The penalties for possession and distribution of child pornography are to be partially reduced. One reason: Until now, parents who forwarded images to highlight grievances also had to be punished.
After criticism from practice, the Federal Cabinet has decided to change some points in the criminal law provisions that came into force in July 2021 on the distribution of depictions of sexual abuse against children. Among other things, according to the draft law, the minimum penalty for disseminating such material will be reduced from one year to six months and for obtaining and possessing it from one year to three months.
The new version is also intended to reverse the automatic classification as a crime. The difference between a crime and a misdemeanor is particularly relevant for prosecutors, judges and detectives. In the case of a crime, courts cannot simply stop proceedings, as they can in the case of a misdemeanor.
Federal Justice Minister Marco Buschmann explained that in order to give public prosecutors and courts the opportunity to respond flexibly and proportionately to each individual case, they would essentially return to the old legal situation.
Criticism came from the judiciary
The change in the lower penalty framework in 2021 has led to numerous problems in law enforcement practice, Buschmann continued. In particular, people who have received such material unintentionally – for example as part of a WhatsApp parents group – are threatened with a minimum prison sentence of one year. The same applies in the case of teachers who discovered child pornographic material on students’ cell phones and forwarded it to alert affected parents.
It is therefore an urgent wish, particularly from prosecutors, public prosecutors and courts as well as the state justice ministers, to return to the old legal situation.
Large proportion of young perpetrators
Classification as a misdemeanor – instead of as a crime – is also urgently needed in order to be able to respond appropriately and with the necessary flexibility to the large proportion of young perpetrators, according to the draft law. As a rule, they acted “out of a drive typical of a young person’s level of development, such as inexperience, curiosity, a thirst for adventure or a desire to impress.”
Crimes are crimes that are punishable by a minimum penalty of one year in prison in the criminal code. With the Act to Combat Sexual Violence Against Children of 2021, the relevant paragraphs in the code were changed so that this generally also applies to the area of child abuse and child pornography.
Higher maximum penalties remain
Under the impression of the abuse incidents in Freiburg, Lügde and Bergisch-Gladbach, the Bundestag tightened criminal law in 2021 and decided on harsher punishment for abusers. The governing factions of the Union and SPD had previously wrestled with the reform for a long time.
According to information from the Federal Ministry of Justice, the main goal of the law passed at the time to combat the distribution, acquisition and possession of so-called child pornography – the significant increase in punishment – is not affected by the recent reform of the corresponding paragraph of the Criminal Code. Before 2021, perpetrators could be punished with a maximum of five years in prison for the possession, acquisition or distribution of child pornographic material; since then it has been ten years. Because less serious cases can now be classified as misdemeanors again, the government says it is now possible to prioritize urgent cases again.
Bianca Schwarz, ARD Berlin, tagesschau, February 7th, 2024 3:18 p.m