Sexualised violence against children: tightening of the law should be corrected

Since 2021, the dissemination of depictions of sexualized violence against children has also been a criminal offense. But the tightening of the law is causing the authorities to be overburdened – it is often not about cases with a pedo-criminal background.

The traffic light groups would like to correct the recently tightened law on the “distribution, acquisition and possession of child pornography content”.

In an interview with the ARD magazine, Johannes Fechner, parliamentary director of the SPD parliamentary group in the Bundestag, wanted “quickly a change in the law”. panorama. “It would be good if Minister Buschmann presented a proposal promptly, which we would then discuss quickly.”

In November, the conference of justice ministers had already spoken out in favor of toning down the corresponding paragraph 184b in the penal code or adding so-called less serious cases.

A spokesman for Federal Minister of Justice Marco Buschmann (FDP) was cautious. One takes the concerns about the current regulation “very seriously” and examines “need for legislative action”. According to reports, the Ministry of Justice believes that the SPD has a duty to correct the tightening by means of a legislative initiative directly in the Bundestag, after all, the then Social Democratic Federal Minister of Justice Christine Lambrecht had the plans drawn up.

In the summer of 2020, the SPD and Union had passed the tightening in the Bundestag despite massive concerns from experts. It was considered a prestige project of the grand coalition in the election campaign.

It often hits the wrong people

The background to the discussion is a flood of proceedings that are overloading the police and courts in Germany due to the tightening of criminal law. In many cases, this does not involve cases in which pedo-criminals have acquired or shared photos and videos of serious child sexual abuse.

Instead, it also hits parents or teachers who point to a nude photo in the class chat in order to take it out of circulation. Or young people who send justiciable recordings to friends on WhatsApp as a “test of courage” or who do not know that the videos are punishable.

For example, in one widely shared video, a boy is bitten in the penis by an insect. In another video often sent to teenagers, a 13-year-old girl has sex with two 12-year-old boys. Legally, these recordings are so-called “child pornographic” content. If these recordings are exchanged via services such as Facebook, Instagram or Snapchat, the Federal Criminal Police Office from the USA automatically receives information on the suspicion of “child pornography”.

Invariably a crime

By classifying the acts as a crime, investigative authorities are left with no choice but to bring even the smallest case to justice. Legally, the term “crime” means that the minimum sentence is one year. If this is lower, one speaks of a “misdemeanor”.

Crimes cannot be stopped because they are insignificant, but misdemeanors can – this is intended to protect law enforcement authorities and courts from being overburdened by mass and small claims proceedings.

Exactly this overload has now occurred due to the tightening of paragraph 184b, says Jan Reinecke from the Association of German Criminal Investigators (BDK): “Above all, the fact that the less serious case has not been taken into account in the legislation means in practice that the state police have to conduct numerous investigations without any actual pedo-criminal background.”

In the end, there is hardly any investigative potential left for the actual cases, says Reinecke. After panoramaresearch, the number of cases without a pedo-criminal background is already around 50 percent in some authorities.

Counseling centers that work with those affected by sexualised violence are also demanding a correction. The Federal Coordination of Specialized Counseling Against Sexualized Violence in Childhood and Adolescence (BKSF) reports that there is currently great uncertainty among affected children and parents who want to file a complaint and have to save recordings on their devices for evidence purposes.

The association fears that adults could shy away from reporting because they themselves could be investigated. A solution is “urgently necessary”, according to Franziska Drohsel from the BKSF.

Union initiative, the SPD went along with it

A heated debate preceded the tightening of the paragraph. After the sensational cases of abuse in Lügde, Bergisch-Gladbach and most recently Münster, calls for tougher penalties became louder in the summer of 2020.

The CDU leader at the time, Annegret Kramp-Karrenbauer, demanded that sexual abuse of children always be classified as a crime. The CDU general secretary at the time, Paul Ziemiak, added that possessing depictions of abuse “is always a crime” and that there are no particularly easy cases.

The Federal Minister of Justice at the time, Lambrecht, initially spoke out against tightening the rules, but then backtracked and presented a draft that was all the more stringent. There should therefore be no exceptions for less serious cases.

In a hearing of experts, it rained criticism at the time. The experts predicted the overload that has now occurred. Members of parliament from the Union and SPD who were involved at the time now point out that attempts were made behind the scenes to have the plans defuse. In the end, however, the SPD and Union factions voted for the current regulation.

Resources for the “real” pedo criminals are lacking

Due to concerns about a misunderstood message, there has not been a correction so far. No one is keen on advocating a “minor case” rule on this emotional issue of child abuse portrayals. The pressure has now apparently become so great that the SPD, when asked by panorama dared to come out of cover and wants to increase the pressure on Minister Buschmann.

The procedures tie up “an enormous amount of staff in the police, public prosecutor’s offices and courts, which is urgently needed to convict and convict the real sex offenders,” says SPD politician Fechner. The now oppositional Union also signaled panorama versus willingness to support a “practicable and appropriate proposal” from the Federal Minister of Justice.