EU-Plan: European-wide criminalization of juvenile sexuality up to18

By Alexander Weber, HOSI-LINZ

 (taken from the Euroletter 91, Sep. 2001, This EuroLetter is available in pdf-format at < http://www.steff.suite.dk/eurolet/eur_91.pdf  >)

The EU-Commission proposed a "Framework Decision on combating the sexual exploitation of children and child pornography". This framework decision - as opposed to its title and the strong words of Justice-Commissioner Vitorino - would less serve the aim of combatting sexual exploitation (which measures appear remarkably cautious) instead it would lead to europewide massive criminalization of juvenile sexuality up to the age of 18 (!).

The Austrian Society for Sexology (ÖGS) therefore sent a letter to the President of the European Commission Romano Prodi (see below). Similar letters have been addressed to Justice-Commissioner Vitorino, to EP-President Fontaine and to the Swedish and to the Belgian goverment (holding EU-presidency in 2001).

Take also action against this massive criminalization of juvenile sexuality by far not known in any of the European states. Write to the following persons:

The text of the proposal: Framework Decision: http://europa..eu.int/smartapi/cgi/sga_doc?smartapi!ceexapi!prod!CELEXnumdoc& lg=EN&numdoc=52000PC0854(02)&model=guichett 

Explanations:
http://europa.eu.int/eur-lex/en/com/pdf/2000/en_500PC0854_01.pdf 

Press Release of the Commission:
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/0 0/1530|0|RAPID&lg=EN  

Legislative Procedure (current state of affairs): http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=161008

The Letter of ÖGS

President Romano Prodi European Commission Brussels, Belgium

In Re: Proposal for a Council framework decision on combating the sexual exploitation of children and child pornography (2001/C 62 E/25, ABl. C 62 E/327-330)

Dear Mr. President,

Although we are delighted to see the battle against the sexual exploitation of children become a union-wide endeavour especially since measures taken would transcend what can be done on a national level - it is with great concern that we greet the commission’s above-mentioned proposal.

We would go so far as to deem the initiative taken by the commission in this matter not only as being unsuitable, but also as carrying the potential of placing at risk the very ones it is trying to protect, namely the minors of the European Union. The proposed framework decision does not fully protect the rights of children and adolescents in regards to sexual autonomy, integrity and self-determinism. On the one hand, measures laid out to fight the sexual abuse and exploitation of children are both insufficient and deficient. On the other hand, a sense of reality is missing in dealing with the lifestyle of today’s youth, resulting in an absurd curtailment of their rights to sexual self-determinism.

It appears to us, that the basic problem with the commission’s draft, whether referring to children or adolescents, is the undiscerning use of the word 'child'. Especially as regards sexuality, a five-year-old child and a 17-year-old teenager cannot and should not be categorized alike. No language on earth uses the word “child” to designate persons who have grown past early teenage. Were one to do this - as is done in the present case - and implement the same criteria for sexual protection and abuse to a five-year-old child and a 17-year-old adolescent, the results would be absurd or dangerous or both.

No minimum age As it stands now, the outline sees no need to set a compulsory minimum age for consensual sexual activity, so as to insure the plan’s effectiveness; despite the fact that all the EU member states as well as other European and non-European countries have determined such age limits, which are nowhere under 12 years of age and, generally, around 14 or 15. (cf. Helmut Graupner: Sexual Consent - The Criminal Law in Europe and Overseas, Archives of Sexual Behavior, Vol. 29 (5) 415-461, NY: Plenum (2000), copy enclosed.) According to the proposed framework decision, sexual activity with children would only be considered as pornography, prostitution, violence or inducement - and, likewise, only then punishable - if the child were induced or coerced in some way (Art. 2). If there was no inducement, no crime can have been committed. We find this deficiency in protection unconscionable, in that it would leave it open to the EU member states to decriminalize paedophilia, to the extent that no inducement of the child has taken place.

The Member States are merely required 'to consider prohibiting natural persons from exercising activities involving supervision of children when they have been convicted for one of the criminal offences provided for' (Art. 5 par. 5). That this is not an absolute requirement is perplexing, indeed. We see, as well, a deficiency for victims in the ambiguity of the phrase 'adequate legal protection and standing in judicial proceedings' (Art. 9), and the fact that only private 'and not public' bodies can be held responsible for their offences (Art. 1 lit. d, Art. 6 & 7).

These insufficient and half-hearted measures proposed for the protection of children stand in direct opposition to the near draconian limitations prescribed for the sex lives of adolescents.

Seduction/Enticement as a Criminal Offence Just as the parameters for describing a criminal offence for 'inducing' sexual activities involving children are insufficient, the use of these same parameters in regards to teenagers shoots dangerously past the mark. “Inducement” and “seduction” are essential components of human sexuality. “Seduction” is what makes intimate contact interesting. Without it, human sexuality would become a dreary business devoid of any and all eroticism. Whoever would not be able to “seduce” or “induce” in this sense of the word is ripe for some sexual therapy. To make “seduction” of sexually-capable persons beyond their early teens a criminal offence, or to limit their intimacy by making punishable the person who initiated the contact is not only absurd; it is inhumane, when one considers the ramifications of over-meticulous investigations and required - and, therefore, public - statements during court proceedings.

