Good day,
the beginning of our work, I will bother you with a somewhat rabid methodology. There is a reason.
Our new law introduces for the first time the concept of youth pornography into German criminal law, has many fathers. Some of them shun the limelight, while others push their way into the spotlight. We would do well to serious responsibility to keep people on the lookout. adopted
As before a number of years since the ordinary and established laws in the area of sexual offenses, was heard before from experts in the relevant fields. It is still a pleasure to read those very excellent contributions. But now, as a highly controversial, questionable amendment was through with projects, they waived the former, generous nature - a group of criminal justice professionals the hasty men seemed dark enough.
It was better that way - even before the scathing comments from the recorded peak of sexual science, art, media, psychology from.
interviewed lawyers brought light into the legal part of the topic. Their texts read is not exactly easy, and with each line, we regret more that the criminal lawyers really only one, perhaps even the less important part of the G could OTAL treat problems. Theologians, art and media professionals, soul watchers and sexologists were - invisible, rumbling - next to them in the shade and would have to be zwingendgeh ö rt.
What could I do? It seemed appropriate to read the comments carefully and debates, and (only) to cite those passages in which the authors
* of the overall problem outside the narrower subject of legal questions
received. Technically, it's not easy because the federal administration, false economy in the texts only as a PDF is online, and one has to toil with their first conversion.
One of the annoying consequences of such stinginess is - the skilled person will suffer with me - the partial loss of the correct page count. As the contributions comprise only 5-10 pages, it seems justified to quote them without giving the precise page numbers with their author. The citations refer, respectively, provided by the author at the end of the quotation, the following sources:
1) Opinion of Professor Kristian cooling (Tübingen), 06/14/2007
2) St. by Prof. Tatjana Hörnle , (Bochum), 18.6.2007
3) St. Philip RA Thiee , defense lawyers associations, 15.6.2007
4) St. Joachim Prof. Renzi Kowski (Hall), 15.6.2007
5) of St. Attorney Ralf Wehowsky (Federal Court), 06/14/2007
6) hours from Attorney General Klaus Finke (emphasis Attorney Hanover )
7) St. from RA Helmut Graupner (Vienna)
8) St. Florian by Prof. Jeßberger (Berlin)
9) Legal Committee meeting minutes 18.6.2007
for now jumping Point, the selection of the material structure of the text. I went from the question of:
What topics are in the D ialogue with the other participating subjects of importance?
collected with this purpose in mind, I consider a good one dozen provisional titles the useful as a somewhat confused crow that even old buttons, tin foil and pebbles it carries in its beak - on suspicion. You could eat it, maybe.
first General assessment of the law
second Identification of children with adolescents
third Age limit 14 years
4th Age limit 18 years
5th Slip young
6th Posing, "lascivious exhibition"
7th Personalization
8th Police tactics
9th Possession offense
10th Pornography term
11th Morality vs.. Welfare questions
12th Deterioration of the fight against child pornography
13th Actor protection
14th Basic fear of the Internet
15th Art, literature
16th EU powers, the European Court
this notebook, not much more it will be found in the appendix. Morning I will try to write a summary text of the most important aspects, always using the original sources.
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first General assessment of the law
(1) It seems wrong and out sexualemanzipatorischer view almost catastrophic, a person with criminal punishment to show for having one, provocative "image of a 17 1/2jährigen mature young man or a 17 ½ year-old fully developed young woman acquires or possesses. Given the age of 16 years given way to marry (§ 1303 para 2 BGB), are zubestrafen according to the proposed text of the law even married couples, if they have a 'manufacture have provocative "picture of their spouse or. Mankann call this not even as a throwback to forget believed times because it einederartige criminalization not yet been added. (Graupner)
(2) with the sanction 'punishment' should be used sparingly, because it contains heavy sanctions-particularly not only a sensitive evil, but also a social ethical disapproval with discriminatory effects. Specifically, so as to to ask whether this 16 - year-old und17 need the criminal protection against sexual abuse by § 182 StGB cooling).
