Sex Dolls - Childlike

Published: 26/03/2019|Legal Guidance

Introduction

This Legal Guidance is intended to assist when prosecutors are asked to advise on allegations that an offence has been committed involving a doll withis in any way knowingly concerned is in any way knowingly concerned childlike characteristics which is capable of being used for sexual purposes. 

It relates to possible offences of importing a childlike sex doll, distributing or selling it (or having it with intent to do so), or sending it by post. There is no offence of simple possession of a childlike sex doll. 

Possible offences

There are three offences which may have been committed: 

(a) Knowingly acquiring possession of goods with respect to the importation of which any prohibition or restriction is in force, namely the prohibition or restriction on the importation of indecent or obscene articles, contrary to section 42 of the Customs and Consolidation Act 1876 (“CCA 1876”) and section 170(1)(a) Customs and Excise Management Act 1979 (“CEMA 1979”). 

(b) Publishing an obscene article, whether for gain or not, or having an obscene article for publication for gain, contrary to section 2(1) Obscene Publications Act 1959 (“OPA 1959”).

(c) Sending by post a postal packet which encloses any indecent or obscene article, contrary to section 85(3)(b) Postal Services Act 2000. 

Section 42 of the CCA 1876, and the Table to which it refers, provides that: 

“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom,

A TABLE OF PROHIBITION AND RESTRICTIONS INWARDS 

Goods prohibited to be imported 

… Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.” 

 Section 170 of CEMA 1979 provides: 

“(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person— 

(a) knowingly acquires possession of any of the following goods, that is to say— 

  1. goods which have been unlawfully removed from a warehouse or Queen's warehouse; 
  2. goods which are chargeable with a duty which has not been paid; 
  3. goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or 

(b) is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods, and does so with intent to defraud Her Majesty of any duty payable on the goods or to evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be arrested.” 

This offence is triable summarily or on indictment. The maximum sentence is seven years’ imprisonment and/or an unlimited fine. Goods may be forfeited pursuant to section 49 CEMA 1979. 

Other offences under CEMA 1979 are viable, including those contrary to section 50(3) and 170(2) (noting the breadth of conduct caught by the latter offence). It is anticipated however that most allegations will concern a person knowingly acquiring possession of prohibited/restricted items. 

The second offence available concerns a person who, whether for gain or not, publishes an obscene article, or a person who has an obscene article for publication for gain (whether gain to himself or gain to another). Such a person commits an offence contrary to section 2(1) OPA 1959.   “Obscene, “article” and “publishes” are defined in section 1 of the Act: 

  1. “For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. 
  2. In this Act “article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures. 
  3. For the purposes of this Act a person publishes an article who— 
  1. distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or 
  2. in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data”. 

his offence is triable summarily or on indictment. The maximum sentence is five years’ imprisonment and/or an unlimited fine. 

The third offence concerns a similar assessment of indecent and obscenity involving articles sent by post. The ordinary meaning of “indecent” – whether for this offence or the CCA 1876 provision – is “shocking, disgusting and revolting” (the formulation of Lord Reid in Knuller (Publishing, Printing and Promotions) Ltd. and Others v Director of Public Prosecutions [1972] 3 W.L.R. 143). 

It is triable summarily or on indictment. The maximum sentence is twelve months’ imprisonment and/or an unlimited fine. 

Evidential considerations – CEMA 1979 offence

At the present time, the UK is a party to the EEC Treaty which does not permit prohibitions or restrictions on importation in relation to goods whose sale is not also prohibited or restricted within the UK:

Henn and Darby v DPP [1981] A.C. 850; Conegate Ltd v HM Customs and Excise [1987] 1 Q.B. 254. As set out below, the sale of child-like sex dolls is caught by the OPA 1959, but on the basis that those dolls are obscene within the meaning of OPA 1959 (have a tendency to deprave or corrupt). Accordingly, the OPA 1959 definition of obscene, and not the ordinary meaning nor “indecent”, should be adopted when considering the CEMA 1979 offence for importation within the EU, but otherwise the ordinary meaning of the words “indecent” and “obscene” applies. The phrase “obscene” will henceforth be used as defined by the OPA 1959. 

Two elements of the offence contrary to section 170(1) CEMA 1979 fall to be considered: “obscene”, and “knowing acquisition”. 

When assessing obscenity, prosecutors should consider: 

  1. Firstly, whether or not the doll has been created for sexual use; 
  2. Secondly, whether or not the doll has sufficient characteristics of a child that it is plainly to be looked at and used for its childlike appearance?
  3. Thirdly, is the article obscene? 

When assessing whether or not the doll has been created for sexual use, consideration should be given to any evidence concerning the purpose for which it is marketed; any features which are consistent with use for sexual gratification; any accompanying paraphernalia indicating that sexual activity is to take place. 

When assessing whether or not the doll has childlike features, prosecutors should consider whether the nature and quality of the childlike features mean – whatever other characteristics are also present – the doll unquestionably embodies childlike features.

This involves an exercise in judgment about what a jury is likely to conclude about the appearance of the doll. Expert evidence as to age or appearance, or obscenity, is not admissible and should not be sought. This is consistent with the position in respect of indecent images of children, where the age of a child is a finding of fact for the jury to determine and expert evidence is inadmissible: R v Land [1997] EWCA Crim 2409; and the position concerning expert evidence of obscenity confirmed in Calder and Boyars Ltd [1969] 1 QB 151. Nor is it permissible to use other evidence, such as other material suggesting a sexual interest in children (for instance, indecent images of children), when assessing whether the doll is, objectively and of itself, obscene. Neither the motive of the person possessing/importing, nor the existence of material external to the doll, is relevant or admissible on this question, by analogy to Graham-Kerr 88 Cr App R 302 and Smethurst [2002] Cr App R 6. 