Such absurdity reaches a peak when the proposed framework decision makes it compulsory to apply this criminal offence definition to contact between two teenagers (for example, for a 14-year old, who “seduces” his 17-year old girlfriend) and even to married couples; despite the fact that, in some EU Member States, the age of consent for marriage lies (far) below the age of 18. When one considers that the act of “seduction” or “inducement” through negligence is likewise to be penalized (In contrast to the elements of an offence regarding child pornography (Art. 3), there is no restriction as to intent in Art. 2.), one then suspects, that the authors of this outline could not possibly have wished for the consequences to which such regulations give rise; rather they rashly formulated the (grotesque) elements of crimes, counterparts of which are found in none of the Member States (c.f. Graupner, l.c.). In the commission’s commentary to the proposed measures, there is not the slightest justification given for determining these extensive offences as such.

Non-economic remuneration Also unspecified are 'other' offences (beyond coercing, inducing, profiting from), which would facilitate the prostitution of a child (Art. 2 lit. a). It remains fully unclear as to what behaviour is meant by this formulation, especially since the main causes of adolescent prostitution - beyond economic need - are deficiencies (esp. emotional impoverishment, abuse, lack of love, alcoholism) in the birth family and, in the case of same-sex prostitution, discrimination and (one’s own) denial of homosexuality. What, then, is meant by “other” (non-economic) “forms of remuneration” (Art. 2 lit. b) ii)) or by “influence over the child’s vulnerability” (Art. 2 lit. b) iii)). One could mean anything and everything. One of the consequences of such a boundless list of offences is that practically every intimate, adolescent relationship would be held up to criminal scrutiny; a situation wholly unworthy of a 21st-century, constitutional state, which prides itself on plurality, openness and tolerance under the law. Moreover sexology demonstrates that repression worsens the problems in connection with adolescent prostitution which can be solved by easily accessible and accepting social work only.

Visual portrayals as a criminal offence We find it imperative to oppose the proffered definitions of child pornography, in that they proscribe any 'commercial or non-commercial' lascivious exhibition of the pubic area (not to mention “the genitals”) of “children” less than 18 years of age, even when these depictions originate from adolescents, themselves. Following this logic, a 17-year old boy, who snaps photos of his 17-year old girlfriend in a skimpy bikini, is liable to be prosecuted as a producer of pornography. While, we certainly don’t suspect the authors of this proposition as having had such a scenario in mind - especially as the proposition, itself, carries no grounds for such - it becomes painfully obvious that they adopted - uncritically and word-for-word - the corresponding, American regulation (§ 2256 (2) U.S. Federal Criminal Code), without first considering the absurd and grotesque effects brought about by that ill-formulated code.

Further, we find pan-European legislation, which criminalizes mere drawings and even simulated depictions, too far-reaching to be acceptable. One should neither discourage nor deem pathological the sexual interests in teenagers. For today’s youth, sexual relations and sexual reality are a central and, for the most part, positive component of their way of life. The depiction of such relationships (for example, by sketching or drawing), whereby a teenager does not actually work on the production of actual pornography, cannot be punishable under the law. And, as far as children are concerned, it seems to us unwise to prohibit paedophiles from employing even those non-damaging outlets for their tendencies. By demanding the paedophile eschew every means of expressing his inclination (even drawings done privately and which won’t be shared with others), one runs the risk of fostering the very (criminal) behaviour one is trying to eliminate.

We must also take exception to the reversal of the burden of proof in regards to the age of performers in pornographic productions. Rarely can one proclaim with certainty that someone who is less than 25 is not, as well, less than 18 years of age - which places a permanent suspicion of criminality on these productions. Since the consumer is hardly in a position to know - much less prove - for certainty the age of pornographic performers, the result is a de facto prohibition of pornography with performers who are less than 25 years of age; and this we strongly reject.

The right to complete sexual autonomy

To summarize, we reject the proposed framework decision as a double-edged sword, which on the one hand provides insufficient protection against all forms of unwanted sexuality and, on the other hand, inhibits the rights and freedoms for desired sexuality. Whereas the proposition allows for the de-criminalization of the (non-seducing) paedophile, it ignores the fact that, in regards to adolescents (as stated by the British Royal College of Psychiatrists), what matters is the quality of the relationship and not the age of the partner. Equating a 5-year-old child with a 17-year-old adolescent not only undercuts the authority of urgently necessary rules of protection, it exposes them to derision.

We find the proposed measures especially dangerous, not only because the list of offences becomes a list of high crimes compelling an international code of justice (which, for actual rules of protection appears to be necessary); but, because once approved by the Council’s unanimous decision, it may be impossible to ever again repeal them.

In conclusion, it is of the utmost importance to caution against the acceptance of these regulations in their present form. Not only would they negate more than a decade of intense and widely-supported engagement in our fight to decriminalize consensual sexual contact and relationships between males, aged 14 to 18, and male partners more than 19 years of age (the notorious, anti-homosexual special penal code law §209 whose repeal the European Parliament vehemently requests); any consensual sexual activity of 14 to 18-year-olds, regardless of the gender of those involved, would be subject to criminal suspicion.

As we cannot sanction such a state of affairs, we, hereby, register our concern and objection and kindly ask you to revise the proposal. - - -