Youth pornography

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In German criminal law, the term youth pornography describes pornographic depictions of people over the age of 14 and under 18 ( young people ). The procurement, possession and distribution of such representations can be punishable under Section 184c of the Criminal Code. The maximum sentence is three years imprisonment . Such representations are mostly forbidden in other legal systems as well, but are rarely referred to with the term “youth pornography”.

Legal situation in Germany

Legislative decision

On November 5, 2008, the law implementing the framework decision of the Council of the European Union on combating the sexual exploitation of children and child pornography came into force. Article 1 of this law introduced the new Section 184c of the Criminal Code, which for the first time regulates the criminal liability of youth pornography ("youth pornographic writings") . Previously, in Germany, only child pornography was regulated by Section 184b of the Criminal Code under criminal law. The two paragraphs are largely identical and are presented in the article child pornography in the chapter German law in more detail and also comparatively.

A tightening came into force on January 27, 2015. The term youth pornography now includes pornographic representations that show “sexual acts by, on or in front of young people” or “completely or partially unclothed young people in unnaturally gendered postures”.

prehistory

In Germany, the federal government only introduced a draft law at the end of 2006 that was supposed to implement the requirements of the EU framework decision. At the instigation of the opposition parties, the Legal Committee of the German Bundestag initially held an expert hearing in June 2007, at which lawyers were given the opportunity to comment on the draft law. Due to the criticism that was now also expressed at this hearing, the implementation of the framework decision in Germany was initially further delayed and resulted in a conflict between the politicians of the governing parties CDU / CSU and SPD on the one hand and those of the opposition parties FDP , GRÜNE and DIE LINKE on the other , which then went public in December 2007 in order to prevent the law in this form. After public criticism of the planned expansion of sexual criminal law had arisen, the grand coalition once again postponed the draft law and agreed to several changes in the wording that should take the criticism into account. The politicians of the opposition parties still firmly opposed the draft law in this moderate version.

However, the law was passed by the Bundestag on June 20, 2008, only with the votes of the government majority and against the votes of all opposition parties. There was no public debate in the plenary session and the speeches were merely recorded.

Opposing positions

One of the critical points of the new regulation is that pornographic images and films in which only adults are used could now be classified as youth pornography if they can be interpreted in such a way that they only deal with sexual acts with young people ("To the subject") . That would always be possible if the adults appear like young people - so-called pseudo- youths .

The extension of the term child pornography to representations of sexual acts by young people suggested by the EU framework decision was already heavily criticized in 2001 by the German Society for Sexual Research, claiming that it was a “massive, far-reaching criminalization of the sexuality of young people” .

In particular, the criminalization of images showing actors with a “youthful appearance” is sharply criticized. The criticism is based primarily on a lack of legal security for providers of pornography with adult performers, which is why the adult entertainment provider Hustler has filed a constitutional complaint.

While in the context of child pornography, due to the age difference between children (under 14) and adults (over 18), it is rather unlikely that the representations of adults (because of their younger appearance) are interpreted as depicting the actions of children this will become the norm in the field of youth pornography for a diffuse group of young adults. At what distance from the age of exactly 18 this interpretation can then be safely ruled out will often be difficult to determine in individual cases, both for lawyers and laypeople. This results in considerable legal uncertainty for producers of pornographic image and film material when they are asked to select actors for their productions.

Private individuals are not liable to prosecution as long as they only have porn films and pictures with pseudo-youths (legal before the law was tightened) ; however, any distribution is now prohibited. This not only includes commercial reproduction or public demonstration, but also private distribution among friends. The previously legal procurement of such material is now also a criminal offense.

consequences

The then German Justice Minister Brigitte Zypries commented on the problem a few months before the law was passed in the parliamentary watch as follows: "In relation to the category of 'bogus young people', this means that youth pornography is present if, from the point of view of a sensible observer, it cannot be safely excluded, that the actors are young people. "

The Federal Constitutional Court later contradicted this, although it considered the previous case law of the Federal Court of Justice on the criminality of child pornography (according to Section 184b of the old version of the Criminal Code) to be transferable to the new criminal offense of youth pornography. It did not accept several lawsuits against the new paragraph for decision because it considered it unlikely that the term “pseudo minor” posed a serious risk of criminal liability .