(3) ... law of the BGHS, the notion of child pornography, where even if the actors from the perspective of an objective observer as a child wirkt.Dies makes reference to a child under 14 years may make sense, but as about young people between 17 years and young adults, given the prevailing ideal of youth from the perspective of an objective third party should be defined, is completely incomprehensible. Hierist legal uncertainty and the inevitable at the well with the most stigmatizing fact of the Criminal Code. (Thiee)
(4) We have considered very carefully all the time and therefore, I must say I am very angry about what has been presented here. (Van Essen)
(5) But it is problematic because it goes far beyond that and about such cases erfasst.Textliche descriptions of perfectly legal activities that are constitutionally protected even in the range of individuals involved. Ausübungdes descriptions of human rights is punishable. (Graupner)
(6) You can not go and say, the courts are perhaps an appropriately restrictive application of this Framework Decision auchanempfiehlt yes, carried out. It is for the legislature to regulate what Ought law. (Renzi Kowski)
second Equation Children with young
(7) This equation of children and young people and the indiscriminate application of the same rules to these two different age groups can in absurdeund dangerous. (Graupner)
(8) For a distinction between children and adolescents is repealed. This seems totally inappropriate. The term pedophilia makes sweeping a lot of different sexual deviances. The commonality of these psychological and medical phenomena is that the interaction partners of these sexual encounters children and adults. This is the decisive factor that separates the people who go through the puberty. During puberty, there is a reorganization of the sexual organization, one of the most crucial tasks is the object finding. By puberty, a person acquires an awareness of its pre-formed in childhood sexuality. (Thiee)
third Age limit 14 years
(9) had one hand at a variety of products that were distributed even then amplified by TheInternet often do not determine which age had shown children or young people who really, the other was by dieeinschränkende phrase "representation of the sexual abuse of children "and the related reference to § 176 of the Penal Code requires that eintatsächlicher abuse of a child was shown. However, this was the provocative posturing of children and the associated display reserv clothed genitals initially controversial. Clarity was dieEntscheidung BGH 3 StR 567/97, 17.12.1997 (BGH 43, 366 ff) was established, which also display some of the strange naked close bad part of a child a sexual act of some Erheblichkeitdarstellt (§ 184 c StGB old version) and Thus the elements of § 176, para 5, No. 2StGB (old version) met (BGH ibid 368). (Finke)
(10) For the evaluation of large data sets after the seizure of PCs undsonstigen media for alleged under § 184 b of the Penal Code is still used by the police, the system PERKEO. If it can this is a software that scan large data sets due to hash values and filter out child, or animal pornographic representations. However, the provocative vonperkeo Posingdarstellungen of children are recorded, so that esnach the Supreme Court's decision of 02.02.2006 is increasingly necessary to make a very time-consuming individual analysis. If the seized increasingly amounts of data but this is not to make fast. (Finke)
(11) The reference in § 184 b StGB § 176 of the Penal Code also refers to mean that only firm seat and the dissemination of writings is a crime, the appearance of the sexual abuse of children (persons under 14 years) included. As stated, this finding in individual cases was often difficult, because the actual age of the performers are not project was known and after the appearance, a neutral observer could not necessarily assume that the people shown were not yet 14 years old. (Finke)
(12) likely problem areas in both the draft law to establish clarity and largely remedial. On the one hand, the age of consent in accordance with the EU framework decision raised to 18 years, so that the "gray zone" in the age range of 13 to 16 years has no practical significance. However, this should be expected that in the range 15-18 Jahrenbei the practical application of the revised regulation is a new, more gray area, as well as the extent the age of the person depicted is not clear and an objective observer is not unique. However, this can be tolerated, especially since it is ensured by raising the age protection limit at least that the representations fall with persons under 16 years in any case under the provisions of § 184 b of the Criminal Code so that the EU Framework Decision on actionable and workable. (Finke)
4th Age limit 18 years
(13) realizes you look at the possible range in age and considered one that can be assessed in view of this wide range of possible estimates, nearly every person of 18, 19 or early 20's than under 18, it is easy to see that under the new provisions are a good part of the standard commercial pornography exposed to the hazard of being the subject of police investigations and actions and criminal prosecutions. (Graupner)
(14) Now that we have the special feature that is completed by the coming of age of physical development, in essence, that is, a distinguished 18-year-old by a 17-year-olds, objective, and the viewer with the most objective approach possible, if not impossible. (Wehowsky)
