Thesis

Sexuality, Youth Protection & Human Rights

Graupner, Helmut
Publication Languageeng, du

"Sexuality, Youth Protection & Human Rights" - A European Priority Area

Art. VI of the Treaty on the European Union established institutionalized cooperation between the member states of the Union in the fields of justice and home affairs.

Recent Union documents (*1) declared "sexual exploitation of children" a high priority area within this field of cooperation. The Council and the European Parliament called for (some) harmonization of the domestic criminal laws in this area (*2). A prerequisite for such harmonization however is accurate knowledge of the current state of the laws and of the administration of justice within the member states. Also the requirements set by (European) human rights law have to be taken into account. Not only national actions also measures on a Union level have to meet these requirements (*3).

  • (*1) Joint Action 97/154/JHA, OJ L 63, 24.02.1997; Joint Action 96/700/JHA, OJ L 322, 12.12.1996; EP-Resolution on Sexual Abuse of Children (A4-306/97), 06.11.1997
  • (*2) Joint Action 97/154/JHA, OJ L 63, 24.02.1997; EP-Resolution on Sexual Abuse of Children (A4-306/97), 06.11.1997 (lit. 2)
  • (*3) Art. K.2

Accordingly the Council stressed the importance of a coordinated and multi-disciplinary approach. Training, information and research, so the Council, could improve the protection of children and further mutual understanding of domestic jurisdictions, create consciousness of parallels between them and thereby could reduce impediments for increased cooperation between the member states in this area; which increase the Council called an issue of common interest (*4).

  • (*4) Joint Action 96/700/JHA, OJ L 322, 12.12.1996 (preamble)

In particular the Council emphasized the importance of scientific comparative studies in this field and their dissemination within the Union, i.e. the Council stressed the importance of a network of documentation of publications, studies and laws (*5), of a compilation of the state of the law and the administration of justice within the member states (*6). The Parliament’s Committee on the Rights of Women expressed the opinion that such a comparative compilation be elaborated as quick as possible (*7).

  • (*5) Joint Action 96/700/JHA, OJ L 322, 12.12.1996 (Art. 6)
  • (*6) Joint Action 96/700/JHA, OJ L 322, 12.12.1996 (Art. 7, 3rd dash)
  • (*7)  Statement to the Committee on Civil Rights and Home Affairs, 24.09.1997 (DOC-DE\RR\336\336863, p. 44)

The ProjectAt the University of Vienna law school such a work, the study "Sexuality, Youth Protection & Human Rights", has already been elaborated as a project by the Austrian Society for Sexology (ÖGS).

The author, Helmut Graupner, a graduated lawyer, is vice-president of the Austrian Society for Sexology (ÖGS). He is working as an attorney-at-law in Vienna. He is also member of the Working Group of Experts for the Revision of the Law on Sexual Offenses appointed by the Austrian Minister of Justice in December 1996.

The study has been supervised by Univ.-Prof. Manfred Nowak, JD, who is also head of the Vienna based Ludwig-Boltzmann-Institute for Human Rights, Vice-President of the Human Rights Chamber for Bosnia-Herzegovinia and who was one of the three Austrian nominees for the Permanent Court on Human Rights. He did qualify the study as

  • "also internationally" being "the most comprehensive and most thorough scientific work in this area".

The Council of Europe, the European Youth Forum, the Austrian Ministry of Justice and the Austrian Federal Youth Council consider it important that the study be disseminated as wide as possible.

Study

"Sexuality, Youth Protection & Human Rights"

General principles found in the case law of the European Court on Human Rights suggest that the European Convention on Human Rights should be interpreted as providing comprehensive protection of the right of children and adolescents to sexual self-determination, namely both the right to effective protection from (unwanted) sex and abuse on the one hand and the right to (wanted) sexual experience on the other.

The study examines the extent to which common sexual offences concerning minors do protect this proposed comprehensive right to sexual self-determination. The analysis is based upon the findings of natural and social science as well as an extensive and detailed international survey of national legal provisions.

Source Book Volume 2 of the study presents an International Empirical Survey and an International Legal Survey.
The International Empirical Survey contains

  • (a) summaries of all available reports on the topic by international and national governmental expert commissions and
  • (b) the most important findings of all (in English or German language) available empirical studies (with a population of 100 or more) on the issue.

The International Legal Survey presents a detailed compilation of the respective provisions of the criminal law in all European jurisdictions and the most important overseas; with short tables and a country by country-survey including the full text of all the respective provisions as well as a description of the historic development.

The author studied the text of the laws, the case-law of the courts, commentaries to the criminal law and other literature and sought information from the Ministries of Justice and from University law schools in the respective countries. '

A summary of the Survey has been presented to the East-West Conference on Sexual Violence and Child Sexual Abuse, Charles University Prague, 1996. This summary has been published in the Zeitschrift für Sexualforschung (10 (4), 281-310, 1997) and it will be published in the Archives of Sexual Behavior (NY).

Legal Analysis

Volume 1 utilizes this factual basis for the analysis of the compatibility with human rights law of the protection offered to children and adolescents by the criminal law in Europe.

It presents the case-law of the European Court on Human Rights and of the European Commission on Human Rights regarding (the protection of) sexual life and examines if the criminal law in the European jurisdictions does meet the requirements set up by these tribunals.

Target GroupsThe study seems to be primarily attractive for people working in or interested in the fields of

  • (a) Child Sexual Abuse & the (European) Law
  • (b) Pedophilia & the (European) Law
  • (c) Sexual Orientation & the (European) Law (as regards human rights aspects of same sex relations of minors)
  • (d) Children & Youth Rights
  • (e) International Human Rights Law
  • (f) Comparative Law
  • (g) Criminal Law
  • (h) Criminology

Besides the analysis presented in Volume 1 this audience can use the surveys contained in Volume 2 as a source-book. This aspect as a work of reference will be valuable not only to lawyers but also to practitioners and researchers in other disciplines. It will be of special importance for (national and European) law-makers and other people involved in criminal politics.


The book