Last week the CPS published guidance on prosecuting cases of childlike sex dolls.

The introduction of CPS guidance on this topic is to be welcomed, given the uncertainties as to the legal status of sex dolls. The CPS recognise that “there is no offence of simple possession of a childlike sex doll” but, as the Guidance sets out, individuals can be prosecuted for importing, selling or distributing childlike sex dolls.

The Guidance outlines the statutory framework of the offences which the CPS consider could be engaged by the importing, selling or distributing of sex dolls. These are:

(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.

The Guidance requires a broad interpretation of the existing legislation in order to allow for prosecutions of childlike sex dolls. The statutory offences which the CPS suggest could be used were clearly not drafted with the criminalisation of sex dolls in mind. Rather, they were drafted with the intention of criminalising indecent or obscene articles generally. Therefore, Prosecutors are required to stretch the bounds of existing legislation in order to criminalise importing, selling or distributing childlike sex dolls. Whether the CPS’ analysis of the legislation is correct may yet be the subject of scrutiny by the higher courts.

However, the key issue for investigators, prosecutors and those who import or possess sex dolls is whether a sex doll is “childlike” in nature. This is the decisive factor as to whether or not a prosecution is capable of being initiated - and the central issue upon which some elucidation is required. Yet, it is on this very issue that the Guidance falls short. On the key issue, the Guidance provides an unclear and circular description:

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.”

This opaque statement is of little assistance to anyone in determining whether a doll is “childlike” in nature. It says nothing of the types of types of physical features which may lead to a conclusion that a doll either has the appearance of an adult, or a child. One might expect that at the very least, the Guidance would provide an indication as to whether or not size and proportions of bodily features should be taken into account.

The inescapable difficulty in prosecuting these cases is that there is no specific criminal offence that is designed to be used to criminalise sex dolls. The consequence of using ill-suited and antiquated criminal offences to criminalise a twenty first century issue is that the law does not fit neatly to the circumstances – and hence providing meaningful guidance or clarity is difficult. This does not sit comfortably with the concept of legal certainty.

As a result, CPS lawyers, investigators and individuals are still left to guess as to whether a sex doll may the subject of a prosecution, or not.