Grooming: Criminalising Under Common Law

Legal Blog: Grooming: Criminalising Under Common Law by Philipa Jane Farley. I offer business support to bloggers and business owners so that they have an easy, fun time safely interacting with their online customer community.

I wrote a paper in my final year of studying law at the University of Cape Town.  The topic was "Criminalising child grooming over the internet in South Africa - common law or legislation?" I wrote it at the time a provision in the Children's Act was being debated relating to this matter.  I have attached the paper for download.  If you are going to use it, please credit me or the sources listed in the paper.  

I am sharing the paper as I feel the information contained in the paper or any understanding gleaned from it, might help parents and teachers who are dealing with this issue.  I'll extract a few summaries below:

What is grooming?
Grooming is the process that paedophiles use to gain the trust and lower the inhibitions of vulnerable children to ultimately ensure that the children are prepared to perform or be a part of sexual acts. Grooming may be sexual or non-sexual in content. Non-sexual grooming would include gaining the child’s trust by inquiring into his or her personal life or sympathising with any emotional problems the child might be experiencing. Paedophiles may also threaten children during the grooming process in order to ensure co-operation. Paedophiles who groom online tend to misrepresent their age as close to the age of the child to make the child more comfortable talking to them.

Grooming occurs online (the focus of this paper) and offline in the real world. The grooming process will entail several stages of communication. These have been identified by researchers as the friendship forming stage (getting to know each other), the relationship forming stage (enquiries into personal life), the risk assessment stage (the paedophile assessing the risk to himself or herself), the exclusivity stage (making the child feel that only the paedophile is there for them to talk to about problems) and the sexual stage. It has been said that grooming online does not introduce anything new to the process, but it does usually speed it up.

Effect on the child
It is trite that grooming is an assault upon the dignity of the child and therefore a violation of the right to dignity as embodied in s 10 of the Constitution. When examining the effect on the dignity of the child it is important to note specifically that grooming affects the process of individuation that every child will go through. The effect of the grooming is that a child will never have the opportunity to fully develop their personality in a way they could have if that deviant power had not been exerted over them. Professor Cornell submits that there are three necessary conditions ‘that insure a minimum degree of individuation’ which allow us to transform ‘into individuated beings who can participate in public and political life as equal citizens.’ These three conditions are bodily integrity, ‘access to symbolic forms sufficient to achieve linguistic skills permitting the differentiation of oneself from others’ and ‘the protection of the imaginary domain’.

The third of these conditions, the imaginary domain, is of particular importance to the issues at hand. What is the imaginary domain?

The notion of the imaginary domain recognizes that literal space cannot be conflated with psychic space and reveals that our sense of freedom is intimately tied to the renewal of the imagination as we come to terms with who we are and who we wish to be as sexuate beings.

This view holds that our psychic space (our imagination) can never be melded with our literal space. Therefore, if our imagination is affected in some way, there is no way that reality will take precedence over the imagination. That damage to the imagination is there forever. Cornell states that because the imaginary cannot be separated from ‘one’s sexual imago’ nobody else’s imaginary should be imposed onto any other person ‘in such a way as to rob him or her of respect for his or her sexuate being.’ If this is done and self-respect is lost, ‘crippling shame’ can be experienced.

According to Rawls, self-respect is a primary good and without self-respect ‘nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them.’ Grooming fundamentally affects a child’s imaginary domain thereby ultimately affecting their self-respect. The child will be damaged in a way that recovery from the experience might be impossible. No child should be subjected to this and if they are there is a duty upon the state to ensure that the child has an adequate remedy. We should never forget that the interests of the child are of paramount importance.

Current Law – Common Law and/or Legislation

Grooming can be prosecuted under the common law crimes of crimen iniuria or indecent assault.90 Indecent assault invariably is crimen iniuria and it is up to the prosecutor to decide which the crime will be tried under, but in a case of grooming crimen iniuria would be more appropriate as the assault upon the child’s dignity should be emphasised. Professor Burchell submits with regards to grooming ‘that the supple common-law definitions of indecent assault and crimen iniuria…provide a more effective means of proscription than the limiting terms of a statute.’ Burchell believes that the ‘“grooming” of a child via the internet as a preliminary step towards engaging in sexual conduct with the child would constitute an impairment of the dignity of the child’ and therefore be crimen iniuria. The elements of crimen iniuria are unlawful and intentional impairment of the dignity or privacy of another person. The test for determining whether dignity has been impaired is if the sensibility of a reasonable person is or would be offended by the conduct. The victim does not have to be aware that their dignity is being impaired at the time of the conduct but can become aware of the impairment of their dignity after the conduct has been committed. There are exceptional cases where the victim does not have to be aware of the impairment of their dignity. With regards to intention, Burchell submits that a standard of negligence might suffice and freedom of expression curtailed if an impairment of dignity is involved.

Legislation versus the common law
It was mentioned above that the common law crime of crimen iniuria and indecent assault could be used to prosecute an instance of grooming, but preferably crimen iniuria. It has been shown that the legislature is moving towards a statutory response to the problem of grooming possibly because there seem to be ‘insurmountable difficulties in extending the definitions of common-law crimes to so-called computer crimes.’ However, Burchell points out that there is a distinction between crimes involving computers as a tool and computers as the object or victim in which case personality would have to be attributed to a machine. Grooming would be a crime involving a computer as a tool such as a telephone or a fax machine, and therefore, in Burchell’s opinion, should be prosecuted using the common law.

Children are being targeted and exploited in their own homes and this disturbing fact has been recognised by countries around the world. There is only so much that education of parents will achieve and if parental protection fails there has to be recourse for a child who is groomed and thus psychologically abused. It is submitted that the proposed clause that will criminalise grooming in the Criminal Law (Sexual Offences) Amendment Bill might be a step forward in the right direction for advancing protection of children and their rights in that the clause might create an awareness of the problem of grooming and especially grooming online, but the legislature should carefully consider the issues outlined above, especially that of the computer being a tool in these situations. The legislature might come to the realisation that there is no good reason why a statutory provision should be enacted to cover a criminal situation that the common law currently adequately covers.

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