Criminalising all forms of sexual exploitation and sexual abuse of children Ksenija Turković University of Zagreb

Added Value New crimes introduced – participation of child in pornographic performances, – corruption of children, – solicitation of children for sexual purposes The scope of traditional offences is widened or more precisely defined – clients incriminated for prostitution; – refers to all types of pornography not only computer based – Punishable is intentional access to pornographic material on Internet or by use of IT Aggravating circumstances defined – Abuse of children within family – Recidivism Period of limitation is extended (leave children enough time after becoming of legal age to sue) Separate chapter on crimes of sexaul abuse and sexual explotation introduced New crimes introduced – Th e same The scope of traditional offences is widened or more precisely defined – The same Aggravating circumstances defined – The same exept for rrecidivism Period of limitation is extended (starts with age 18 for certain number of crimes committeed against the child)

Sexual Abuse of Children: 1st type Statutory rape (sexual relation with the child below the age defined in national law) The term “sexual activities” is not defined by the Convention – left to Parties the definition of the meaning and scope of this term The prosecution of non-consensual sexual acts in all circumstances is not sought The Convention does not aim to govern consensual sexual activities between minors, even if they are below the legal age for sexual activities. It is left to Parties to define what a “minor” is Only intentional conduct is criminalised The negotiators did not consider it appropriate to introduce into the Convention provisions concerning awareness or ignorance, by the alleged perpetrator of the offence, of the victim’s age. Statutory rape (below the age of 15) – 1 to 10 years Sexual activities: – sexual intercours and with it comparable sexual activity; – inciting to commit sexual activity with the third person – incting to commit sexual activity on him/herself All non-consensual sexual acts considered as sexual abuse Sexual activities between children (those younger than 18) are not prohibited if the difference in age between them is not greater than 3 years. Only direct & indirect intnet are punishable Ignorance of the victim’s age – if it is avoidable the punishment is diminished (6 mon. to 5 years)

Sexual Abuse of Children: 2nd type Ccriminalises engaging in sexual activities with a child, regardless of the age of the child, where use is made of: – coercion, force or threats, – when this person abuses a recognised position of trust, authority or influence over the child, – where abuse is made of a particularly vulnerable situation of the child. Child younger than 15 (3- 15 years imprisonment) Child older than 15 – considered voulnerable due to his or her age (3- 15 otherwise 1-10 years imprisonment) Child older than 15 in consensual relationship with the educator/member of family (6m-5y)

Child prostitution recruiting a child into prostitution or causing a child to participate in prostitution; coercing a child into prostitution or profiting from or otherwise exploiting a child for such purposes; having recourse to child prostitution where money or any other form of remuneration or consideration is given or promised as payment, regardless if this payment, promise or consideration is made to the child or to a third person New title Recruting (1-10 years) Coercing (3-15 years) Punishing clients equally as perpetrators Acknowleding aviodable mistake as to an age of a child – diminished punishment Same definition of child prostitution (for payment) Adwertisising of child pornography (6m-5y)

Child pornography inspired by the CE Convention on Cybercrime (Art. 9) The offence is not restricted to child pornography committed by the use of a computer system. the following intentional conduct, when committed without right, is criminalised: a.producing child pornography; b.offering or making available child pornography; c.distributing or transmitting child pornography; d.procuring child pornography for oneself or for another person; e.possessing child pornography; f.knowingly obtaining access, through information and communication technologies, to child pornography (added value). 3 reservations possible: -the production and possession of pornographic material: a) consisting exclusively of simulated representations or realistic images of a non-existent child; b) involving children who have reached the age for sexual consent where these images are produced and possessed by them with their consent and solely for their own private use -to paragraph f. Also criminalised: a.recruiting a child into participating in shooting of pornography or organising &enabling shooting of child pornography (inchoate crimes – equally punished as perpetration: 1-8y) b.If use is made of coercion, force or threats; or abuse is made of a recognised position of trust, authority or influence over the child, including within the family or abuse is made of a particularly vulnerable situation of the child or a situation of dependence in order to involve child in shooting of pornography – punishment is 3- 12y Only 2nd reservation introduced. Same definition - material having an artistic, medical, scientific or similar merit, i.e. where there is absence of sexual purposes, explicitly excluded. Introducing Pornography to Children – a separate crime (Whoever sells, donates, shows, publicly exhibits or otherwise makes accessible to a child younger than 15 the writings, pictures, audiovisual material or other objects of pornographic content or shows the child a pornographic performance - to 3 years).

The participation of a child in pornographic performances The following intentional conduct should be criminalised: a.recruiting a child into participating in pornographic performances or causing a child to participate in such performances; b.coercing a child into participating in pornographic performances or profiting from or otherwise exploiting a child for such purposes; c.knowingly attending pornographic performances involving the participation of children The provision is intended to deal essentially with organised live performances of children engaged in sexually explicit conduct Reservation: right to limit the application of paragraph 1c to cases where children have been recruited or coerced in conformity with paragraph 1a or b. a.Recruting (1-8y) Making profit out of pornographic performancies involving child or otherwise exploiting a child for pornographic performances (1-10y) b.Coercing (3-12y) c.Konowing attendance (1-8y) Does not define pornographic performances: involves the public & private, commercial & non-commercial performances. Not limited to organised live performances of children engaged in sexually explicit conduct. No reservation.

Corruption of children The intentional causing, for sexual purposes, of a child who has not reached the legal age for sexual activities to witness sexual abuse or sexual activities, without having to participate “causing” could include any way in which the child is made to witness the acts, such as by force, coercion, inducement, promise, etc. Similar - satisfying lust in the presence of a child younger than 15 – witnessing sexual activities (up to 1 y) – witnissing sexual abuse (up to 3 y) Attempt punishable (no reservation)

Solicitation of children for sexual purposes (grooming) The intentional proposal, through information and communication technologies, of an adult to meet a child who has not reached the legal age for sexual activities for the purpose of committing any of the offences established in accordance with Article 18, paragraph 1a (statutary rape) or Article 20, paragraph 1a (producing pornography) against him or her, where this proposal has been followed by material acts leading to such a meeting. The offence can only be committed “through the use of information and communication technologies”. Other forms of grooming through real contacts or non-electronic communications are outside the scope of the provision. Limited to statutary rape (up to 3 y) Grooming for pornography covered by article on pornography – no material act required Not limited to use of information and communication technologies Collection of data on children younger than 15 in order to enable another person commission of grooming is punishable (up to 1y) Attempt punishable (no reservation)

Aggrevating circumstances a.the offence seriously damaged the physical or mental health of the victim; b.the offence was preceded or accompanied by acts of torture or serious violence; c.the offence was committed against a particularly vulnerable victim; d.the offence was committed by a member of the family, a person cohabiting with the child or a person having abused his or her authority; e.the offence was committed by several people acting together; f.the offence was committed within the framework of a criminal organisation; g.the perpetrator has previously been convicted of offences of the same nature These circumstances must not already form part of the constituent elements of the offence. This principle applies to cases where the aggravating circumstances already form part of the constituent elements of the offence in the national law of the State Party. Aggravating circumstances are available for judges to consider when sentencing offenders, although there is no obligation on judges to apply them. Aggrevated offences – increase of punishmentn (3- 15y, not less than 5y) Additional circumstances taken into consideration in defining the aggrevated offence: – Impaired emotional development of the child – The child remained pregnant – Death of a child (not less than 10y ) Only aggraveted circumstances (may be considered by judge within the proscribed basic punishment) – Recidivism