5th Slip young
(15) are similar problems with pornographic pictures in which, and apparent youth "as a performer occur. It may be of a legal age that look in fact younger, or deliberate deception, such as the promotion of a film producer it would show activities of teenagers. As with the fictional representations is that the distribution of such products is not pro-criminal injustice realized. Neither in terms performer protection or not the danger aspect of imitation results in a basic for a penalty provision. Come, Children of the "used is the prevailing opinion in the criminal science and indeed assume that such writings are to be taken under § 184b of the Penal Code, if an objective observer would regard the person as a child. This is for, and apparent Child" (for the same reasons as in fictional writings) reasonable, but can not, transfer certificate young people. "When the law enforcement authorities if the proposal should become law, boundary issues are accumulating. A man depicted on the basis of visual perception as a child classified, is usually not difficult. While it can be also questions about the comparison of thirteen and fourteen-year-old girl. But such difficulties can be increased dramatically if the law enforcement community, the impossible task is expected to assess whether sixteen or seventeen year old girls are shown, or slightly older people. In general, it does not allow physical characteristics or analysis of facial features to make such a distinction with reasonable confidence. ,, Apparent young people "to distinguish from real teenagers is difficult. But it would be no solution to be expected from the fact that the investigation on, and apparent youth" must be extended. This assumption has been shaken a big-ture share of pornography under suspicion, that are available in the relevant transactions and the Internet. You do not need detailed empirical studies to access the presumption that applies in this genre youthful look at actresses as to set-enhancing. The fact that filter out the task, not only the real young people but also young people slip from the flood of images, would not be met, should be obvious. (Hörnle)
(16) According to the jurisprudence of the BGHS, the notion of child pornography is also given when the actor acts from the perspective of an objective observer as a child. (Thiee)
(17) prepares not insignificant problems the lowering of the age in § 184b of the Penal Code in relation to adults who look like teenagers, "false youth. Article 1, point b ii of the Framework Decision extends the concept of child pornography on representations of "real people with childlike appearance," according to the terminology of German law, ie the appearance of a child or young person. The question is therefore whether § 184b of the Penal Code, the representation He covered every-grown, could be held after his appearance for a young person apply (mere risk of confusion as opposed to targeted spoofing), or whether the extent or limitations to be determined by your design. After Court of the Federal Court to up to March 2004, as amended the Criminal Code (§ 184 para 3 AR) was the offense of child pornography, where even if the actor acted from the perspective of an objective observer as a child. According to the prevailing view, this also applies to the current wording of the law. (...) The problem of transmission of this law apply to young ticket is obvious: The biological and visibly noticeable maturation to adulthood is typically substantially completed. While the - strong for an objective observer - the presence of 18-year-olds than 13-year-olds without significant expenditure of Make-up technique is rarely succeed, the visual indistinguishability of young adults and mature young people generally. In addition, occur because of the fashion, advertising and the media prevailing ideal of youthfulness is not only twenty-somethings, but also older vintages are often no different than teenagers. In contrast to the youthful appearance of childish adults is ubiquitous. To avoid criminal liability would thus also from the perspective of an objective observer aged only visually or, where old trimmed "actors into account. (Wehowsky)
sixth Posing," lascivious exhibition "
(18) Clearly sexual Actions included here even, lascivious exhibition of the genitals or pubic area. "This wording was how the entire definition of" child "-pornography, word for word from the § 2256 of the U.S. Federal Criminal Code adopted. How extensive are these formulations can be seen in developments in the U.S.. 1994, the Congress in response to a decision of the U.S. Supreme Court expressly stated that he intended for the adoption of the law that the scope of the phrase, exhibition of the genitals or pubic area 'should not be limited to nudity or images on which the genitals are visible under clothing, with Video recordings should to be covered by this provision shall not also necessary that the genitals or the pubic area is visible on the video or that the underage person is acting or posing lasciviously. (...) The now incorporated into European law formulation that is potentially covered all possible types of erotic depictions of persons under 18 years, even those held in which a young man or young woman is full. (Graupner)
