3 - Changing laws in Europe

3. Changing laws in Europe

The Council of Europe has published a report about the Convention on the Protection of children against sexual exploitation and sexual abuse

(Adopted by the Committee of Ministers on 12 July 2007
at the 1002nd meeting of the Ministers' Deputies)

The full text is here - and here in Ipce's Documentation section.

Introduction

This is not a law, but a convention between the European states, signed by their ministers who promise to follow the convention, thus to change the laws of their states according to the appointments in the convention.

	The convention obligates the states to intervene in cases of offenders and of potential* offenders.*
	There are statements against child pornography (which may conflict with the right to free speech and privacy).
	The convention asks the states to determine an age of consent - without mentioning a specific age.
	The convention pleas for jurisdiction of the states in other countries.

There have been earlier versions, since 1996. By discussing sucj kind of conventions, the ministers usually do not delete topics, usually they add paragraphs. At the end, there must be consensus.

So, the right for children to be protected against child sexual abuse has been added since then - without defining what CSA is.

Article 3 – Definitions
For the purposes of this Convention:
a. “child” shall mean any person under the age of 18 years;
b. “sexual exploitation and sexual abuse of children” shall include the behaviour as referred to in Articles 18 to 23 of this Convention;
c. “victim” shall mean any child subject to sexual exploitation or sexual abuse.

Under a., "Child" is defined as any person under the age of 18 years.
Under b., no definition is given, but some rules.
There are also many statements without an argumentation.

The kernel of the text can be found in articles 18 through 23 of Chapter 6

The full text of article 18 is quoted below

Article 18 – Sexual abuse

1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:

a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;

b. engaging in sexual activities with a child where:
– use is made of coercion, force or threats; or
– abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or
– abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.

2. For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.

3. The provisions of Article 18, paragraph 1a do not intend to govern consensual sexual activities between minors.

Suggestion for an amendment

The interesting part is, that a comparatively small amendment to remark 3 could make a very important difference. This remark says that it is not intended to strive for criminalisation of "consensual sexual activities between minors".

This is a very important remark, since it implies that the EU officially states that "consensual sexual activities" with minors involved exist and are not to be considered sexual abuse.

The problem, however, is that, although it does not address this issue in a direct way, the convention seems to suggest, or may be read by some people as if it suggests, that all sexual activities between adults and minors are to be considered as sexual abuse. This suggestion would be removed when the phrase "between minors" were removed from remark 3.

That would also force both the authors of the convention and the politicians in the various countries that have to make their national laws comply with this convention, to define how to recognize the distinction between consensual sexual activities and sexual abuse. And that's exactly the discussion I would like to have in today's politics.

So, let's think about how, when and where is the right way to address this issue and ask for a clarification whether in certain cases sexual activities between adults and minors could be considered as "consensual activities" that are not to be classified as "sexual abuse".

The text of this convention will probably be on the agenda of some future meeting of European Prime Ministers and Ministers of Foreign Affairs. Apart from the amendment I suggest here, of course more amendments or additions could be suggested for various parts of the convention.

Article 20 – Offences concerning child pornography

1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised:

a. producing [...]
b. offering or making available [...]
c. distributing or transmitting [...]
d. procuring child pornography for oneself or for another person;
e. possessing child pornography;
f. knowingly obtaining access, through information and communication technologies, to child pornography.

2. For the purpose of the present article, the term “child pornography” shall mean any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes.

3. Each Party may reserve the right not to apply, in whole or in part, paragraph 1a and e to the production and possession of pornographic material:

– consisting exclusively of simulated representations or realistic images of a non-existent child;
– involving children who have reached the age set in application of Article 18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use.

4. Each Party may reserve the right not to apply, in whole or in part, paragraph 1f.

Article 48 – Reservations

No reservation may be made in respect of any provision of this Convention, with the exception of the reservations expressively established. Any reservation may be withdrawn at any time.

Discussion

Until now, laws have been different in several European countries. The age of consent for child pornography in Germany is officially 14 - but in practice 16. In the Netherlands, it is 18. In the UK, a law to forbid also specific drawings has been proposed, but not yet enacted.

Is any influence possible? Not directly. Only via your own government, thus the national politicians - and by publicity. Many influential people had a conference in Stockholm, mentioned in the Convention. In such a conference, relatively small groups can have much influence. Maybe also scientists and human rights organizations might have influence. They might be able to ask attention for explicit mistakes of justice, for tunnel visions, for ideology.