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Combating the sexual abuse and sexual exploitation of children and child pornography
The European Union (EU) adopts legislation aimed at combating sexual offences committed against children. The Directive covers different aspects such as sanctions, prevention, and assistance for victims. Specific provisions are provided concerning child pornography on the Internet and sexl tourism.
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating sexual abuse and sexual exploitation of children, and child pornography, replacing the Council Framework- Decision 2004/68/JHA.
This Directive harmonises throughout the European Union (EU) criminal offences relating to sexual abuse committed against children, the sexual exploitation of children and child pornography. It also lays down the minimum sanctions. The new rules also include provisions aimed at combating child pornography on-line and sex tourism. Furthermore, it aims to prevent paedophiles already convicted of an offence from exercising professional activities involving regular contact with children.
Offences and sanctions
Some twenty criminal offences are identified by the Directive divided into four categories:
- sexual abuse, such as engaging in sexual activities with a child who has not reached the age of sexual consent or forcing them to submit to such activities with another person;
- sexual exploitation, such as, for example, coercing a child to engage in prostitution or to participate in pornographic performances;
- child pornography: , possessing, accessing, distributing, supplying or producing child pornography;
- the solicitation of children on-line for sexual purposes: , proposing, via the Internet, to meet a child for the purpose of committing sexual abuse and, through the same means, soliciting the child to provide pornographic material of themselves.
At national level, the maximum terms of imprisonment must, at the least, meet certain thresholds ranging from one to ten years depending on the seriousness of the offence and depending on whether or not the child has reached the age of sexual consent. Incitement to commit an offence is also punishable.
A legal person may be held liable and sanctioned if the offence is committed for their benefit by a person who has decision-making powers. .
Several aggravating circumstances are provided for, specifically when the offence is committed against a particularly vulnerable child, or by a member of the child’s family, or where a person has abused a position of trust or authority, or also where the offender has previously been convicted of offences of the same nature
With regard to consensual sexual activities, the Directive leaves it to the discretion of Member States to decide whether or not certain practices are punishable where they involve persons who are close in age and in their degree of psychological and physical development or maturity, and which may be regarded as the normal discovery of sexuality.
Professional activities involving contact with children
In order to avoid any risk of recidivism, a person convicted for one of the offences defined by this Directive must be prevented from exercising employment involving direct and regular contact with children.. The employers concerned must be able to request information on the existence of a conviction or a disqualification from exercising this type of employment. This information must also be sent to other Member States in order to prevent a paedophile from taking advantage of the free movement of workers within the EU by working with children in another country.
The organisation of trips aimed at committing acts of sexual abuse, sexual exploitation of children, and also child pornography, must also be banned. As these crimes often go unpunished in the countries where they took place, this Directive provides that Member States can try their citizens for offences of this type committed abroad.
Furthermore, along with their competency when an offence is committed on their territory or by one of their nationals, Member States may also extend their competency to offences committed abroad when the offender of the crime regularly resides in their territory, or if the offence has been committed on behalf of a legal person established in their territory, and also when the victim is one of their citizens.
Child pornography on the Internet
Member States must also ensure that child pornography sites hosted within their territory are promptly removed and must strive to remove those hosted abroad. Furthermore, under certain conditions regarding transparency and Internet user information, they have the possibility to block access to these sites in their territory.
Investigations, prosecutions and competencies
Investigations and prosecutions concerning offences must not solely depend on a report or accusation being made by the victim, and criminal proceedings must be able to continue even if that person has withdrawn his or her statement.. Furthermore, for the most serious offences, prosecutions must be possible for a sufficient period of time after the victim has reached the age of majority.
Assistance, support and protection for victims
In accordance with the provisions provided for by the Directive on the standing of victims in criminal proceedings, assistance and support must be provided to victims before, during and after criminal proceedings.. Child victims of sexual abuse, sexual exploitation or child pornography are considered as particularly vulnerable victims and must be treated in a manner which is most appropriate to their situation.
Specific protective measures will be taken, in particular, when the offender is a member of the child’s family. In addition, young victims must have, without delay, access to free-of-charge legal advice and representation, if required. Furthermore, the assistance and support provided must not depend on their willingness to cooperate in the investigation or the legal proceedings.
Specific programmes aimed at reducing the risks of recidivism must be proposed to persons convicted or prosecuted for sexual offences against children. These persons must also be assessed to determine the danger they pose and the risks of recidivism.
This Directive replaces Framework-Decision 2004/68/JHA. Given that some victims of human trafficking are also child victims of sexual abuse or sexual exploitation, this Directive also supplements the Directive on preventing and combating trafficking in human beings.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 335 of 17.12.2011