(19) Although the reference to § 176 of the Criminal Code be omitted and the phrase "making a sexual act in itself" also covers the provocative posing and displaying from the genitals (f § 184 StGB). (Finke)
(20) On the proposal of the Federal Council on the Penal Code § 176 IV, No. 2 ("posturing") The proposal is a response to a decision of the Federal Court, which by the previous text of § 176 StGB IV, No. 2, of determining a child to engage in sexual acts, to be required ", prevented from looking to capture posing in sexually provocative manner (BGHSt 50, 370). This posturing may, after the proposal of the Federal Council be collected because even after sexual activity as posing in front of him (= the perpetrators) or may result from a third party to criminal liability. So once again the extent of the proposed area of criminality, and thus in an area of the recently Gosling in a comprehensive presentation of the "new sexual offenses said" that he had come to the numerous reforms in recent years to rest (Gosling, The new sex laws, 2005, Introduction para 1-16), and I have the once in relation to the proposed changes to § § 182, 184 b StGB contradicted (Lackner / cooling op 12 before § 174 StGB) and feel the light of the now proposed additional extension of § confirmed 176 of the Penal Code. (cooling)
(20 a) (...) The decisive question is whether the newly committed act deserving of punishment. This is supported by posing in sexually provocative manner when, that, according to the opinion of the Federal Council for an invasion of, sexual integrity of the child "is, the developmental ability of sexual self-determination can be significantly affected" (BT-Dr 16/3439, p. 11). This is the most important criterion of culpability, the violation of legal or risk of legal claim. This claim is true regarding the protective purpose of § 176 StGB. The provision is intended to exempt the child from early sexual experiences, thereby protecting its undisturbed sexual development (see BGHSt 45, 131, 132; Lackner / cooling supra § 176 para 1). Right was at the previous paragraph 4 of regulation also found that this legal protection may be at risk through sexual acts without direct physical contact (cf. Lackner & domestic § 176 para 4), in this non-contact acts lined up a newly acquired actions. In addition to this legal right is regarding the provocative posturing from the case to a considerable sexual activity of 184 f § iS the Criminal Code. (Cooling)
(21) This development is pornographic photographs while more than disturbed by the non-detained posing in sexually provocative ways. Last, although transient, if not, noted, "is, but yet so disturbing development, that a criminal acquisition of that is legitimate, a child destined (cooling)
(22) In particular, it allows the wording in § 176 para 4 No 2 of the Criminal Code ("definitely a child to sexual acts that in itself carries out ") to the convincing interpretation of the decision of the Supreme Court on 2 February 2006 not to punish perpetrators, the children ask, in sexually provocative way to pose. Even if the child request under the provisions assumes that emphasize the genitals and buttocks (so der Auffordernde diese Körperregionen betrachten oder fotografieren kann), nimmt es damit keine sexuelle Handlung an sich vor. In seiner Stellungnahme zum vorliegenden Gesetzesentwurf , the Federal Council, therefore, to reformulate § 176 para 4 No 2 of the Criminal Code as follows: "a child to determine that sexual acts in front of him, a third party, or itself makes" A child posing in provocative ways. would be a sexual act in front of the viewer. In the Committee printed matter No. 16 (6) 110, an in scope nor suggested somewhat extended version, by general reference to the making of sexual acts with a child, with the exception of acts that are already in Paragraphs 1 and 2 are threatened with punishment. It would also recognized the constellation that the perpetrator is a child intended, according to his previously given instructions alone in front of a camera self-timer to pose. Against this expansion, there are no fundamental objections. (Hörnle)
(23) a static picture, that is a single image with a close-up of the genital area, but no action by any person under eighteen years back, and would therefore not of § 184b paragraph 1 StGB in the proposed version detected. (Hörnle)
(24) . The verdict of the Supreme Court, on the subject of the legislature saw the so-called "posing" the need for a determination of action. The Supreme Court stated: "not the mere photographing of a naked child is punishable by law. [...] Anders is the legal opinion as to when the offender a girl asks you to spread his legs. Thus the child is determined within the meaning of 176 V No. 2 of the Criminal Code to perform a sexual act on him. "In the next Supreme Court Decision of 02.02.2006 (4 Str 570/05), which draws attention to the resulting gap in the law , has not said that the "determining" the problematic criterion was whether, but to make the "per se". The touch or manipulation of the body is under the current § 184b StGB necessary for a sexual act as defined by regulation. This gap would also be closed, without abandoning the restrictive features of determination. By now solely on the vague and subjective terms highlighted in the sexual act should be remedied, could in practice the same images that are harmless-effect possible, and impunity are among the holiday slides of a father, to prove the hard disk of a pedosexual motivated punishable. (Thiee)
