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Sexual abuse of minors over the Internet: reforms to the Spanish Criminal Code

Posted on 04/30/2015, by María José Santos (INCIBE)
Sexual abuse of minors over the Internet: reforms to the Spanish Criminal Code

The fight against crimes involving sexual abuse of minors over the Internet is complicated. The techniques used by sexual abusers are becoming more and more sophisticated, and in consequence the risks to minors are growing. To this must be added the fact that the children affected often feel intimidated and do not report the situation.

It should also be noted that existing measures to date, such as parental control, content rating and reporting illegal and harmful content are not getting the desired results, and, when damage occurs on Internet persist in time, as the contents are available without restriction for anyone, which adds an additional difficulty, as is to face a constant risk that victims are stigmatized and humiliated again and again.

It must not be forgotten that browsing the Internet leaves a trail of information behind in the forums, social networks, and electronic trading or other sites visited. If this is gathered together and cross-linked, it can give a profile of the personality of the user concerned. This fact is taken advantage of by criminals to detect vulnerable individuals. In addition, according to information from non-government organizations about web-pages containing material related to abuse of minors, more than 80% of the victims are aged under 10 years.

Sexual exploitation of minors and child pornography constitute serious violations of basic human rights. In particular, they violate the rights of children to protection and the care necessary for their well-being, as laid down by the United Nations Convention on the Rights of the Child of 1989 and the Charter of Fundamental Rights of the European Union.

These worries and the recent relevant European directive led Spanish legislators to change the criminal law on this matter on 30 March 2015. The new regulations seek to provide further forms of protection for minors against sexual abuse perpetrated over the Internet or other means of telecommunication, in view of the ease of access and anonymity that they offer.

The main innovation is the raising of the age at which an individual can give consent to sexual acts, this having been changed from thirteen to sixteen. This means that any sexual act with a person under sixteen years old is now a crime, unless it is a question of consensual relations with somebody who is very near in age and degree of development or maturity to the minor involved.

The new wording of the Spanish Criminal Code envisages in Article 183-Ter two criminal behaviours in its attempt to fight the sexual abuse of minors on the Internet:

a) Firstly, any use of the Internet, a telephone or any other information and communications technology to contact an individual under sixteen years of age and make a proposal to meet that individual with a view to committing any of the crimes described in Articles 183 and 189 of the Code, always provided that the proposition is accompanied by some physical action aimed getting closer to the child in any way.

This criminal behaviour is the crime of grooming. It may be defined as the process by which a person deliberately befriends a child or establishes a relationship or emotional control over this minor through computer media so as to have on-line sexual contact, a physical meeting, or both, with the intention of committing sexual abuse.

This reform came at the very point in time when the Spanish Supreme Court had sentenced a party accused of grooming in its Judgement 823/2015 of 24 February 2015.

The judgement included some illustrative statements about the crime of grooming indicating that:

  • It is a crime of danger, as the sentence was not to punish physical wounding but rather the putting at risk of the sexual integrity of a child under sixteen years of age (this would have been under thirteen before the reform of the law). The sentence was a punishment for attempting to have sexual relations with somebody below the age of sixteen, relations that automatically would be a crime, whether or not there were to be violence or intimidation. This is because even if there were consent from the child, this would be irrelevant as legally outside the power of the child to give and the action would constitute sexual abuse.
  • For it to be a case of this crime, there were certain requirements:
    • Contact by technological means with a child under sixteen years of age in order to entice or solicit.
    • Proposing a meeting with intent to commit any of the crimes envisaged in Articles 183 to 189 of the Spanish Criminal Code. The crime is actually committed when the meeting proposed by the criminal is agreed to by the minor and acts intended to bring it about are undertaken.
    • Finally, carrying out physical actions aimed at getting closer to the child, in other words acts intended to win the confidence of the minor and which must have some tangible repercussion or reflection outside digital media.
    • Intent to commit any of the crimes listed in Articles 183 to 189, involving attacks on the sexual integrity of children younger than sixteen.
    • Being unaware of the true age of the minor is not a sufficient defence, unless it can be proved on the basis of some exceptional circumstance.
  • Grooming as such will be punished only when sexual acts have not in fact been performed, since they would constitute a more serious crime with a heavier sentence.

b) Any contact with a child aged under sixteen by means of the Internet, telephone or any other information and communication technology involving acts intended to trick the minor into providing pornographic material or showing pornographic images in which a minor appears or is shown.

This second illegal behaviour is an innovation in the Spanish Criminal Code, and relates to the exploitation of images related to child pornography and the display of such material. However, while this is a positive step forward in legislation, its wording is perhaps not the best possible. It would be better not to speak of pornographic material or child pornography, but rather of materials relating to the sexual abuse of minors. This is a broader concept that more accurately reflects the wide variety of circumstances arising. At the present day, new technologies are a major route for accessing material related to the sexual abuse of minors.

Police and security forces face difficulties in gathering digital evidence, because criminals use encryption techniques, servers and networks of great sophistication that guarantee their anonymity.

Moreover, the struggle is not merely a matter of punishing criminal behaviour. Rather, the aim should be to protect children and ensure an environment in which they may grow up in safety. With this aim, among other things it is necessary to take the following preventive actions:

  • Obligatory educational and training measures for children, parents and teachers concerning access by minors to illegal contents, so that they will not fall for the tricks of cyber-prowlers on the Internet.
  • An increased flow of exchanges of information between police and security forces, legal authorities, information service providers, and non-government organizations, in defence of minors.
  • The speedy elimination of all illicit contents.
  • Greater ease for laying charges and for supporting the minors involved and their families.
  • The creation of new tools and instruments for investigating, tracking and bringing to trial those committing such crimes through projects like the Advisory System Against Sexual Exploitation of Children (ASASEC). The aim of this scheme is to develop an innovatory technological solution that will improve on the technical means currently available for the fight against child pornography at an international level. Another project is INTERPOL's international database of images of the sexual exploitation of minors, the Sexual Exploitation Image Database (ICSEDB).

It is the responsibility of the whole of society to preserve the rights of minor to full development, education and socialization. It must also ensure their future sexual liberty and their moral integrity.