fact finder
Possession of depictions of child abuse should no longer be punishable by at least one year in prison. This is causing an uproar online, but experts believe the step is overdue.
“Traffic light lowers child porn penalties,” headlined “BILD.de” last Sunday. Excited reactions followed, especially on social networks. Former national soccer player Max Kruse shared a screenshot of the headline on Instagram with the words: “Some things you can only touch your head.”
Former “BILD” boss Julian Reichelt also got involved. He wrote on the text message service Federal Justice Minister Marco Buschmann is becoming the “most popular politician in the child porn scene.” But what’s the point?
Minimum sentences should be reduced
Specifically, it concerns a planned change to the law regarding the minimum penalties for the distribution, acquisition and possession of child pornographic content in its entirety (§ 184b paragraph 1 sentence 1 and paragraph 3 of the Criminal Code).
Buschmann had already introduced the law in mid-November, which is now to be passed by the cabinet. Currently, the minimum penalty for disseminating depictions of child abuse, for example, is one year in prison. But according to judges and detectives, this creates an overload, as even cases in which there is no pedo-criminal motive cannot simply be stopped.
This was only decided in 2021 under the then Justice Minister Christine Lambrecht – in response to the Cases of serious sexual abuse of children as well as the production and distribution of depictions of child abuse in Lügde, North Rhine-Westphalia.
Difference Between Misdemeanor and Felony
Buschmann wants to shorten the minimum sentences from one year to six months (paragraph 1, sentence 1) or to three months (paragraph 3). And there is one main reason for this: the so-called crime. All crimes that carry a minimum sentence of one year are legally crimes, such as murder, manslaughter and rape. In the criminal code It says: “Crimes are unlawful acts that are punishable by a minimum prison sentence of one year or more.”
On the other hand, there are misdemeanors. According to the Criminal Code, these are “unlawful acts that are at least punishable by a lesser prison sentence or a fine.” These include, among other things, insults, theft and trespassing.
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 would in the case of a misdemeanor.
Upgrading led to “accumulation of cases”
According to Dirk Peglow, chairman of the Association of German Criminal Investigators, the increase in the minimum sentence three years ago resulted in an increase in cases against people who obviously did not act out of pedo-criminal motivation. “As a result, we had to deal a lot with schoolyard chat groups in which young people shared these terrible images.”
In addition, it also happened that, for example, an investigation had to be carried out against parents who had discovered such images in their children’s chat groups and then shared them with other parents in order to warn against them. “And that’s not the point of it,” says Peglow. “We would rather use the police’s already scarce resources to combat pedo-criminal networks or pedo-criminal perpetrators.”
Sebastian Büchner, press spokesman for the Berlin Public Prosecutor’s Office, also criticizes the lack of flexibility in the procedures due to the crime. “If the whole thing is classified as a misdemeanor again, you have a little more leeway, for example to stop proceedings against a fine.”
Proceedings against a teacher in Rhineland-Palatinate
In Rhineland-Palatinate a teacher had that Intimate recordings of a 13-year-old student were secured, which was distributed against her will by the girl’s boyfriend at the time in order to inform the girl’s mother. Because of the crime, the Koblenz public prosecutor’s office was obliged to investigate and charge the teacher, even if the investigators assumed that the teacher had acted with the best of intentions.
And that can have far-reaching consequences: If, for example, a civil servant teacher is sentenced to the minimum sentence of one year’s imprisonment, according to Büchner, this also means that he will be legally removed from civil service.
In Baden-Württemberg, a woman was charged, according to the “Süddeutsche Zeitung”, because depictions of child abuse were stored on her smartphone via automatic download.
The planned reduction in the minimum sentence would give investigators and judges the opportunity to stop the proceedings or impose milder sentences in such cases. In one Ministry of Justice press release It says: “The proportionality of the minimum sentence of one year’s imprisonment is particularly questionable if the accused person obviously did not act out of pedo-criminal energy, but rather to stop, prevent or clarify the further distribution or public access of child pornographic content. “
This also affects cases “in which the content came into the recipient’s possession unintentionally or in the case of young perpetrators who 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.”
Experts had warned of the consequences
Even before the minimum sentence was tightened in 2021, the German Association of Judges and the Association of German Criminal Police Officers, among others, had warned against overloading. “Exactly what we predicted happened,” says Peglow. “The intended reduction in the minimum sentence will give law enforcement authorities the opportunity to react flexibly and appropriately to the crime and guilt and to intensify investigations against pedo-criminal networks again.”
Experts also point out that not all tightening measures should be withdrawn. The production of depictions of sexual violence against children can still result in a prison sentence of up to fifteen years, says Büchner – as a case of serious sexual abuse of children. “It is important that the severity of the various offenses can also be reflected in the punishment hierarchy. And that is the case with the planned change.”
The majority of cases of sexual violence against children are reported by the US non-governmental organization National Center for Missing and Exploited Children (NCMEC). From there, the BKA received around 136,000 reports with a connection to Germany in 2022.