Counteraction to Offenses against Sexual Self-determination of

Minors in Criminal Law of Germany

Ammar Abdul Karim Manna

, Naguib Ali Seif El Gumel

, and Maria Ivanovna Saifullina

Peoples' Friendship University of Russia, Department of Criminal Law, Criminal Procedure and Criminalistics, Moscow,

Russian Federation

University of Aden, Faculty of Law, Department of Criminal Law and Criminal Procedure, Aden, Republic of Yemen

Interregional Bar Association of Moscow, Moscow, Russian Federation

Keywords: Criminal law, counteracting crime, child pornography, youth pornography, procurement, possession of

pornographic written material involving children.

Abstract: This article focuses on the urgent problem of the rapid spread of child and youth pornography and the

involvement of children and young people in the pornography business. Paragraphs 184, 184b, 184c, 184d

and 184e of the Criminal Law of Germany, as well as rules on the reform of criminal law legislation

(Strafrechtreformgesetzte), laws amending the criminal law (Strafrechtsaenderungsgtsetze), and other laws

adopted between 1993 and 2020 have been analyzed for the purpose of a detailed description of the

dispositions of the norms governing criminal liability for the distribution, procurement, possession of child

pornography, as well as the creation of pornographic content through radio and television. The article also

explores the judicial practice of the German Federal Supreme Court (Bundesgerichtshof). The authors set

out to form a comprehensive understanding of German criminal law in the field of combating child and youth

pornography based on a study of German legal literature and an analysis of legislation and jurisprudence,

using such methods as dialectical-materialistic, historical, comparative law and legalistic.

1 INTRODUCTION

The dissemination of child pornographic material is

an issue today, both globally and in individual

countries. In Germany, for example, 7,449 cases were

initiated in 2018 for the illegal possession, production

and dissemination of pornographic material involving

children and minors. In 2019, there was a sharp

increase in illegal acts on the Internet, prompting the

Bundestag to take tough action against online child

pornography in January 2020.

The authors set out to form a comprehensive

understanding of German criminal law in the field of

combating child and youth pornography based on a

study of German legal literature and an analysis of

legislation and jurisprudence.

2 MATERIALS AND METHODS

The methodological basis of this article was the

dialectic materialism methodology of inquiry, based

on which the following methods were applied:

historical method, which made it possible to reveal

the specific features of the formation of German

criminal legislation in the area of protecting minors

from the effects of written pornographic materials

involving children and minors; the comparative law

method, which enabled the formation of the

institution under study in relation to the specific

historical and legal situation; the legalistic method,

which was used to clarify nature and significance of

the norms of the Criminal Code of Germany and other

regulations. The comparison also used the analytical-

comparative method, involving not only analysis of

the legal material compared, but also drawing certain

conclusions based on the comparisons.

3 RESULTS AND DISCUSSION

Protecting children and young people from the effects

of pornographic materials is a priority for the German

government, because the acts covered by §184,

§184b, §184c, §184d, §184e of the Criminal Code of

Germany infringe upon public morals and ethics of

394

Manna, A., Gumel, N. and Saifullina, M.

Counteraction to Offenses against Sexual Self-determination of Minors in Criminal Law of Germany.

DOI: 10.5220/0010644900003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

394-399

ISBN: 978-989-758-532-6; ISSN: 2184-9854

children and youth and cause irreparable harm to the

younger generation.

German criminal law in the area of protecting

children and young people from exposure to

pornography has undergone significant reform under

the influence of socio-economic and political

changes: the social revolution of the 1960s; the

adoption of the Act on the restriction of access to

child pornography in communication networks

(repealed under pressure from opposition factions of

the Bundestag in December 2011). Significant

changes were also made to the German Criminal

Code in 1993 and 2003, and in 2008 youth

pornography was criminalised under the influence of

the Framework Decision on combating the sexual

exploitation of children and child pornography.

4 CONCLUSIONS

The sale or other fee-based distribution of obscene

works, illustrations or images to persons under 16

years of age was already criminalised under the

Criminal Code 1871. Later, in 1900, criminal

punishment was also introduced for providing such

materials to such persons free of charge. In the first

half of the twentieth century, the distribution of

pornographic material became so widespread that in

the mid-1920s, dedicated service was established to

control the press market in order to suppress the

printing of "licentious" publications. In 1926 the Law

to Protect Youth from Trashy and Dirty Writings

came into force. This law was in force until April 10,

1935. In 1953 the Law Regarding Dissemination of

Youth-Endangering Writings came into force,

stipulating that the moral development of children

and adolescents was primarily threatened by immoral

and degrading works. In 1961 the law banned the

advertisement of pornographic material to minors.

