speculation as "a scandalous round-up". Those charged
by the authorities in Macon, some sixty men, were finally brought to Court in the
week 13 - 17 March 2000 (see Le Monde dated 15, 16 and 17 March - the
verdicts will be announced on 10th May), and the proceedings did nothing to
dispel the impression that the scope of the action to combat paedophilia was
liable to be expanded too widely.

There are three reasons for this: firstly, because the issue in this case, like that
known as 'Toro Bravo' which reached the Courts in 1997, is one of voyeurism
rather than that of active paedophilia - itself not a concept recognised by law.
Secondly, because the authorities persistently refer generically to 'children'
(which is ususally understood as meaning only those who have not reached the
age of puberty, or at most those under fifteen years old who are sought after by
paedophile criminals), although most such cases involve adolescents who are
almost adults, and are certainly not the victims of sexual assault or rape.
Finally,
because then only a small step need to be taken to use what was originally a
fully justified campaign against the sexual abuse of children as a pretext for
launching a full-blown moral crusade against indecency, pornography and
homosexuality.

For what were the facts in the Macon case? Of the sixty-one defendants, most of
whom were homosexuals, four out of five were accused of possessing one or
two questionable video-cassettes depicting adolescents who looked between
sixteen and eighteen years old. And that is indeed the basic problem; why
should anybody be criminally liable for their failure to correctly determine the
precise age of somebody appearing in a video-cassette, as about a third of the
defendants were accused of? According to the jurisprudence, in the absence of
evidence proving how old the person deeemed to have been corrupted was
when the scene was filmed, the only criterion is their subjective appearance. But
whose subjective opinion is valid for this purpose? Here at Macon, the two
'experts' were not pediatricians, nor indeed medically qualified in any way, but
photographers and/or image techicians.
Furthermore, a significant proportion of the defendants claimed that they
acquired the cassettes in good faith, not through Alapetite's network but from
sex-shops that had them on sale openly and guaranteed that the performers
were not under-age; indeed, some of them had been deposited in the National
Library as required by law.
According to the evidence presented in Court, during a preliminary hearing at
the beginning of the operation known as 'Ado 71' one of the producers had
offered to provide the law-enforcement authorities with affadavits from the
performers regarding their ages. But apparently the prosecution had not taken
this into account. It was also stated that some of the cassettes in question had
already been seized earlier by the police during the 'Toro Bravo' case (lists of
customers for such merchandise often have overlaps), and that after
examination they had been returned by the police who then considered that no
prosecution was needed.

In 1997, the prosecutor in the Toro Bravo case, Michèle Ganascia from the
Paris Public Prosecutor's office, was very careful to emphasise that the specific
accusations of 'sexual voyeurism' must be distinguished from any possible
allegations of sexual assault and rape of children that might be confused with
them. She also warned that 'homosexuality was not on trial' in that case. Her
warning remains topical today.

In Macon, some of those accused of possessing cassettes depicting
performers who appear to be at least fifteen years old were asked if they were
undergoing therapy. One is often tempted to ask 'what for?' For pornography?
For homosexuality? For their being aware that some young people are sexually
attractive? Indeed, if they felt themselves culpable, trembling with shame, for
many of them that was obviously because they had been exposed as voyeurs of
pornography, or as repressed homosexuals. One of them even so far as to
claim: "I'm much better now - I'm watching cassettes of heterosexual adults..."

The Corruption of Minors

In fact, as the Tribunal's president Gérard Gaucher finally reminded the Court,
there is nothing illegal about finding young men attractive - the law [enacted
during the Occupation] that prohibited freely consensual relationships between
an adult and anybody of the same sex over fifteen years old was repealed in
1981. It is because the production and commercial distribution of images
depicting such activities amounts to the offence of 'corruption of a minor' that
their possession is deemed to be unlawful, as an incitation.

During the Toro Bravo case, Mrs Ganascia clearly explained how the law sees
no inconsistency in decriminalising fully consensual homosexual relations with
minors not less than fifteen years old while explicitly protecting their dignity and
image.
"Not because of an old-fashioned idea of modesty," she said, "but in order to
allow adolescents the time they need to choose, and to hesitate, without being
corrupted by the pressures they would probably experience after having
exposed themselves to the camera." Had such an explanation been given in
Macon, the Court would perhaps have concentrated its attention on the thirty-
odd persons accused of possessing cassettes showing indecent behaviour by
minors less than fifteen years old. Some of these defendants had previously
been convicted of sexual offences, including several who openly admitted their
paedophilia and who should have been examined by pyschiatrists so as to
determine the extent to which they might be inclined themselves to perform the
scenes depicted in their extensive collections of cassettes.

In the early days of Operation Ado71, the public prosecutor in Macon, Jean-
Louis Coste, defended himself from the charge that he wanted it to be an
"Operation of purification". He explained that because a collection of
photographs showing mutilations of children's genitals had been seized from
one of the persons whose name and address was on the list of customers for
the cassettes, it was originally thought that a network of far more serious
criminals had been uncovered. In fact, the photographs had been collected by
an association campaigning against the circumcision of children, which had
nothing to do with the video-cassettes. But that was why all those whose names
were on the list of customers had been rounded up so spectacularly and
paraded before the television cameras. In his closing address to the Court,
which showed that Mr Coste had finally understood what he had done, he
expressed his regrets: "It's a pity that that five people lost their life in these
circumstances, as after all they didn't deserve to die".