sou · GVB354 · 2008-01-01 00:00:00 — portrayed in pornographic pictures have generally become more serious. Using the Internet, pornographic pictures of the child can now be extensively spread, in principle, to an unlimited number of people, and the risk of the pornographic picture circulating ad infinitum is considerably greater today. This not only applies to children whose pubertal development is not complete and who are therefore covered by the penal provisions on child pornography crimes; it also applies to children whose pubertal development is complete who are not at present covered by the provisions. In the Inquirys opinion, the violations are just as punishable with regard to children whose pubertal development is complete. The interest in protecting these children from the violation of integrity that child pornography entails is very important. Extending the scope of the penal provisions so that they also include these children would in some sense allow them more of a chance to receive redress for the violation that they have suffered, increase the chance of obtaining a conviction for the perpetrator of the crime in any individual case, and increase the childs chances of obtaining damages from the per- petrator. An extension in scope also clearly indicates, and sends a stronger signal on the part of society, that it is forbidden to exploit children in pornographic contexts in any way and that this applies regardless of the individual childs physical development. There are, however, strongly competing interests of which account must also be taken. These strongly competing interests include the fundamental values of freedom of the press and freedom of expression. Other interests to consider are the requirement for the effectiveness of a new criminalisation and the principle of legality. Having considered all the interests that should be taken into account in this context, the Inquiry has found that, on balance, the reasons indicate that a definite 18-year age limit should be in- corporated into the definition of child pornography. What deter- mines criminal responsibility in individual cases will thus always be whether the person depicted is in fact a child and not, as under present law, what the viewer of the picture may perceive. However, even in the future, the main rule will be that the pubertal develop- ment of the depicted child is decisive. This means that the protection applying now to people whose pubertal development is not com- plete and who cannot be identified or who are 18 or over the age of 18 has been retained. The Inquiry thus proposes that in the penal provisions on child pornography crimes, a child shall refer to a person whose pubertal development is not complete, or a person who is under the age of 18. In connection with the 1999 child pornography reform, the crime of child pornography ceased to be a crime against freedom of the press or freedom of expression. Since then, the Freedom of the Press Ordinance and the Fundamental on Freedom of Expres- sion have stated that they are not applicable to portrayals of children in pornographic pictures. It is not entirely clear what is meant by the concept of child in the exemption of the fundamental laws. In order to remove possible doubts, the Inquiry proposes that the provisions be more clearly defined. The Inquiry proposes that the provisions be formulated so that child pornographic pictures are explicitly exempted from the scope of the fundamental laws. Pornography in which adults are portrayed as children or are given various attributes that are suggestive of children should not, in the Inquirys opinion, be criminalised. The scope of criminalisation At present child pornography is produced and spread extensively using information technology, primarily the Internet. Technical development has meant that good quality pictures can be incredibly easily and effectively disseminated to a large number of people. The development has also led to child pornographic pictures being more easily accessible for mere viewing. New types of involvement with child pornography have arisen as a result of technological advances and this can be expected to continue in pace with increasing technical development. In the Inquirys opinion, every presentation of a child pornographic picture represents a violation of both the depicted child and children in general. This violation can be caused by the originator of the picture himself, or by others at a later stage, if, for example, the picture has been circulated to other people. The point of departure for the Inquiry is therefore that criminalisation of child pornography must as far as possible encompass all types of involve- ment with child pornographic pictures that may be considered punishable. The Inquirys investigations have shown that several of the new types of involvement with child pornographic pictures that have arisen fall under the present criminal area. Todays technology, how- ever, allows certain types of involvement where the present penal provisions appear to be difficult to apply in some cases and not at all applicable in others. For example, by making a payment, people can view child pornographic material that is made available via certain websites (pay-per-view sites). Another way of obtaining access to such pictures may be to take part in a digital forum or community where child pornographic pictures are made available; a member of such a forum does not always need to contribute pictures himself. It is also possible to view child pornographic pictures using other services. The kind of involvement with child pornographic pictures that we are now talking about – and that can only be brought under the present criminal area with difficulty or not at all – can be described as qualified channels for viewing child pornographic pictures; the individual has made some kind of effort to be able to view precisely these kinds of pictures. From the point