(25) The new version would capture signatures, sexual acts, and I emphasize actions of persons under 18 years in approach. That would, of course, clearly the case when a film would be made available on the Internet, where you can see the process as posturing. But if it is to static images is, that is, one frame to see where the genital region, then that no action as the subject of writing plays. (Hörnle)
(26) ... but the right property is to be violated by the posturing, because the development is sufficiently disturbing for some children and adolescents. (Cooling)
7th Personalization
(27) One could also imagine an individualizing decision that certain groups of victims (eg women, older "young people) required in individual cases to demonstrate that it developmentally at their lack of resilience. Such proof asked about § 182 II StGB, when he assumes that "the lack of have ability of victims of sexual self-determination "by the perpetrators used to be. This property of the victim must be held by the court in each case (see BGHSt 42, 399, 402 and Lackner / cooling supra § 182 para 6). (cooling)
(28) is because of the vulnerability of children as special pornography performers no doubt it is a question whether we also need young people such protection. This will be for people under 16 years of affirmative rather allowed to young persons over 16 years. The planned treatment of child and adolescent pornographic writings for the age group of 16 - and 17-year-olds in any case doubtful. Decision may not be the pursuit of European unification, but the question of whether these can withstand older "young people the suggestion. Should this question not generalized in the affirmative or the negative of age groups, so also here to a more individualized solutions to think. (cooling)
(29) Since the legislature has, however, the concept of sexual activity is insufficient definition exists on the relationship of subjective and objective criteria within that term uncertainty. From this effect is still the sub-criterion of indecent assault, the lustful intention, in the elements of § 184f of the Penal Code after. This leads to a normative ambiguity on cases with ambivalent external appearance. . In ambiguous cases, it is in practice, therefore, ultimately, on the determined intention of the offender in (Thiee)
8th Police tactics
(30) often find themselves on the Internet and in other products with provocative images of naked children Posingbildern which are to be regarded as pornographic. Whether there is collateral such writings suspicion because § 184 b StGB, could be in doubt after the above-mentioned decision of the Supreme Court. At the last meeting of the central office managers in Naumburg is general agreement was also reached that is based on general experience one which obtained the possession of such images, even in the possession of writings that contain the "real" representation of the sexual abuse of children, so that reasonable suspicion exists under § 184 b StGB. The courts have so far been largely followed this reasoning and have applied for search warrants issued. Further investigations have confirmed the existing suspicion then the vast majority. (Finke)
9th Possession offense
(31) A barely conceivable alternative would be to extend the child-protection to the young people the requirements for the youth pornography compared to increase of child pornography or not all alternatives are not as committed to holding the sense of § 184 explain b IV 2 of the Criminal Code to be applicable. Then the child pornography would not be treated as a flat rate of the juvenile pornography. (Cooling)
(32) The worse offense against property under existing law already put forward concerns, even if it is not just about children, but the much more benign adult pornographic magazines. The new regime means a criminalization of many citizens. While speculating about the users of child pornography still possible that it is strange nerds or people trade with the compulsive collecting Rieb is assumed that pornographic images of sixteen-and seventeen-year-olds in large numbers on the Internet and also in the range of, adult stores can be found "and there are similar number of consumers. store probably in German cabinets and drawers, and on Computer hard drives of millions of such images, which bring the respective owners of the entry into force of the proposed amendments without further action, only by virtue of ownership, punishment (and even to imprisonment as a minimum sentence!) with it an absurd result. is to be feared even a long-term weakening of the standard effect due to the fact that the law enforcement authorities Every man such crimes can not pursue a systematic course. (Hörnle)
10th Pornography term
(33) According to the prevailing opinion to be regarded as pornographic as defined by § 184 of the Criminal Code not any depiction of sexual acts, but only one that coarsens, emotional-individualized remuneration excludes a large extent, the people for the mere (replaceable) Object sexual desire or activity makes (so-called simple pornography). . Contrast is seen with a participation of children within the meaning of § 176 para 1 of the Criminal Code, ie persons under 14, any depiction of sexual acts as pornography (Case of the so-called hard pornography), which is due to the laid down in § § 176 ff StGB absolute taboo of sexual acts with children. (Wehowsky)
