The United States and Its Obligations Under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography to Combat Child Exploitation in the Digital World

• Jurisdiction: United States,Federal
• Citation: Vol. 50 No. 3
• Publication year: 2022
• topic: Technology

The United States and Its Obligations Under The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography to Combat Child Exploitation in the Digital World

Audrey Cunningham^*

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TABLE OF CONTENTS

I. INTRODUCTION..............................................................................672

II. THE PROBLEM OF CHILD EXPLOITATION IN THE DIGITAL WORLD... 674

A. Child Exploitation Generally......................................................674
B. The Issue of Cyberenticement, Solicitation, and Online Grooming... ..............................................................................675
C. Children as Unique Victims........................................................676
D. Typical Profile of Victims...........................................................677
E. Typical Profile of Offenders.......................................................678
F. Implications of Technology for Children....................................679
G. Implications of Technology for Offenders...................................680
H. Implications for Law Enforcement..............................................682
I. The US Federal Law Response......................................................683

III. INTERNATIONAL LAW APPLICABLE TO CHILD EXPLOITATION........686

A. The International Law Response................................................686
B. The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography ..688

i. Optional Protocol Definitions...................................................691
ii. State Obligations....................................................................691
iii. Jurisdiction.............................................................................692
iv. State Cooperation and Victim Services....................................692

C. Draft General Comment No. 25..................................................692

i. Research....................................................................................693
ii. Balance of Interests................................................................693
Hi. Strategy! and Action Plans.......................................................694
iv. Funding..................................................................................695
v. Private Parties........................................................................695

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vi. Remedies and Victim Services.................................................695

IV. THE APPROACH OF THE UNITED STATES FAILS TO SATISFY OBLIGATIONS IT UNDERTOOK BY RATIFYING THE OPTIONAL PROTOCOL.. 696

A. Prosecution of Offenders............................................................696
B. Investigation..............................................................................697
C. Education and Awareness..........................................................698
D. National Strategy.......................................................................699
E. Coordination..............................................................................700
F. Assessments...............................................................................701
G. Victim Services..........................................................................702

V. CONCLUSION.................................................................................703

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I. INTRODUCTION

Over the last twenty years, rapidly emerging technology helped enable online offenders to exploit and abuse children by means of internet practices like "cyberenticement," a term that refers to an offender's communications with a child, "solicitation," the making of a sexual request, and "grooming," the process by which an offender makes continued contact with the child to form a trusting relationship.¹ In 2000, the General Assembly adopted a treaty called the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography and implemented the treaty into force in 2002.² The Optional Protocol helps achieve certain goals relating to children's interests expressed in the principal treaty, the Convention on the Rights of the Child. That treaty is an international human rights treaty which enumerates children's rights. The General Assembly adopted the Convention on the Rights of the Child in 1989 and the treaty entered into force in 1990.³ States that ratified the convention are bound to the treaty by international law.⁴ States that signed but have not yet ratified the treaty are not bound to the treaty, but are obliged not to act contrary to the treaty's aims.⁵ The United States is a party to this treaty, and as such, must fulfill certain obligations to protect children's rights in the

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digital sphere. In the U.S. framework, there are federal statutes in place that criminalize different aspects of child sex trafficking.⁶

The international community is faced with unique challenges in combating child exploitation thanks to technological developments such as high-speed internet and smart phones.⁷ On August 13, 2020, the U.N. Committee on the Rights of the Child released Draft General Comment No. 25, which deals with children's rights relating to the digital environment.⁸ A general comment is the treaty body's interpretation of the treaty's provision, and its purpose is to clarify the duties and obligations of state parties to improve the implementation of the treaty provisions.⁹ In March 2019, the U.N. Committee on the Rights of the Child invited interested parties to submit comments on the concept note of the general comment and then in August 2020, the Committee invited interested parties to comment on the draft of the general comment.¹⁰ The Committee received 142 submissions from states, regional organizations, other U.N. agencies, and other private entities and individuals.¹¹ The most recent draft of the general comment, which will be referred to in this Note, was released on August 13, 2020. Draft General Comment No. 25 highlighted some of the new threats that children face online.¹²

The United States is failing to meet its obligation under the Optional Protocol with the current federal framework.¹³ Instead, Congress should consider a multifaceted approach that actively engages a variety of actors, including children, parents, governments, and private businesses to combat the problem.¹⁴

Part I of this Note will examine the issue of technology regarding child exploitation through cyberenticement, solicitation, and online grooming, as well as the U.S. legal framework for combating the issue. Part II will

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explore the Draft General Comment No. 25, as well as the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography and the U.S ratification of the treaty. Part III will discuss the pitfalls of the approach and what can be done to meet U.S. obligations under the treaty to better protect children from sexual exploitation. The Note will conclude that while the U.S. has made significant progress in combating child exploitation, the federal government can take more steps to fulfill its obligations under the treaty.

II. PART I: THE PROBLEM OF CHILD EXPLOITATION IN THE DIGITAL WORLD

This Note will first discuss child exploitation generally before examining the scope of the issue in the digital world and how offenders, victims, and law enforcement are affected by it.

A. Child Exploitation Generally

Child sexual exploitation is not a new practice; however, it is one that States have only recently started to address at the policymaking level beginning in the twentieth century.¹⁵

Child abuse focuses on the treatment of the victim while exploitation focuses on the benefit received by the offender.¹⁶ Exploitation is defined as "a situation or context in which an individual takes unfair advantage of someone else for his own ends."¹⁷ An individual guilty of sexually exploiting children is one who uses the child for their own sexual benefit, and they may do so indirectly, without ever touching the child.¹⁸

Child exploitation is unsurprisingly an extremely secretive phenomenon, which is in part why the behavior went unregulated and unpunished at an international level for so long.¹⁹ International law focuses primarily on commercial sexual exploitation which is a shockingly lucrative international industry and a massive financial incentive exists for those who prey on the most vulnerable in society.²⁰ For example, a single child pornography website can make as much as $1.4 million per month.²¹ However, a commercial element is not required for exploitation to exist.²²

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Offenders often exploit children for reasons like personal pleasure, a desire to have domination or control, and other reasons apart from financial gain.²³ Each motivation is not mutually exclusive, and the purposes of exploitation often coincide with one another.²⁴ While there are many types of online sexual exploitation, this Note will focus on the issue of cyberenticement, solicitation, and online grooming.

B. The Issue of Cyberenticement, Solicitation, and Online Grooming

Pursuant to the Convention on the Rights of the Child, a child is any human being under the age of eighteen, unless under the law applicable to the child, majority status is obtained earlier.²⁵ Child exploitation and abuse are broad categories, encompassing activities including but not limited to child trafficking, prostitution, and pornography.²⁶ This Note focuses on cyberenticement, solicitation, and online grooming, which are terms used collectively or interchangeably to describe communications made by adults to sexually abuse or exploit a child.²⁷

Cyberenticement usually involves offenders who use the internet to contact and communicate with a child with the goal of sexually...