Crime or professional duty?
She wanted to help – why a teacher still has to go to court for child pornography
A teacher from the Westerwald has to answer in court for child pornography – even though she only wanted to help one student (symbolic image)
© Julian Stratenschulte/dpa
A teacher from the Westerwald wanted to help and protect a student – and is still a case for the justice system. A change in the law is intended to prevent punishments for possession of child pornography from falling on the wrong people.
What followed was a trial against the now 43-year-old teacher: in mid-July 2023, the Koblenz public prosecutor’s office brought charges against the woman at the Montabaur district court – because she is said to have “obtained possession of child pornographic content for herself and, for the most part, for another person.” The main proceedings have now been opened there, but a date has not yet been set, said the spokesman in Montabaur.
At the end of 2023, the district court refused to open the main proceedings. Reason: The offenses of obtaining property were not realized because the teacher acted “in the fulfillment of official and professional duties”. But the public prosecutor’s office lodged a complaint against the decision, and at the end of January it was overturned in the Koblenz regional court.
Prosecutor says: Obtaining video was not necessary
“The regional court, like the public prosecutor, considers the behavior of the accused to be criminal in principle,” said senior public prosecutor Thomas Büttinghaus. And the Koblenz regional court wrote that it was “not necessary for the teacher as part of her pedagogical duties” to obtain the video.
It is also cases like these that have recently prompted the legislature – even after criticism from practice – to make changes to the criminal law provisions. Since the summer of 2021, the possession and distribution of child pornography content has been considered a crime and is punishable by at least one year in prison. The public prosecutor’s office and courts currently no longer have any leeway to stop such criminal proceedings.
The Rhineland-Palatinate Justice Minister Herbert Mertin (FDP) also called on the federal government in September 2023 to quickly change criminal law here. At the beginning of February, the Federal Cabinet decided on changes in cases in which it was questionable whether someone had acted not out of their own sexual interest, but in order to stop, prevent or clarify further distribution or publication of such material.
The draft states verbatim: “Such cases have occurred particularly frequently among parents and teachers of older children or young people who have found child pornographic material in their homes and forwarded it to other parents, teachers or the school administration in order to report it to inform about the grievances.” In the future, the minimum sentence for distribution will be six months.
Child pornographic material: changes to the law are being planned
Mertin now expressly welcomes the change in the law planned at the federal level. Lowering the minimum sentence in certain cases to less than one year’s imprisonment is necessary because the public prosecutor’s office only then has certain means at its disposal, such as discontinuing proceedings, explained the Minister of Justice in response to a dpa query. Reducing the minimum penalty makes it possible to respond appropriately to cases in which, as with teachers, people act with the best of intentions and which the responsible public prosecutor’s office therefore does not consider worthy of punishment.
What does the reform of the reform mean for the case of teachers in Rhineland-Palatinate? “The envisaged change in the law would no longer preclude the discontinuation of proceedings outside of the main hearing if the criminal offense was ‘downgraded’ to a misdemeanor (instead of a felony), said district court director Ralf Tries. However, this must first be carefully examined by the jury, the public prosecutor and the defendant.
Senior public prosecutor Büttinghaus said: “After implementing the planned reduction in the minimum sentence, the public prosecutor’s office would agree to a legally possible discontinuation of the proceedings.” However, insiders raise concerns that an acquittal at the end of the trial could be better for the woman, as a dismissal would require a low level of guilt. And that could then have disciplinary consequences for the teacher.
It is therefore clear to the GEW education union: “I am of the opinion that the colleague should definitely be acquitted,” said state boss Klaus-Peter Hammer of the German Press Agency. No one could understand a different decision. “I also very much hope that the school authorities will react sensibly.” Because of the case, there is widespread uncertainty among teachers. “That’s why it’s good that the law is now being changed.” It is important that teachers and those involved in education know exactly how to behave in similar cases in the future.
The chairwoman of the Rhineland-Palatinate Philology Association, Cornelia Schwartz, also spoke of great uncertainty among teachers. If educators want to work for the well-being of the students but are then threatened with a prison sentence, their willingness to help decreases. Therefore, changing the law is urgently needed.
The Rhineland-Palatinate Ministry of Education also sided with the educator: In this specific case, intensive discussions took place between the school supervisory authority ADD and the school management, a ministry spokesman told the dpa. “These discussions were aimed at supporting the teacher, who undoubtedly acted with good intentions.”
At the same time, according to the spokesman, the Ministry of Justice, Interior and Education as well as the school supervisory authority have used the case as an opportunity to create an information sheet on how to deal with child and youth pornography material, which has been made available to all teachers in the country. The aim is to prevent other teachers from unintentionally making themselves vulnerable to criminal prosecution.