Home Detention For Child Sex Abuse ImagesTrader
Media release 5 May 2004
HOME DETENTION FOR TRADER OF CHILD SEX ABUSE IMAGES DISPPOINTING
The decision by the Parole Board, to grant home detention to Stephen Karl Folster, for trading and possessing images of children being raped and sexually abused, has disappointed lobby group ECPAT.
In the absence of the child victims being able to be heard at the hearing ECPAT NZ, a child advocacy group seeking an end to the child sex trade, made written submissions to the Parole Board for consideration at the hearing. In doing so, ECPAT cited sections of the Parole Act 2002 and New Zealand's international obligations to child victims of child pornography contained in the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2000.
ECPAT argued against home detention under four grounds set out in the Act. ECPAT submitted that given the nature of the offences and the contributory role the offender played in the sexual acts committed on the children, the appropriate penalty would be for the offender to serve his prison sentence in prison. To grant an application for home detention, ECPAT submitted, would (a) disregard the recent signals given by the New Zealand Government, (b) minimise the seriousness of sexual crimes against children, (c) serve little deterrent purpose and (d) be contrary to the concerted global work being done to end the trade.
Application for Home Detention - Stephen Karl Folster
Submission by ECPAT NZ Inc
ECPAT NZ Inc (ECPAT) seeks to have a submission placed before the Parole Board ("the Board") in respect of the above application.
2. ECPAT's standing
ECPAT is an advocate for children who are commercially sexually exploited and abused, including children who are the subject of child sex abuse images.
- ECPAT is a non-governmental organization that was established in New Zealand in 1993. It is part of the international ECPAT movement whose mandate is to end child prostitution, child pornography and the trafficking of children for sexual purposes.
- ECPAT has previously represented, in New Zealand legal processes, sexually exploited children outside New Zealand.
- ECPAT's work is acknowledged by both government and non-government agencies in New Zealand (see attached letters from the Department of Internal Affairs, Save the Children New Zealand, and the Office of the Commissioner for Children).
3. Victims in this case
3.1 The victims are real children
The offender's victims are real children aged between two and 12 years who were raped and violently abused in the many images the offender distributed and collected and which were the subject of the charges laid against him and his subsequent conviction.
- The trade in child sex abuse images, like all trades, is predicated on demand and supply. The offender, like all traders and possessors of such images, required children to be sexually violated. As such the offender played a contributory role in the many acts of sexual violation on the babies and children in the material he distributed and collected.
3.2 Foreign children included in New Zealand laws and international obligations
It is no defence that the victims were unknown to the offender. Neither it is a defence that the children were likely to have been foreign children.
- The Films, Videos, and Publications Classification Act 1993 as it relates to any publication "that promotes or supports, or tends to promote or support, the exploitation of children or young persons¡K for sexual purposes" is not confined to New Zealand children.
- New Zealand's obligations as a States Party under the United Nations Convention on the Rights of the Child 1989 states:
"States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent¡K the exploitative use of children in pornographic performances and materials. (emphasis added)".
Thus, New Zealand is obliged to protect all children used in pornography no matter where those children reside.
4. Advocate for unrepresented victims
4.1 The Parole Act 2002
The Parole Act 2002 ("the Act") provides that the process of hearing applications offers a victim the right to be heard and the right to be supported through the process by a support person. Further, s 47 (b) provides that in interviews before hearings, "if there are special circumstances, and with the consent of the victim and the prior written approval of the Board, the victim may be represented at the interview by another person who must attend the interview in place of the victim". Consequently, the Act anticipates, and provides for, situations where a support person, or a representative standing in for a victim, may participate during the process leading up to, and during, the hearing of an application.
4.2 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography 2000
New Zealand's obligations under the Optional Protocol, with respect to rights given to children in the criminal justice process, include:
1. States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, in particular by:
(c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law¡K
Submission: In the circumstances of this case, where the child victims are unable to speak to the Board, ECPAT believes it is appropriate that they have representation. ECPAT believes it is an appropriate agency to represent the child victims in this case and seeks the Board's permission to do so by way of submissions.
5. Section 35(2)(b)
ECPAT notes that the Board may give a direction for home detention if it is satisfied that the grounds set out in s 35(2)(b) are reasonably met. ECPAT makes the following submissions:
(a) Likelihood of offender committing further offences while on home detention - s 35(2)(b)(i)
- Pornography, whether child or adult, is commonly addictive
- Despite an order forfeiting the offender's computer, he is not precluded from purchasing another Internet-connectible device (computer, notebook, mobile telephone)
- Third parties would not be precluded from visiting or lending the offender an Internet-connectible device
- Any conditions that might be placed on the offender with respect to not purchasing, or not accessing from his home, another Internet-connectible device could not be adequately monitored
- The offender would be returning to the scene of his offending and might be encouraged to re-offend by triggers in his home environment
o It is not uncommon for collectors of child sex abuse images to possess substantial quantities of memorabilia which can often be stored in places not searched in the originating search warrant
o Social isolation is another likely trigger for re-offending (refer (c) below).
Submission: In all of the circumstances, the likelihood of the offender committing further offences while on home detention is considerable.
(b) Nature of the offences - s 35(2)(b)(ii)
- The child sex abuse images distributed and possessed by the offender involved sexual crimes against children, for which the offender played a contributory role (refer para 3.1 above)
- Consideration must be given to the scale (hundreds of images) and gravity of offences (images involving the graphic rape and sexual abuse of children including babies)
- The Government has signalled that New Zealand must treat the trade in child sex abuse images as a serious crime against children (reflected in the Films, Videos, and Publications Classification Amendment Bill currently before the House) and that penalties must reflect the gravity of these crimes and further act as a deterrent to others
- The offender has contributed directly to the global proliferation of Internet child sex abuse images that has prompted international calls, through international Conventions referred to above, for a concerted global commitment by all countries to denounce such crimes in the strongest terms.
Submission: Given the nature of the offences, the appropriate penalty in this case is for the offender to serve his prison sentence in prison. To grant an application for home detention would (a) disregard the recent signals given by the New Zealand Government, (b) minimise the seriousness of sexual crimes against children, (c) serve little deterrent purpose and (d) be contrary to the concerted global work being done to end the trade.
(c) Welfare of offender and likelihood rehabilitation and reintegration assisted by home detention
- The social isolation provided by home detention is more likely to provide the offender with the time and opportunity to reinforce his falsely-held belief that sex with children is acceptable
- Some offenders trade child sex abuse images for reasons of financial gain, others for personal sexual gratification. The offender falls into the latter group in that he has acknowledged that he derived pleasure from images of children being sexually violated. The social isolation provided by home detention is likely to provide the offender with greater opportunity for engaging in his sexual fantasies about children and further reinforcing his existing beliefs.
Submission: Rehabilitation and reintegration of the offender is highly unlikely to be assisted by home detention.
(d) Outcome of any restorative justice process
- There has been no restorative justice process.
Submission: Given that there has been no restorative justice process the consideration for home detention is weighted against the offender on this ground.
6. Concluding Submission
For the reasons stated above, ECPAT submits that the application for home detention should be declined.