3 July 2019 | Comment | Article by Alan Collins

HJ Talks About Abuse: Online child sexual exploitation

In this week's episode of HJ Talks About Abuse, we look at the important topic of online child sexual exploitation. This is a major issue that has come to light over recent years. We look at some cases that highlight the problem, how it is being dealt with currently and what can be done to improve the way we deal with the problem, not just at a national level, but internationally too.

In May 2019, former army officer Andrew Whiddett was sentenced to 3 years and 2 months in prison for 6 child sex charges.

The National Crime Agency has confirmed that Whiddett made 49 payments totalling £8,584 between January and July 2017 to set up and watch child abuse.

Whiddett targeted Filipino children abroad and even proposed visiting the Philippines to abuse a child in person.

As put by the NCA officer Gary Fennelly, "Whiddet thought he could get away with abusing Filipino children from the comfort of his own home" but this is not the case.

The BBC has reported Whittet directed the live-streamed abuse over Skype with known child sex abuse facilitators.

As a result, he pleaded guilty to arranging the commission of a child sex offence and attempting to cause or inciting a nine year old girl and another girl under the age of 16 in sexual activity.  He was convicted in relation to other charges.

This case represents a modern day form of sexual abuse which has become tragically all the more common in our society.  The armchair pedophile is now able to use the internet to further their perverse sexual desires and ruin the lives of vulnerable children in disadvantaged countries and communities. 

Whilst the risk of travelling sex offenders, or “child sex tourists”, still exists and remains a serious risk to children abroad, the sad fact is with the use of the internet, the dark web and crafty cyber criminals, some of those sex offenders do not even need to leave their own homes to commit sexual abuse.

In respect of child sex tourists who travel abroad to disadvantaged countries to offend against children, the abuse team at Hugh James appeared on behalf of Father Shay Cullen of PREDA, a charity helping children affected by sexual abuse in the Philippines, at the Independent Inquiry into Child Sexual Abuse and the hearing into the Protection of Children outside the UK. 

The thrust of Father Cullen’s submissions went to the prevention of this kind of sexual abuse abroad. The best way to do so in our view is investment into local prosecutions in the UK for offending which occurred abroad, which requires further budget to be allocated to the collection of evidence in those countries. Further, the confiscation of the passports of known child sex offenders to cut off their ability to travel to such countries from the outset. We hope the Inquiry will make meaningful recommendations to help in reducing this harm causes by child sex tourists.

Today we will discuss this concerning issue of online abuse, the involvement our team has had in such work in the past and the potential civil liability which, in our view, should follow such conduct.

To illustrate the seriousness of this problem, we note the following data collected by the Internet Watch Foundation (founded by Microsoft) in May 2018.  The UK report is titled “trends in online child sexual exploitation: examining the distribution of captures of live-streamed child sexual abuse”.  During this study, 2,082 images and videos were examined to generate some results and trends. The results, frankly, are disturbing.

The images were divided up into three categories, those categories are as follows:

  • Category A: images involving penetrative sexual activity with an animal or sadism.
  • Category B: images involving non-penetrative sexual activity.
  • Category C: other indecent images not falling into categories A or B.

The results are as follows:

  • 96% depicted children on their own, typically in a home setting such as their own bedroom.
  • 98% of imagery depicted children assessed as 13 years or younger.
  • 96% of the imagery featured girls.
  • 40% of the imagery was Category A or B.
  • 100% of the imagery had been harvested from the original upload location and was being redistributed on third party websites.
  • 4% of the imagery was captured from mobile-only streaming apps.
  • 73% of the imagery appeared on 16 dedicated forums with the purpose of advertising paid downloads of videos of webcam child sexual abuse.

The Child Exploitation and Online Protection Command Unit at the NCA has published some helpful definitions which assist in differentiating between abuse and exploitation.

The NCA states that:

Child Sexual Abuse involves forcing or enticing a child to take part in sexual activity, whether or not the child is aware of what is happening. This may include activities such as involving children in looking at, or in the production of, sexual images, watching sexual activities, encouraging children to behave in sexually inappropriate ways or grooming a child in preparation for abuse

Child Sexual Exploitation is a form of CSA. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a child or young person under the age of 18 into sexual activity (a) in exchange for something the victim needs or wants, and/or (b) the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the activity appears consensual.

