The Law evolves with modern issues and problems – today TNAC examines the issue of child sex dolls and their position in the current Law.

Tempora mutantur, nos et mutamur in illis – ‘the times change and we change with the times’. Often things must changes, changing with the times, whether they be attitudes to gay marriage, abortion or soft drugs usage and with changes to attitudes the Law must change to legislate in a way which is satisfactory to the people and to the lawmakers understanding of what society should ideally be. But as the times change, the Law must now always be bound to change also, having concrete, legally enforced morality is what enables society to be stable and function – the crimes of murder and rape, one would hope, will never be made legal, even with a majority of people agreeing with their legalisation. The Law is dynamic and meets the future, but also is not bound to tear up the previous rules for the sake of ‘progress’.

The Law, this year, has recently met a new challenge to which it must dynamically answer but which must also reflect the concrete values of our British society. Since March 2016, the National Crime Agency (NCA) and the UK Border Force have seized 123 ‘child sex dolls’ intended for the usage of 123 importers in the UK. The dolls which have been imported are supposedly ‘lifelike’ in their similarity to the pre-pubescent child, weigh as much as a child and can be bought for £800, usually from manufacturers in Asia who market the articles as ‘adult dolls’. The NCA makes clear that those importing such dolls have a sexual interest in children.

This new crime, made possible through advances not only in manufacturing but also through internet commerce and international trade and shipping, was highlighted in a case brought before Canterbury Crown Court, R v Turner. In the case, which has yet to be sentenced, David Turner, a 73 year-old former school governor and church warden was arrested for importing a child sex doll and when further investigated was discovered to have a further two in his study as well as being in possession of approximately 34,000 indecent images of children aged 3 – 16, 138 of which were of the most serious category of child abuse. During the case, Turner asked the judge to clarify a point of Law, namely, was the doll an obscene article.

The fact that clarification had to be asked for, shows a current lacking in the Law with regards to child sex dolls. Currently, legislation which protects children from sexual abuse or indecency, namely the crimes under the Sexual Offences Act 2003 of sexual activity with a child, sexual assault, assault of a child by penetration and rape, for obvious reasons cannot be invoked against individuals utilising child sex dolls – for whilst the doll resembles a child it is not legally a child – but there is with regards to the child dolls, no current legislation exists which criminalises their ownership, exploitation or even manufacture in the UK.

Royal Coat of Arms on the Crown Court in Cambridge – In R v Turner it is the common law of judges which will shape the issue surrounding the future of child sex dolls and their legality in the UK (Credit: geograph under CC BY-SA 2.0)

As of August 2017 there is, in effect, only one crime for which users of child sex dolls can be arrested: the crime for which Turner was arrested for and charged with – importation of an indecent article. The offence of importing an indecent or obscene article was established in the Customs Consolidation Act 1876 but the legislation in question and other statutes such as the Obscene Publications Act 1959 which deals with indecent articles in broader terms have two flaws.

The first is that much, if not all, of the legislation which regulates and criminalises the indecent focuses on publications and articles such as photographs and videos – the unforeseeable evolution of plastic into dolls which resemble children which can be used for indecent purposes means that the legislation of the 1950’s or 1870’s has no specific reference to such things, no doubt, before a clarification in the Law, a state of affairs which makes prosecution difficult, if you adopt a strictly literalist approach to the reading of legislation. The second is that, with regards to the Customs Consolidation Act 1876 and the offence of indecent importation, the Act does not give a definition for what is indecent – it is up to the court to decide whether an article is indecent which, for a Crown Prosecution Service with limited resources may be discouraging for prosecutions, unless a judgement in the Law made clear the status of child sex dolls with regards to their (in)decency.

In this case, perhaps thankfully, both issues have been resolved with the judgement in Turner, by Judge Simon James. He ruled that child sex dolls, as imported by Turner, were indecent and obscene under the Law, the test to determine so being, according to the Oxford Dictionary of Law’s definition of indecency, “conduct that the average person would find shocking or revolting.” Thus, unless overturned by a higher Court, although this is unlikely considering the seemingly obvious, yet crucially necessary judgement due to the nature of the British legal system’s importance on precedence, the Law stands that child sex dolls are obscene articles.

Now, to play Devil’s advocate, two criticisms could be levelled against the ruling of Judge James. The first is that, in a literalist sense, the Customs Consolidation Act does not refer to sex dolls specifically, rather, as mentioned, publications such as books and newspapers. Therefore, it could be argued that rather than relying on perhaps a dodgy interpretation of a statute which was never meant to regulate such affairs, a new statute would be necessary to give a proper legal grounding for its illegality. Undoubtedly there may be merit in this view but currently, for want of proper, specifically referenced legislation, it can be said that the rationale under which the Customs Consolidation Act 1876 was passed, insofar as preventing obscene material entering the UK, is just as applicable with child sex dolls in principles as it has been with other indecent materials since. This view could be supported by the fact that the 1876 Act is still enforced – the principle of the Law it proscribes is effectively unchanged.

The second is that the usage of child sex dolls should not be designated as obscene because either for the sake of personal liberty or because, according to some sources such as the Chair of the Specialist Treatment Organization for the Prevention of Sexual Offending, Juliet Grayson, who suggested that, much like how methadone is issued to heroin addicts, realistic sex dolls should be issued to paedophiles so as to prevent them offending against children. However, I would suggest that such a state of affairs is completely unacceptable. Whilst it is true that the use of a child sex doll does literally harm a child and thus is acceptable under the liberty principle and provides justification for their therapeutic usage, the rationale behind laws which stop indecency towards children, I propose, are not just there to prevent harm to individuals. The rationale for laws preventing indecency towards children is because we as a society accept that the concept and very principle of sexual activity with children is grossly immoral and should be subject to the strictest possible criminal punishments. Even if someone therefore engages in sexual activity with a child sex doll, they are engaging in the principle of sexual activity with a child – it matters not whether a child is harmed, harm is done to society through allowing someone to exercise what is seen as a perverse and unnatural behaviour. The liberty principle should be held as null and void with regards to such behaviour and even with the guise of helping paedophiles in their behaviours, to do so by allowing them to engage in wholly inappropriate behaviour would be wrong – this is supported by the NSPCC who say that there is no link between the use of child sex dolls and the rehabilitation of paedophiles and that in fact their use could normalise paedophilic behaviours.

Where to now? The NSPCC is calling for the criminalisation of the manufacture, possession and distribution of these dolls and no doubt in Parliament debate will take place, perhaps prompted by the Law Commission. Legislation should be made and passed which provides much needed clarity for our judicial and policing forces and until then it will be up to common law and the dynamics of the courts and cases to keep the indecent illegal and the Law satisfactory.