In contrast to the German Justice Minister, the Federal Constitutional Court assumes that according to the new criminal provision it is not sufficient “that the age of majority of the person concerned is doubtful for the objective observer; On the contrary, the observer would have to come to the unequivocal conclusion that young actors are involved. ” The court specifically cites as a possible sufficient criterion - with regard to the actors - “ if they (almost) still seem childish and the films thus come close to depictions that fall under the criminal offense of § 184b StGB as (bogus) child pornography . ” This excludes the criminal liability for actors who, according to their appearance, could only be young , but also of legal age , and limits them to (at most) those cases in which it seems impossible to consider actors as adults - even if their actual ages are known and they are of legal age. It also restricts these cases even further with regard to willfulness - on the part of the manufacturer - and only allows those cases to be considered punishable in which the fiction of pseudo youthfulness is deliberate .

statistics

The following table lists criminal cases known to the police or the public prosecutor . In all cases, an attempt is made to identify a suspect . If the criminal proceedings are not discontinued , the suspect is tried in court : In 2012, 112 people were sentenced in accordance with Section 184c of the Criminal Code, 91 people were convicted , imprisonment was imposed in 16 cases and in 4 cases without parole . The sentences ranged up to 2 years.

Police crime statistics - number of criminal cases due to § 184c StGB
source
key Section 184c StGB Offense 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009
143500 all Distribution, acquisition, possession and production of adult pornographic publications 1,604 1.306 1,056
143700 Paragraph 1
(2008 version) 		Spread of JP 0597 0590 0447 0247 0321 0271 0160
143510 Paragraph 1 Distribution, Acquisition, Ownership, and Manufacturing of JP 0895 0734 0563
143530 Paragraph 3 Possession or procure from JP 0699 0559 0490
143600 Paragraphs 2 and 4
(2008 version) 		Possession / procurement of JP 0548 0506 0400 0272 0400 0310 0186
143511 Paragraph 1 No. 1 Spread of JP 0646 0586 0464
143512 Paragraph 1 No. 2 Procurement of property for others from JP 0117 0047 0024
143513 Paragraph 1 No. 3 Production even without the intention of dissemination with actual events by JP 0054 0050 0050
143514 Paragraph 1 No. 4 Manufactured with distribution intent by JP 0078 0051 0025th
143520 Paragraph 2 Distribution and production of JP on a commercial / band basis 0010 0013 0003
143500 Paragraph 3
(2008 version) 		Dissemination of youth pornographic writings (products) through commercial / gang behavior 0012 0009 0009 0008th 0007th 0006th 0011

Legal situation in Austria

In Austrian federal law, there are the terms of minority (before the age of 14) and minority (before the age of 18). People between these ages are referred to as “responsible minors”. This corresponds to the German legal term of a young person.

Definition of youth pornography

Since May 1, 2004, youth pornography has been dealt with together with child pornography in Section 207a of the Austrian Criminal Code . For this purpose, the previously existing paragraph on pornographic representations of minors was expanded. Although it is listed as only one offense, the definition of the criminal offenses in relation to responsible minors differ significantly.

Realistic images of the genitals or the pubic area, a sexual act or an event which, depending on the circumstances, give the impression that this is a sexual act on or with a responsible person are considered pornographic representations . All of these three points, however, only apply with the restriction that they must be sensationally distorted, reduced to themselves and detached from other expressions of life, which serve the sexual arousal of the viewer.

Representation can relate to images that reproduce a real action or a real event in real people or real people (i.e. photos and videos) as well as virtual images (such as computer animations). While German law generally speaks of writings , i.e. also includes text, pure text works (such as the book Josefine Mutzenbacher ) are not punishable under Austrian criminal law. Realistic a picture or illustration, then,

"When it reaches a level in terms of reproduction quality and recognizability that is generally referred to as photographic in the sense of documentary, that is, gives the viewer the impression of being an eyewitness."

- Explanatory notes on the 2004 Criminal Law Amendment Act

Penalty limits

In Austrian criminal law, for acts in connection with pornographic representations of minors, the same penalty framework for representations of minors and adults is generally provided, as a distinction is made instead in the definition of the representations. The penalty limits differ only in relation to possession of pornographic images.

action depicted minors depicted mature
Possession (also attempt to obtain possession), knowledgeable access on the Internet Up to two years' imprisonment Imprisonment of up to one year or a fine of up to 720 daily rates (*)
Production, distribution up to three years imprisonment (*)
Manufacture, transport if commercially or for the purpose of dissemination six months to five years imprisonment
Establishing and disseminating as a member of a criminal organization, in the case of a particularly serious disadvantage for the minor;
Production using severe force and in the event of grossly negligent endangerment of the life of the person depicted 		one year to ten years imprisonment

* An exception to this rule is anyone who produces or owns a pornographic depiction of an adult minor “with their consent and for their or their own use”. Likewise, whoever disseminates such a representation of himself is excluded.