of view of penal value, there is no material difference between these types of involvement with child pornographic pictures and the kind of involvement implied by possession. It is likely that, as may be the case with possession, such qualified viewing creates a demand for new pictures. Thus the market for child pornography is also maintained in these cases. This contributes to more children being subjected to sexual abuse and possibly also to increasingly serious abuse. In the Inquirys opinion, these types of involvement with child pornographic pictures are so objectionable that there are good reasons for criminalising them. For this reason, the Inquiry proposes that the criminal area be broadened. So that there should be no risk of limiting the freedom of infor- mation guaranteed by fundamental law in a too extensive and there- fore unacceptable , the Inquiry considers that this new type of criminal act be accompanied by limiting necessary conditions. The Inquiry proposes that the criminal area be broadened so that a person who, for payment, according to a predetermined plan, on repeated occasions, extensively or in another, similar acquires access to child pornographic pictures, will be sentenced for the crime of child pornography. Exemptions from the criminal area The reform in 1999 led to an explicit exemption for craftsmanlike- produced pictures, which means that the prohibitions against por- trayal and possession do not apply to a person who draws, paints or in some other similar, craftsmanlike fashion produces a child porno- graphic picture, as long as the picture is not intended for dissemi- nation, transfer, licensed use, exhibition or availability in any other way to others. At the same time, the exemption introduced in 1980 for acts that are justifiable was retained, which means that an act shall not constitute a crime if, having regard to the circumstances, it is justifiable. The Inquirys investigations show that the present exemption are necessary. The Inquiry has come to the con- clusion that there is no reason either to limit or extend their present scope. Sexuality has taken an increasingly prominent place in Swedish society. The consumption of pornographic material – which, as a result of technical development has become more and more easily accessible – has increased, also among young people. Several studies have shown that there is a strong connection between having viewed pornography and having tested certain sexual acts. It is likely that greater sexualisation has led to the attitude of many of todays child- ren with regard to, for example, sexuality and nakedness not being the same as it was a few years ago. It has become increasingly com- mon, for example, for children to publish sexy pictures of them- selves on the Internet. It also happens that children depict their own sexual behaviour. How such and similar practices are to be assessed using current legislation on child pornography crimes is not entirely clear. With regard to crimes against the general public, an individual person may not place himself above this public interest. Since the purpose of criminalising child pornography is not only to protect the depicted child from being violated but also children in general, the Penal Codes provision on consent as a general ground for freedom from liability cannot be applied in these cases. This means, for example, that a child cannot effect freedom from liability by con- senting to be portrayed in a pornographic picture or allowing some- one else to possess the picture. , for example, can the child with impunity disseminate pictures of him or herself that under the penal provision on child pornography crimes would be regarded as child pornography. The Inquiry is of the opinion that the above-mentioned acts do not constitute punishable acts in all cases and therefore pro- poses that rules on freedom from liability be introduced for these situations. With regard to children who depict their own legal sexual be- haviour, the Inquiry proposes that the rule on freedom from liability is limited to a person who depicts in a pornographic picture a child who is over the age of 15 or possesses such a picture, provided that the difference in age and development between the child and the perpetrator is minor and the circumstances otherwise do not warrant the person who has committed the act being convicted of a crime. Freedom from liability cannot ensue when consent is given to types of activities other than portrayal and possession; firstly, the general interest of protection takes precedence in these cases, and secondly it may be difficult for the child to foresee the consequences of his or her consent to another type of activity. The Inquiry considers that children under 15 years of age need absolute protection against child pornography crimes and that therefore freedom from liability should only ensue in cases where the portrayed child was over the age of 15 when he or she was portrayed. The proposed rule on freedom from liability cannot be applied if the act is to be considered a gross child pornography crime. With regard to a person who commits punishable acts with child pornographic pictures of himself or herself, the Inquiry proposes that the rule on freedom from liability be limited to apply to a person who is under the age of 18, provided that the picture was produced when that person was over the age of 15 and circumstances other- wise do not warrant him or her being convicted of a crime. The rule on freedom from liability is thus only applicable in those cases in which the perpetrator at the time of the act was over the age of 15 but under the age of 18. The rule thus cannot be applied if an adult person commits punishable acts involving a child pornographic picture of himself or herself; an adult person must in no case be able to cause a child to be regarded as a sexual object. The general interest of protection in child pornography