(34) An interpretation of any youth pornography than to look hard "pornography would be located after the text of the government bill rather close. (Wehowsky)
(35) The Framework Decision defines therefore the concept of pornography, but rather puts him ahead of (Wehowsky)
(36) The problem when you criminalize pornography in certain respects, is that there should rely on an empirical basis. The research is in my opinion not so far as to be able to say how pornography really works. Whether it inspires imitation, whether there is a certain catharsis in the form, not detectable. Certainly one can say that change certain fantasies through the consumption of pornography. But it is the question of whether this so abhorrent it may be a case for criminal law is. (Thiee)
(37) I think the draft leaves open what is now understood to be actually at a youth pornographic magazine. Namely, whether it comes to pornography in line with the overall concept of pornography, with the participation of young people, or whether, as in children, in principle, the presentation of any kind of sexual The actions codified § 184 b StGB falls. The first sounds like a play on words, but in many areas of considerable importance. According to the prevailing view is that is not any depiction of sexual acts to be considered pornography, but one that coarsens, which excludes the emotional individualizing compensation, so degrades human beings, reduced to an interchangeable object of sexual desire or activities. On the other is with a participation of children, ie persons under 14, any depiction of sexual activity viewed as pornography, as a case of so-called hard pornography. This also has quite a reason, namely, in the prevailing in our absolute taboo of sexual acts with children, as was also found in § § 176 ff StGB expression. Now, if the concept of youth pornography, which follows in the draft without any differentiation of the concept of child pornography, would have the same content as that of child pornography, we would have a substantial expansion of the event covered issues. The concept of the sexual act is in fact interpreted the law very far, according to the number of publications, including the very large fall in the evening series, the art film comes to intelligence literature as much into consideration. (...) (...) (The protection of young people would be even with a narrow version of the concept of a reasonable period of pornography. (Wehowsky)
(38) Indeed it seems to me that I was lying on the written comments clear, the main problem in the field of pornography. (Renzi Kowski)
11th Morality vs.. Welfare questions
(39) role of sexual offenses, as the sharpest weapon of the state, therefore, is to protect human dignity in this sexual of serious injuries. It restricts other hand, a sexual autonomy in favor of other goals (such as the protection of moral beliefs or social normality performances), so It hurt himself this dignity. (Graupner)
(40) objections but against the raising of the age of the victim to 18 years. These concerns can not refute the fact alone that it in itself quite rightly points out that it was "only" a raising of two years of trade and that this raising takes place within the group of young people. Even two years have not low time and the collection of all young people as victims worthy of protection is in need of justification. (cooling)
(41) If the current protection of children, actor "of sexual abuse of children in pornographic magazines (cf. BGHSt 47, 55, 61 and Lackner / cooling supra § 184 b para 1, with further references) to extend the protection of young people, this has to be justified by their need for protection. Otherwise, this extension of criminal law violates the principle of subsidiarity. (Cooling)
(42) There is no criminal provision, which is designed to prevent run-age customers with prostitutes, although such contacts may be probably more harmful than looking at a pornographic magazine (Hörnle)
(43) This is obvious dangers for imitation. That consumers of pornographic films to mimic be encouraged is to stop in relation to acts with children necessarily. Young people are the desired sexual partner, should lead to imitation but are not a criminal offense: Apart from the special cases of the fee payment or the exploitation of a necessity is the sexual contact with sixteen-or seventeen-year-olds is not prohibited (Hörnle)
(44) . Since the legislature, however, the concept of sexual activity has poorly defined, is about the relationship of subjective and objective criteria within that term uncertainty. From this effect is still the sub-criterion of indecent assault, the lascivious intent, 184f in the elements of § Criminal Code, according to (Thiee)
(45) The condition that a sexual act in itself, however, remains unclear. This has led to numerous events of the 13th Section have additional normative characteristics to develop their specific protective function and so may be punishable in the relevant field of sexuality to be specified. The formula of § 184f 1 remains in itself so far no function. The margin of space, which makes the concept of substantial sexual act openly, that is a gateway for moral judgments, the "by replacing the reference to indecent assault" should be closed initially, and runs extent the objectives of the 4th CTRL against which tried the crimes of the 13th to tie section to objectively clear of legal violations. (Thiee)