The sexual revolution in the late 1960s

significantly decriminalised the legislation. The case

against Kurt Desch Verlag Publishing House, having

published the novel by John Cleland, "Fanny Hill:

Memoirs Of A Woman of Pleasure", 1749, became

much talked about. In July 1964, the Munich District

Court (Judge Schweiger) ordered all copies of the

novel to be confiscated and fined the publisher

DEM 120,000. Judge Schweiger ruled the novel

indecent in July 1964, and the actions of the editors

were classified as a criminal act under §184 of the

German Criminal Code as an intermediary in the

dissemination of "naked sensual pleasure". However,

the case was revised in the city of Karlsruhe, and

editor Kurt Desch was acquitted. Later, the German

Supreme Court made a decision in the Fanny Hill

case, according to which a "description of sexual

events" was understood as rude, intrusive, suggestive

description, violating or seriously threatening the

public interest. The sexual process, on the other hand,

was seen as a way of arousing sexual feelings,

brutally affecting the human psychology, and

changing the perspectives on sexual relationships.

The act of distributing pornography to minors was

also decriminalised in 1973.

On July 23, 1993, the 27th Law amending the

Criminal Code came into force (BGBL I.S. 1346),

which made significant changes to §184. For

example, possession of child pornography has been

criminalized for the first time; the criminalization of

distribution of pornographic publications depicting

violence against children was strengthened;

undertaking to import it by means of a mail-order

business and selling such products in places

accessible to persons under 18 were also

criminalized.

The Criminal Code of Germany was substantially

amended in December 2003 to broaden the criminal

offenses and increase the limits of punishment. Thus,

§184 "Dissemination of pornographic written

material" contained separate qualified offenses –

paragraph 3-5 §184 of the Criminal Code, in the

course of the reforms, the legislative body made them

separate offenses under §184a, 184b, 184c of the

Criminal Code of Germany, i.e. the legislative body

distinguished between hardcore and extreme

hardcore pornography, including child and youth

pornography in the latter.

§184, "Dissemination of Pornographic Written

Materials" was reformed in detail, criminalizing the

distribution, public display, production, ordering,

supplying, procurement, advertising, importing or

exporting pornographic printed materials containing

violent sexual acts or sexual abuse of persons under

the age of eighteen. Separately, the following

constituent elements were singled out:

§184b – Dissemination, procurement and

possession of child pornography.

In 2008, under the influence of the framework

decision of the Council of the European Union on

combating the sexual exploitation of children and

child pornography, adopted on October 31, 2008,

youth pornography was criminalized by the

introduction of §184с – "Dissemination, procurement

and possession of youth pornography".

A heated debate was sparked after the adoption of

the Law on Fight Against Child Pornography in

Communication Networks. Based on this Law,

German government planned to enter into an

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agreement with leading providers within the next 6

months, whereby the providers would block websites

containing child pornography by displaying a stop

sign and notification that the content of the site was

illegal. However, some opponents of the law were

pointing out that the law "disproportionately infringes

on fundamental rights", while others believed that the

blocking measures were limiting the secrecy of

telecommunications. Still, others argued that this was

a "placebo solution" and that it was necessary to

provide for not only blocking, but also removal of

pornographic sites. Under the pressure from

opposition factions of Bundestag, the law was

repealed on December 28, 2011.

During the 2015 reform, separate offenses were

classified under §184d, §184е, and §184g, which

criminalized making pornographic content available

through broadcasting or telemedia services; accessing

child or youth pornographic content via telemedia;

attending a presentation of pornography by children

and youth, and prostitution likely to corrupt juveniles.

The last significant changes took place in January

and March 2020, when the Bundestag amended

§184b of German Criminal Code, criminalizing the

attempts to contact minors online via the Internet for

the purpose of sexual violence. Legislators have

extended the powers of police officers to perform

public tasks arising from agreements with competent

public authorities; or to perform official or

professional duties. Thus, as part of the investigation,

with the permission of the judge, police offices were

entitled to use generated child pornographic materials

to gain access to the relevant Internet platforms.

Currently, the offenses of dissemination of

pornographic written material (§184 of the German

Criminal Code); dissemination, procurement and

possession of child pornography (§184b of the

German Criminal Code); or youth pornography

(§184c of the German Criminal Code); making

pornographic content available through broadcasting

or telemedia services; accessing child or youth

pornographic content via telemedia (§184d);

attendance of presentations of child and youth

pornography by children and juveniles (§184e);

prostitution likely to corrupt juveniles (§184g) are

included in the group of offenses relating to criminal

acts against the sexual self-determination of minors.