The evidence as to whether child-like sex dolls in fact encourage or discourage a person from progressing to offending against children is inconclusive (and expert evidence inadmissible on this point) and so prosecutors cannot therefore rely on an assumption that either will follow when assessing obscenity (as defined by the OPA 1959), or obscenity or indecency when considering importation from outside the EU. Prosecutors should consider instead the use and appearance of the doll. 

The prosecution must also prove that the defendant knew that the goods which had been imported, and which he acquired possession of, were goods subject to a prohibition or a restriction. The prosecution is not required to further prove that a defendant knew the precise category of goods the importation of which had been prohibited: R v Hussain [1969] 2 Q.B. 567, 53 Cr.App.R. 448. Knowledge, however, must be proved. As possession of a childlike sex doll is not unlawful per se in England and Wales, prosecutors should start from the position that, without more, a suspect may not know its importation is unlawful. Prosecutors will need to consider this element of the offence carefully. They may in particular focus upon: 

  1. What the evidence concerning the purchase is: were there warnings about potential prohibitions on importation on the website? Were there other indications about its illicit nature? Or did the offer for sale allow a person to conclude that the doll could lawfully be imported? What information is available as to the type of website from which the goods were purchased? What other types of goods were being offered for sale on the website? Was the website available on an openly accessible part of the internet? Was information provided as to any particular measures that would be used to package and send the item? Has any information about the purchaser’s communications with the seller been obtained? By what means was the doll imported? 
  2. How plainly obscene is the article? The more obviously a child doll, particularly a clearly young or very young doll, and one to be used for sexual purposes, the greater the inference that the suspect did in fact know it was subject to a prohibition. That is particularly the case when inspected upon receipt: the doll having been imported, is the inference plain that the person upon acquiring it must have known that it was a prohibited or restricted article? 

Evidential considerations – OPA 1959 offence

This legislation seeks to criminalise those who make material, which has a tendency to deprave or corrupt its audience, available to others. 

A childlike sex doll is capable of being an article embodying matter to be looked at, and thus an article within the meaning of the Act. In Conegate Ltd. v H.M. Customs and Excise [1987] 2 W.L.R. 39 a concession was made that adult sex dolls were not obscene articles. This concession does not prevent prosecutors from contending that childlike sex dolls are obscene articles. 

A person who distributes or sells a childlike sex doll, or has it for distributing or selling for gain, is capable of publishing it within the meaning of the Act. While section 1(3)(b) provides an alternative way in which an article embodying matter to be looked at may be published, it is upon the alternative provision in section 1(3)(a) that a person may be said (using the wide terms of the OPA 1959) to have published an article. Publication may need only be to one person and may include paedophilic fantasy: R v Gavin Smith [2012] EWCA Crim 398. 

As with “article” and “publish”, prosecutors must apply the definition provided for by the legislation when assessing the question of “obscene”. This is distinct from other legislation, including the CCA 1876, which does not define this word and whose ordinary meaning applies. 

In this context, prosecutors must consider the evidence that the likely recipient of the childlike sex doll may be depraved or corrupted. Regard may be had at this stage to the other evidence in the case, whether the doll was to be used to satisfy a sexual interest in children and the likelihood that it would be limited to the doll or to child sexual offences. A defence based on an argument that the likely audience is already depraved or corrupt is unlikely to succeed. The Act is not merely concerned with the once and for all corruption of the wholly innocent; it equally seeks to protect the less innocent from further corruption, the addict from feeding or increasing his addiction: Whyte [1972] 3 All ER 12.  Prosecutors should note, and go on to consider if appropriate, the statutory defence provided for by section 2(5) OPA 1959: 

“A person shall not be convicted of an offence against this section if he proves that he had not examined the article in respect of which he is charged and had no reasonable cause to suspect that it was such that his publication of it would make him liable to be convicted of an offence against this section.” 

Public interest considerations

In addition to considering the public interest factors tending in favour of, and against, a prosecution in the Code for Crown Prosecutors, prosecutors will also have regard to the following.

The seriousness of this offending is its potential link to sexual offending against children. However, as set out above, it cannot be assumed that this will follow nor is there conclusive evidence that this is the case. Further, as the court in Dobson [2017] EWCA Crim 2435 observed: “whilst there is a clear public policy in deterring those who sustain the market in [indecent images of children] ….the position may be different whose activities are restricted to using dolls for their own private sexual pleasure”. Notwithstanding that prosecutors are entitled to reach a conclusion that childlike sex dolls may have a tendency to deprave or corrupt, on the particular facts of the case they are dealing with, they should not base their decisions at either the evidential or the public interest stage on a general and more serious ground that possession of a doll will lead to more serious offending. 

Where there is other evidence that the suspect was furthering a sexual interest in children, such as relevant communications or indecent images of children, that will be a further factor tending in favour of a prosecution. The absence of any other evidence or offending demonstrating a sexual interest in children and/or that the doll was not likely to come into contact with any other person will be a factor or factors tending against a prosecution. The age of the doll may also be relevant: the younger its apparent age, the greater the public interest in prosecuting.