(46) appears in the discussion about sex offenders there, according to the former head of the psychiatric university clinic in Hanover, Eric Wulff, so as to have become controversial issues such as sexual abuse as a portal for efforts to constitutional principles and scientific findings to throw overboard when it comes to supposedly self-evident truths and moral goals and values is higher (Thiee)
(47) Whether the mere protection from the embarrassment of an embodied memory the use of criminal law justifies seems questionable, especially as a criminal protection against the existence of other, possibly much more embarrassing memorabilia (love letters, tattoos o. A.) does not exist. (Wehowsky)
(48) also a further, some authors discussed (albeit in the literature for lack of detectability largely rejected protection aspect, namely a possible incitement of the viewer to engage in private sexual acts on children, is about young people is not incompatible as a criminal base into consideration, because sexual acts with young people are not a priori punishable. (Wehowsky)
12th impairment the fight against child pornography
(49) None abused or endangered 10-year child is served, that are (partly in Germany and Austria this week even general voters) 17 year old young men and women indiscriminately placed on his level. On the contrary, it can happen that are so unnecessarily burdened law enforcement authorities have not sufficiently establish the necessary resources for the so urgent and important effective fight against the real child abuse, child prostitution, the real and the real child pornography.
(50) you should not be implemented, because they contradict truth in the fight against abuse, against the real child pornography, child prostitution against the real, against the real child abuse. For there are two possibilities: If the penal provisions against child pornography without distinction of under 14-year-olds to 14 - extend to 18-year-olds, some of which are eligible to vote, some of marriageable age are fully developed young men and women, then you have either a massive overload of the law enforcement authorities, if you take the rule seriously. You have to follow more than in the case of real child pornography. Such a thing can be seen, but much lighter than the real child pornographers, who sit somewhere in distant countries, and that their techniques to disguise himself. If this is taken seriously and prosecuted, then the law enforcement authorities may be clogged with masses of things that they are pursuing and will not have the time and have the means to track the real child pornography. The other option: Ignore the law on juvenile pornography, or at least in the 16 -, 17-year-olds. Also undermines the protection of children, is urgently needed. It undermines the principle of respect for the law, if one creates a law and at the same time assumes that the law enforcement agencies, will not eat anyway so hot and so strong that not pursued is. Both ignore or consistently following and thus will no longer have the time for the really bad thing is, are the children who are victims of sexual exploitation, child pornography, child abuse, very, very bad and for those who are to be protected counterproductive. Precisely because we are child prostitution, child pornography, sexual exploitation of children and 16 -, and 17-year-old even in our culture any more children - want to fight and need, you should follow the example of Austria and implement this design or not at all restrictive and question the competence basis. (Graupner)
(51) see this, one must that when fall under the headings of the concept of art, art para 5 3 Basic Law, the Court of Federal Constitutional Court in each case, the balance between the protection of goods, ie protection of minors on the one side, freedom on the other side has to take place. A heavy burden of law enforcement and a difficult balancing constant in individual cases is predictable. (Wehowsky)
13th Actor protection
(52) Since there is no categorical difference between fourteen-and seventeen-year-old is in § 182 paragraph 1 StGB the increase in the age of consent not to criticize it is about the same Protective purpose, the protection of minors from negative imprints. § 184b of the Penal Code but is based on a complicated idea protection. The prohibition of the dissemination and possession of child pornography can not serve to protect the children depicted in the illustration, even in real events, as they are at the time of distribution far from over. So it can go only to the protection of other children that could be misused in the future. Child pornography based abstract danger to other children, either because of consumer demand as part of an illegal market for new goods (keyword: Actor protection), or because some consumers might be encouraged to abuse children themselves (Keyword: imitation threat). (Hörnle)
(53) at whether free action is to argue that minors should be preserved to protect its own development earlier than actors are involved in the mechanisms and values of the pornographic industry (Hörnle)