crimes is extremely im- portant with regard to children under the age of 15. The rule on freedom from liability therefore only covers pictures depicting a person who has committed the act after the age of 15. The pro- posed rule on freedom from liability cannot be applied if the act is to be considered a gross child pornography crime. Scales of penalties and degrees of seriousness The scale of penalties for child pornography crimes is imprisonment for at most two years, or if the crime is minor, fines or imprison- ment for at most six months. The scale of penalties for a gross child pornography crime is imprisonment for at least six months and at most six years. The Inquirys investigation of judgments has not revealed any reason to propose any changes in the scale of penalties for child pornography crimes. They are well in line with what applies to other similar crimes. With regard to classification of the crime in child pornography crimes, and in view of what the Inquirys investigation of judgments has shown in general, there is no reason to make any changes with regard to child pornography crimes that are only moderately serious or to be regarded as minor. Under the present system, when assessing whether a child porno- graphy crime is gross, special consideration shall be given to whether it was committed in the course of business or otherwise for profit, was a part of criminal activity that was systematically practised or practised on a large scale, or concerned a particularly large number of pictures or pictures in which children are exposed to especially ruthless treatment. In view of the results of the Inquirys investi- gation of judgments, there is no reason either to exclude any of the criteria, or to add any new ones. Another reason for this is that the criteria mentioned in the text of the law are only examples. There is, however, reason to re-formulate one of the above- mentioned criteria, i.e. pictures in which children are exposed to especially ruthless treatment. One reason for this is that no special statements or guidelines have been drawn up for what the expression especially ruthless treatment entails. This criterion can therefore create problems in applying the law and can also be interpreted in different ways. Another reason is that our investigation of judgments shows that, when assessing whether a child pornography crime was to be regarded as gross in view of the fact that the crime concerned pictures in which children are exposed to especially ruthless treat- ment, the reasoning of the courts differed. This primarily applied to cases in which the type of act involved possession. Despite apparent- ly similar circumstances, in some cases a child pornography crime was considered gross, while other cases were deemed to be only moderately serious. As a result of this, the perpetrator in the former case was often sentenced to imprisonment, and in the latter, usually to a suspended sentence combined with a fine determined on the basis of income. Against this background, the Inquiry proposes that the criterion pictures in which children are exposed to especially ruthless treat- ment be clarified and re-formulated, which could contribute to a clearer, more consistent application of the law. The Inquiry pro- poses introduction of the criterion pictures showing children who are particularly young, who are exposed to violence or coercion or who are otherwise exploited in a ruthless . The Inquiry considers that acts involving pictures of the above-mentioned type, regardless of the type of act concerned, should generally lead to the crime being considered gross. The status of the child As a rule, there is probably no injured party in crimes against public order, apart from the state. Criminalisation of a certain act may however take place to protect several different interests. It is therefore by no means out of the question for an individual person to be given the status of injured party even in such crimes. The subjects of protection in child pornography crimes are both children in general and the depicted child. In the Inquirys opinion, a child pornography crime, regardless in principle of the type of act concerned can be deemed to have been committed against the child depicted in the pornographic picture. In any case the child may be deemed to have been offended by the crime. The depicted child is therefore normally to be regarded as an injured party in a crime of child pornography. The issue of whether the child has the status of an injured party must, however, be determined in each individual case. To be able to appoint an injured party counsel for a crime other than those particularly named in the Injured Party Counsel Act, im- prisonment must be included in the scale of penalties and, in view of the personal situation of the injured party and other circum- stances, there must be reason to assume that the injured party has a particular need of such a counsel. With regard to the crime of child pornography, imprisonment is included in the scale of penalties for all degrees of the crime. If the other conditions are met, it is thus possible under present law to appoint an injured party counsel for the child depicted in a crime of child pornography, regardless of the type of act in question. In addition the Inquiry on injured party counsels (SOU 2007:6) has proposed that a new provision be included in the Injured Party Counsels Act. Under the proposed provision, an injured party counsel must be appointed in crimes that may result in imprisonment, if the injured party is under the age of 18, unless it is obvious that the injured party has no need of such a counsel. The Inquiry on victims of sexual crimes (Ju 2004:I) proposed that the person who has been the victim of a crime under Chapter 6 of the Penal Code must be entitled to free legal advice from a member of the for a maximum of two hours, be- fore the event has been reported to the . For