These crimes pose a significant danger to the

public, as they give rise to sexual violence, encroach

on the public morals of young people, and cause

irreparable physical and moral harm to children

(minors).

There is currently no unified approach to

understanding the term "pornography" in German

scholarship. Nicola Döring identifies three types of

sexual imagery: erotica; simple pornographic,

softcore or hardcore imagery; and pornography.

The latter type of sexual imagery is prosecuted

under German criminal law. The Federal Court of

Justice (BGH) ruled in 2014 that pornography as an

illegal act is characterized by the following

characteristics: it aims exclusively or predominantly

at arousing sexual stimulation in the viewer; it

exceeds the limits of sexual propriety established in

accordance with universal human values. The term

"pornographic material" refers to obscene material

with content intended to corrupt and defile a citizen.

German criminal law distinguishes between child

and youth pornography, which refers to images or

performances containing acts of sexual violence

against children (under 14 years of age) and

adolescents (14-18 years of age). It does not matter to

the enforcer whether it is a real or realistic event, or a

fictional image, such as a cartoon. Not only

photographs, books and magazines, but also relevant

materials placed on analogue and digital sound and

graphic media and data storage can be considered

pornography.

The legislative body classifies the acts stipulated

in §184 of German Criminal Code – Dissemination of

pornography as criminal infractions. Thus, a penalty

of imprisonment for a term not exceeding one year or

a fine is stipulated for the purchase of pornographic

written material involving persons under 18 years of

age for oneself or for a third party.

The basis for criminal liability is the possession

of a document relating to sexual acts and its

availability to a third party.

Possession of pornographic written material shall

mean the ability to have actual substantive control

over the material in question. In case of digital

images, possession is defined as storing them on a

hard disk or other data storage medium. Information

and images can also be stored in the cache, which

equates to email attachments, i.e. images attached to

an email. Pornographic material may also be stored in

the hard disk buffer.

A victim is a person under 18 years of age. The

Federal Constitutional Court once pointed out that if

the victim is a "fictitious young person" who is in fact

an adult, but a third party (an observer) perceives the

victim to be a minor, the perpetrator's actions fall

within the scope of §184c of the German Criminal

Code. The harm caused to the victim must be serious.

The jurisprudence proceeds from the assumption that

there may be an abstract possibility of serious social

and ethical disorientation in the minor.

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The object of the crime is public morals and civil

ethics. The main purpose of §184 of German Criminal

Code is to protect minors from exposure to

pornography. Therefore, they should not have access

to such materials.

The objective side of §184 of German Criminal

Code is expressed in the fact that the perpetrator

offers or leaves pornographic material freely

accessible to minors; keeps such material in a place

accessible for viewing by a person under 18 years of

age. This can be a house, other premises suitable for

permanent or temporary occupation or residence:

house, flat, retail outlets, kiosks, post offices,

libraries, reading groups, except shops not accessible

to minors; sends by mail; or displays in a public place

accessible to minors; or the perpetrator allows minors

to attend such a place; and if the perpetrator produces,

obtains, supplies, stocks or exports it in order use it;

or undertakes to export it in order to disseminate it to

third parties.

The subjective aspect is expressed in the form of

intent. The perpetrator must be aware of what he/she

is doing, and to want it. Thus, a person will not be

prosecuted if child pornography comes via an Internet

page, or an email with attached files containing the

relevant pornographic material.

The subject of the offense under §19 of German

Criminal Code is a person who has reached the age of

14, but the perpetrator, aged 10 to 14, may be brought

to justice in accordance with civil law. For example,

Charlottenburg court sentenced a 13-year-old boy to

pay his girlfriend of the same age a compensation of

1,000 Euros for sending her private photos via

WhatsApp.

§ 184b of German Criminal Code "Dissemination,

procurement and possession of child pornography"

defines child pornography, as sexual acts by or before

a person under the age of 14 (child); reproduction of

a fully or partially undressed child in an unnatural

sexual posture; or sexually stimulating reproductions

of the naked genitals or buttocks of a child (sexually

stimulating visualisation). The purpose of this article

is to prevent the imitation and indirect promotion of

child sexual abuse.

A victim is a person under the age of 14. The

Federal Court has repeatedly stated that if an

objective observer perceives a person as a child (a

person under 14 years of age) regardless of actual age,

the acts in question are subject to §184b of German

Criminal Code.