Whilst Online Child Sexual Abuse and Exploitation s used throughout this information resource to capture all types of offence. Online offending can take a number of different forms which include:

  1. Online grooming: The act of developing a relationship with a child to enable their abuse and exploitation both online and offline. Online platforms, such as social media, messaging and live streaming, can be used to facilitate this offending.
  2. Live streaming: live streaming services can be used by Child Sex Offenders to incite victims to commit or watch sexual acts via webcam. Child Sex Offenders also stream or watch live contact sexual abuse or indecent images of children with other offenders. In some instances Child Sex Offenders will pay facilitators to stream live contact abuse, with the offender directing what sexual acts are perpetrated against the victim.
  3. Online coercion and blackmail: The coercion or blackmail of a child by technological means, using sexual images and/or videos depicting that child, for the purposes of sexual gain (e.g. to obtain new IIOC or bring about a sexual encounter), financial gain or other personal gain.

The conduct of course also includes the possession of indecent and prohibited images of children.

Today, we will largely speak about the second of those acts, live streaming.

The abuse team at Hugh James has dealt with one notable matter which involved the sexual abuse of children abroad.  This is the case concerning the sexual abuse committed by UK national Douglas Slade.

The Claimants, all anonymised due to the nature of the proceedings, are Filipino children in the Angeles City area who attended a local school. The school was next to Mr Slade’s then residence and Mr Slade preyed on the relative poverty of the Claimants and their families by luring the Claimants into his house with the promise of money, chocolates and drinks. Reprehensibly, Mr Slade took advantage of the vulnerabilities of the local children and sexually abused them when they were present in the house.

The abuse team at Hugh James issued proceedings against Mr Slade in the High Court of England and Wales for the abuse perpetrated by Mr Slade abroad.  The Claimants remained in the Philippines and the abuse was committed in the Philippines but we were able to convince the High Court the matter should be heard in London.   Overall, we obtained a verdict of £127,000 for the Claimants. This illustrates the viability of being able to bring a claim in England and Wales despite the conduct having occurred overseas.

An often overlooked consequence of the abuse occurring overseas is despite a prosecution which may occur in the UK for such conduct, the child is very often left with absolutely no recourse to compensation. It is highly doubtful countries like the Philippines have a criminal injuries compensation authority or similar scheme to compensate victims of crime. So the victim is left without access to essential services and perhaps still at the mercy of the facilitator who arranged the conduct to occur.

This doesn’t need to be the case. Where a user in the UK causes a child to be sexually abused abroad and watches through a live streaming service – that is a crime. It is also a tort – a wrong. In English law this is an assault or a battery which is an actionable wrong for which you sue the person who committed it for damages.

In Sea Shepherd UK v Fish & Fish Limited [2015] UKSC 10 the UK Supreme Court found that a defendant can be jointly liable for a tortious act of the principal if:

  1. The defendant acts in a way which further the commission of the tort by the principal which is greater than de minimis; and
  2. The defendant does so in pursuance of a common design to do or secure the doing of acts which constitute the tort.

In our view, taking Whittet as an example, it would be logical to argue he (as the defendant) should be jointly liable with the person who committed the abuse (or facilitated it) because Whittet commissioned the tort (clearly – this is what he was convicted of doing) and he did so in pursuance of a common design to commit the abuse of the child. 

Further, it arguable that Whittet could be vicariously liable for the criminal actions of the person who committed the abuse (or facilitated it) as his agent.  Whittet has paid that person to commit this crime, or facilitate it; he directed this person to commit the act and the person did so. It seems to us to be fair just and reasonable for Whittet to be vicariously liable in these circumstances.

If the defendant has assets sufficient to satisfy a judgment then the children who suffered the sexual abuse have a shot at obtaining some financial redress for that harm.

The fact the abuse occurred abroad but at the behest of a UK citizen in the UK does not protect that person from criminal liability and in our view, it should not protect them from civil liability either. The victims of such conduct need to be provided with the means to recover also, and this shouldn’t be different because the victims are not in the UK.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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