those children who have been depicted in pornographic pictures and who have been exposed to a sexual crime at the same time, this proposal would mean a right to legal advice. It is, however, possible to produce porno- graphic pictures of children without at the same time committing a sexual crime directed at the child. Children in these cases would not be covered by this right. Moreover a child pornography crime not only includes the production of the picture itself but also other activities such as dissemination and possession of the picture. Child- ren who have been exposed to such crimes would not be included in the right to legal advice either. The very fact that child porno- graphic pictures – that can then be disseminated to other people – are produced, entails, as in sexual crimes, a violation of the victim of the crime that seriously affects their personal integrity. These people also need to be given information on the contents of the legislation, on the functioning of different parts of the legal system and on what opportunities there are for support and assistance during the course of the criminal investigation and the further legal process. In this respect, there is no reason for differentiating between cases in which a person has been victim of a sexual crime and cases in which a person has been victim of a child pornography crime. For this reason, the Inquiry proposes that people who have been portrayed in child pornographic pictures also be entitled to free legal advice from a member of the for a maximum of two hours. For a special representative to be appointed for a child, there must be reason to believe that a crime that can lead to imprisonment has been committed against the child and that it is the custodian or a person close to the custodian who may be suspected of the crime. In other respects, the type of crime is irrelevant to the question of whether a child is to have a special representative. With regard to child pornography crimes, imprisonment is included in the scale of penalties for all degrees of the crime. Under present law, it is thus possible to appoint a special representative for the child in child pornography cases, regardless of the type of act in question. Children who are portrayed in pornographic pictures may have the right to damages in child pornography crimes. This applies regard- less of the type of act the crime concerns. The causal link between the criminal act and the injury inflicted that must exist for liability for damages to come into question at all, however, is generally weaker the closer one is to the lower limit for what is punishable as a child pornography crime. It is doubtful whether damages can be paid in child pornography crimes that consist of possession of pornographic pictures of the child. A depicted child may also be entitled to criminal injuries compensation. In the Inquirys opinion, the childs need for financial compensation in this type of case may be considered to be met by the present legislation. Opportunities for the depicted child in a child pornography crime to receive compensation other than damages and criminal injuries compensation should therefore not be extended. It is important that the professionals who come into contact with cases involving children who are the victims of crime receive continual education and skills development. Education and skills development, including information on the rights of the child, child development and methods of talking with children, are required to ensure the child victims legal security. Child pornography crimes are not the most common of crimes. Only seldom do officials in the legal system have to deal with these crimes. They are crimes that seriously violate children and that can have far-reaching harm- ful effects. It is therefore important that officials are given greater detailed knowledge about child pornography crimes, such as know- ledge about childrens pubertal development and how perpetrators use the Internet in these contexts. The Inquiry wishes to emphasise that it is important that the training initiatives being undertaken in the legal system include the above-mentioned type of issues. Under present law the statutory limitation period for child porno- graphy crimes is five years for moderately serious crimes, two years for minor crimes, and ten years for gross crimes. Statutory limita- tion periods are counted from the day of the crime. For certain more serious sexual crimes against children, however, the statutory limita- tion period does not begin until the child attains or would have attained 18 years of age. Making the special statutory limitation pro- vision applicable to sexual crimes where the minimum punishment is a fine determined on the basis of income has not been considered justified. It is important that the regulatory system is designed so that it allows effective legal proceedings, not only for sexual crimes against children but also for child pornography crimes. The penal sanctions system has a central role when fighting violations that are the result of a crime of child pornography. This is particularly evident against the background of the fact that the pictures produced in recent years tend to contain more and more serious violence against children than was common previously. A child pornography crime, regardless of the type of act involved, is such that it cannot inflict physical injury on the depicted child. As with many sexual crimes, the harm caused by child pornography crimes is instead at the psychological level. Children who have been depicted in a porno- graphic picture are not always able to talk about what they have experienced before they reach their late teens, and perhaps not even then. The fact that children do not always tell anyone, combined with the fact that the crime does not result in visible harm, may lead to child pornography crimes not being discovered until a long period has elapsed.