There have been few changes since its introduction in 2004. At the beginning of 2009, Section 207a was supplemented by Paragraph 3a, which, in addition to the production, distribution and possession, also makes knowingly accessing pornographic depictions of minors on the Internet a criminal offense. With the criminal law reform of 2016, the distribution of pornographic representations of oneself was legalized, and the possibility of a fine was created for possession and access of youth pornography. In the former, the government invokes EU Directive 2011/93 / EU, and implemented the latter as a standardization of criminal provisions of the entire StGB.

Pseudo minors hardly play a role in the current version of the law. However, in April 2010 the Supreme Court ruled against a man who was in possession of material that can only possibly be described as youth pornography. The expert came to the conclusion that the young men were between 16 and 21 years old. That was enough for a conviction.

Legal situation in other countries

In many legal systems, child and youth pornography are treated together. While German and Austrian law set clear differences in the assessment of the sentence, this is not the case in the USA , for example .

literature

  • Heidi Gerlinger: longing for love? an analysis of the phenomenon of child prostitution. Verlag der Jugendwerkstatt, Östringen 1994, ISBN 3-925699-22-8 .
  • Michael Schetsche: Internet crime. Data and discourses, structures and consequences. In: Martina Althoff u. a. (Ed.): Between anomie and staging: interpretations of the development of crime and social control; in memory of Detlev Frehsee. Nomos VG, Baden-Baden 2004, ISBN 3-8329-0561-8 , pp. 307-329.
  • Gisela Wuttke: child prostitution, child pornography, tourism. Lamuv, Göttingen 1998, ISBN 3-88977-531-4 .
  • Dirk Wüstenberg: Changes in criminal law regarding pornographic writings with children and young people in Germany. In: Archive for Copyright and Media Law (UFITA). 2009, pp. 497-517.

Web links

Individual evidence

  1. ^ German Bundestag: Hearing of child pornography , June 2007
  2. ↑ Multimedia und Recht 2007, Issue 8, XIV: Expert hearing on the draft law «Combating child pornography»
  3. ^ Spiegel Online: Fumbling forbidden , December 10, 2007
  4. ↑ Stern: Petting paragraph: "The federal government is prudish" , December 11, 2007
  5. ↑ Focus Online: There is also anger in the Union . , December 12, 2007
  6. ^ German Bundestag: Recommendation for a resolution and report by the Legal Committee . (PDF; 372 kB). June 18, 2008
  7. ↑ Weblog age of consent: speeches given for the record , June 25, 2008
  8. ↑ German Society for Sexual Research: Opinion on the draft of the Council of the European Communities to combat the sexual exploitation of children ( Memento of the original from May 31, 2013 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / dgfs.info archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 35 kB) , 2001.
  9. ↑ pornoanwalt.de
  10. ↑ a b Answer from Brigitte Zypries of July 3, 2008 to Tobias Riepe: http://abektivenwatch.de/brigitte_zypries-650-5639--f117677.html#frage117677
  11. ↑ a b techno_lex Attorneys at Law: Requirements of "pseudo minority" for youth pornographic writings according to [https://www.gesetze-im-internet.de/stgb/__184c.html § 184c StGB ], Federal Constitutional Court decision of December 6, 2008, Az .: 2 BvR 2369/08; 2 BvR 2380/08
  12. ↑ Pseudo-youths - no serious risk of criminal liability. ( Memento from November 24, 2009 in the Internet Archive )
  13. ↑ Prof. Dr. Jörg Eisele, September 12, 2014, Tübingen: Written statement on the public expert hearing of the 2nd committee of inquiry of the German Bundestag for the 18th electoral term
  14. ↑ a b PKS 2018 with data from 2017
  15. ↑ PKS 2016
  16. ↑ a b c d e f g BKA PKS time series overview of case tables
  17. ↑ a b c A change in § 184c resulted in a new assignment of the criminal offenses to paragraphs, which is why there was also a change in the key, see pages 20 , 21 , which is explained in more detail in the information on the time series for the PKS 2016 .
  18. ↑ Explanatory notes on the 2004 Criminal Law Amendment Act (PDF; 260 kB)
  19. ↑ Federal Law Gazette I No. 40/2009
  20. ↑ Federal Law Gazette I No. 112/2015
  21. ↑ Explanations of the Criminal Law Amendment Act 2015, pp. 1 and 38
  22. ↑ Maybe youth porn. ( Memento from November 3, 2010 in the Internet Archive ) on gaywien.at from April 16, 2010. Accessed on May 12, 2011.