Anyone who distributes or owns videos and photos showing sexual violence against children is “complicating the worst abuse of children,” according to a draft law of the then grand coalition two years ago. With this justification, it was enforced that the possession of so-called child pornographic content regulated in Section 184b of the Criminal Code and its distribution was upgraded from a misdemeanor to a crime. In May 2021, the Federal Council approved the tightening of the law.
Since then, a minimum prison sentence of one year has applied. Due to the classification as a crime, the discontinuation of proceedings is excluded, even if the public prosecutor’s office does not consider the specific case to be punishable. With an increase in the range of penalties, “the assessment of such acts as serious injustice should be made more clear in the structure of the penal framework and the courts should be given sufficient room for maneuver to punish such acts appropriately,” the draft law from the CDU/CSU and SPD said at the time.
However, an “appropriate punishment” is highly questionable due to the tightening of the penalty. According to the “Süddeutsche Zeitung”, a former rape victim was recently the focus of the investigative authorities because the woman had saved photos on her cell phone that the perpetrator had sent her and handed over to the police as evidence.
A man who had a photo of his naked newborn son saved on his phone’s lock screen. Teens who send nude photos to each other. Or a mother who screenshotted a chat of her eight-year-old daughter receiving a photo of a classmate’s privates while homeschooling. The mother sent the photo to a parent chat – as a warning about what content is being shared by the students.
In this case, a Munich district judge was supposed to negotiate, the public prosecutor’s office had written an indictment for the distribution of child pornographic content. However, the district judge does not want to apply the new law with the one-year minimum sentence and has appealed to the Federal Constitutional Court with a judicial review request. He considers it unconstitutional that there is no longer a “less serious case” and that the proceedings can therefore no longer be discontinued due to insignificance.
Last year, the police in Germany found significantly more depictions of child abuse than in 2020. According to the new crime statistics, more and more minors are among the perpetrators.
Source: WORLD / Peter Haentjes
With the tightening of the penal norm, the legislature has “shot far beyond the target”, since “relatively insignificant” or even “extraordinarily harmless” cases have to be prosecuted as crimes, the district judge writes in his application to Karlsruhe, according to the “Legal Tribune” portal On-line”. With this classification as a crime, there are further consequences: a procedure before the lay judge is mandatory, and in every procedure the accused must be assigned a public defender.
All of these points were warned of in the legislative process by numerous experts in the Bundestag and later by several federal states in the Bundesrat. For example, the statement by the criminology professor Arthur Kreuzer says: “What an immeasurable potential for denunciation this offers to numerous young Internet users who, for example, engage in ‘sexting’ in social media and know what can be found on other people’s hard drives and can be classified as child pornographic material .”
Sexting means the digital exchange of erotic and sexual messages, photos and videos. If boys and girls under the age of 14 record themselves having sex or masturbating, the recordings are considered child pornography, the possession of which is a criminal offense after reaching the age of criminal responsibility. An amendment by the Greens that there is a less serious case without a minimum penalty if “the child made the image himself and passed it on” was rejected in the legislative process last year.
According to police crime statistics, in 2021 almost 40 percent of suspects in the digital distribution of child pornography were children and young people. Ralf Kölbel, Professor of Criminal Law and Criminology at the Ludwig-Maximilians-University in Munich, says: “The excessiveness obsessed with punishment is the result of a populist debate about tightening criminal law in sexual criminal law.”
Sexting is part of youth culture. “You can find that good or bad, but it’s just the way it is.” Kölbel’s suggestion: “If young people exchange pictures with each other, criminal liability should be linked to certain conditions, for example that this is done for extortion purposes or used for bullying . But not when it comes to an element of sexual development.”
Several federal states are now suggesting that the tightening of the law be reversed. At the conference of justice ministers taking place on November 10th, the state of Brandenburg will present a corresponding proposal for a resolution. This calls on the Federal Ministry of Justice to submit a draft law that downgrades the elements of paragraph 184b paragraph 1 of the Criminal Code as a misdemeanor or provides for a regulation for less serious cases.
“The concern to sanction the indirect promotion of the sexual abuse of children through the distribution of child pornography continues to deserve unreserved approval,” said Brandenburg Minister of Justice Susanne Hoffmann (CDU) WELT. With the new regulation, however, failure to delete a picture sent unintentionally to the recipient in good time or possession by supervisors is generally subject to a minimum prison sentence of one year. “In order to comply with the constitutionally justified requirement of proportionality and to eliminate contradictions in valuation, there is an urgent need to correct the threat of punishment in accordance with the respective unlawful content of the offence,” Hoffmann continued.
WELT asked around in the justice ministries of several countries – and mostly found approval for the draft resolution. “Hessen has always been committed to guaranteeing sanctions that are appropriate to the crime and guilt in individual cases,” according to the local justice department. Even before the tightening of the sentence, Lower Saxony’s attitude was that without the possibility of a less serious case, “unjustified criminalization – and thus victimization – of young people” would occur, according to a spokesman. Berlin, Saxony, Rhineland-Palatinate and Bavaria have explicitly announced that Brandenburg will support the application.
Rhineland-Palatinate’ Minister of Justice Herbert Mertin (FDP) said: “It is not the classification as a crime that protects the weakest in our society, but the prevention of opportunities for crime and consistent criminal prosecution.” The classification as a crime also put those at risk of criminal prosecution although they “act with the best of intentions and precisely to protect the children,” added a spokesman. The current regulation also ties up not inconsiderable resources in the law enforcement authorities and courts “in order to prosecute cases that are obviously not punishable,” according to North Rhine-Westphalia. These resources would be needed in the fight against sexual violence against children.
Voices from the traffic light coalition point to another change in the law. “We see the practical problems and considerable contradictions in valuation that the current version of paragraph 184b of the Criminal Code leads to,” said Sonja Eichwede, spokeswoman for legal policy for the SPD parliamentary group in the Bundestag. The protection of children and young people from sexual violence has absolute priority and must be done effectively.
Greens legal politician Canan Bayram said: “Public prosecutors and courts must have the opportunity to react to the various case constellations in a way that is appropriate to the facts and guilt.” these young people their future, Bayram continued. No statement on the subject could be obtained from the Union faction in the Bundestag.
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