Virtually created images, fictional characters or

manga, which can be used as an object, are also

prohibited in Germany. For example, at the end of

December 2017, the FSK (Self-Regulatory Body of

the Movie Industry) banned the exhibition of anime

series "My Girlfriend is a Faithful Virgin" on the

grounds that episode 3 presents minors in an

unnatural position with a gender-sensitive accent.

Applicable law: Clause 15, paragraph 2, 4 of the

Youth Protection Act, dated March 10, 2017,

Paragraph 1 (9) of the Treaty on the Protection of

Human Dignity and the Protection of Minors in

Broadcasting and in Telemedia, and § 184b of

German Criminal Code prohibit the depiction of

minors in an unnaturally gender-sensitive positions.

Judicial practice, however, points out that "expression

of the child" and "physical development" should also

be taken into account when awarding judgement.

Posing for intercourse must involve active actions

by the child such as spreading the legs, the child must

adopt unnatural sexual postures. However, not every

material containing the image of a naked child or

child genitals should be qualified as an offense under

§184b of the German Criminal Code. Since passive

behaviour alone is insufficient, images of naked

children in their natural positions – sleeping, on the

beach, in the bathtub, changing clothes – would not

be considered pornographic material, as there is no

clear sexual meaning in the behaviour of children.

The subjective aspect is expressed as follows:

- showing actions of sexual nature by or in the

presence of a child;

- display of (partially) undressed child in an

unnatural posture emphasizing the gender. So-called

"staging" also falls under this act;

- leg spreading or showing sexually provocative

body parts. In this case, it is not necessary for a child

to realize the sexual nature of his/her actions;

- sexually provocative display of the naked

genitals or buttocks of the child.

Showing child's naked genitalia or buttocks does

not require any additional unnatural, gender-

emphasising posture. The display as such is sufficient

for bringing criminal charges.

Law enforcement and court practice proceed from

the assumption that the type and size of the penalty

depends on the number of stored files containing such

products. For example, if there are no more than a

hundred files on the media, the act in question

constitutes a misdemeanor offense, so the prosecution

may refuse to press public charges under §153a of the

German Code of Criminal Procedure, but may at the

same time impose an obligation on the accused to pay

a monetary claim, in certain cases to be examined by

a sex therapist in order to ascertain whether special

therapy for pedophilic tendencies is necessary, and an

obligation to pay the costs of special examination of

files containing child pornography.

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If the media contains several hundred to a

thousand files or the material is of a violent nature,

the applicable sanction is usually imprisonment for

more than three months or a fine of more than 90 daily

wage rates. The most severe penalties are provided

for possession of several thousand to 10,000 files on

a medium. In some cases, additional disciplinary

measures – suspension from public service – are

allowed as an additional punishment.

The acts characterising youth pornography are

specified in §184c of German Criminal Code,

namely: sexual acts committed by a person over

fourteen but not yet eighteen; or before him or her, or

the display of a fully or partially undressed person

between the ages of 14 and 18 in an unnatural sexual

posture.

Disposition of §184с of German Criminal Code

virtually repeats the disposition of §184b, with the

exception of clause c) of §184b of the German

Criminal Code "sexually provocative reproduction of

a child’s bare genitalia or bare buttocks". It is worth

noting that the creation of pornographic material

without the intention of dissemination, the possession

of such material shall not be subject to criminal

liability if the person who posed for such purposes

consents to posing.

Disposition of §184d (2) provides for criminal

punishment against anyone who undertakes to

demonstrate images of child pornography via

telemedia. The same applies, according to §184b (2),

to youth pornography. The purpose of this provision

is to protect against the indirect sexual abuse of

children and adolescents. The legislative body also

banned the organisation and attendance of

presentations of child and youth pornography in

§184e of German Criminal Code.

5 CONCLUSION

Child pornography is a global problem for any state.

For decades, the German authorities have been

searching for the best mechanisms to combat this evil.

In 1993, possession of child pornography was

criminalised for the first time. However, reforming

the institution by repeatedly amending the German

Criminal Code has failed to solve this problem, as the

emergence of new digital forms of crime on the

Darknet has become another serious threat to society.

In 2017, for example, Germany shut down Elysium,

the largest child pornography platform with around

90,000 users worldwide, indicating that the State

needed to take urgent, comprehensive (political,

socioeconomic, legislative) measures to counteract

sexual violence against children and young people on

the Internet. Therefore, we believe that the

amendments made to the German Criminal Code in

March 2020 will help the German law enforcement

agencies counteract sexual violence against children

and young people in more detailed and professional

way. We assume that further tightening of control

over the Internet and Darknet, as well as tougher

penalties for crimes against the sexual identity of

children and juveniles, will also help counteract the

increase in crime in this category of cases.

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