( 54) Especially with realistic depictions of the sexual abuse of children, such ideas are plausible. Such reasoning tests fail when it comes to the newly created sector of the youth pornography. The only reason why the production and dissemination of youth pornography can ever be classified as criminal offenses, is that young people should be held for their own protection cast roles. (Hörnle)
(55) The only reason why the production and dissemination of youth pornography can ever be classified as criminal offenses lies in the fact that young people do not want to become actors. In fictional youth pornography, there are no actors, said this argument. (Hörnle)
14th Basic fear of the Internet
(56) guided by fear crime policy: the present design is a general problem of the criminal legislation of recent years: the increasing uncontrollability so-called new media leads to the diffuse anxiety that could be hidden in the labyrinths of interconnected streams incomprehensible crime. This fear increases in some cases to outright panic, which is met with a criminal check, which is not an appropriate means of control. One problem here appears far from the obvious care and concern for political and police actors and because of the victims of severe sexual offenses. for criticism but is a control policy that the security they promise could redeem only if they could ensure a comprehensive, quasi-totalitarian control of the content of communication. . It should be noted in particular that pornography in general 'Only' communication about sexuality, but not sexuality itself (Thiee)
(57) In conclusion to point out that the factual facts of pornography offenses are anachronistic because they reflect in any way the new technologies of dissemination through the Internet (for detailed Hörnle in: MüKo-Criminal Code, § 184 para 4 f., § 184 b paragraph 13..). The need for reform is the current draft does not, unfortunately. (Renzi Kowski)
(58) I can remember when I was very young and we took the train pulled away and my parents always took me to the station theater. Or the great pictures that I never see at home was allowed. That is so no longer, but there is the internet and in this respect is the provision of § 184 StGB way or an anachronism, you should think about when finally the reform of sexual offenses will be addressed. But I do not think that will take place on the basis of this draft. (Renzi Kowski)
15th Art, literature
(59) It is hardly to explain why it should be a criminal offense to include in a pornographic novel. For the interests of the minors is enough to § 184 of the Penal Code entirely. The stricter standard prohibition of § 184 b StGB is disproportionate. (Renzi Kowski)
(60) Would understand the concept of youth-pornography in the same broad sense as in children, this would have a considerable expansion of issues covered by the event to follow. Given that sexual activity with young people - in contrast with children - are generally permissible and also due to appear at the age of 14 and 18 held sexual maturation in the reality of life frequently, the number of writings is very high. Their number is increased by the fact that this phase of life and its difficulties are the subject of dramatic or downright enlightening presentation imposes. (Wehowsky)
(61) As far as the writings of the fall within the scope of the freedom of art (Article 5 paragraph 3 sentence 1 GG) has to take place after the decisions of the Federal Constitutional Court in each case, the balance between the protection of § 184b StGB goods and the freedom of. (Wehowsky)
16th EU powers, the European Court
(62) appears above, the question of the legal basis of the Framework Decision interesting. The European Union should indeed, as the German Society for Sex Research (DGFS) rightly points out in its opinion, have exceeded their powers parts of the Framework Decision. (Graupner)
(63) It would therefore be worth considering whether this issue should not be fed to a clarification by the European Court of Justice before the Framework Decision is transposed into national law uncritically. Even more so than Germany, which until pronounced in the final stage of the legislative process against the indiscriminate age limit of 18 years and the definition of "child" in Article 1 lit. Wanted to add a differentiated ages. (Graupner)
(64) situation is different if the legislature has scope, which he can fill in accordance with its own criminal policy ideas. Such margins under the present law can be - as far as the general outlines of the national legislature itself explicitly (in this example with regard to the criminalization of child pornography in Article 3 paragraph 2 and Article 8 paragraph 2 in conjunction with paragraph 1 of the Framework Decision) or implicitly (in this case leaves about with a view to defining the terms "prostitution" and "pornography") the decision on the scope of criminal liability. The full exploitation of these margins may be even be necessary in certain circumstances (Jeßberger)
(65) In all these cases, the change of the German Criminal Code not in my view by pointing to external implementation, for the Federal Republic of Germany and thus be the reason for the federal mandatory standards. In that regard, the draft regulations require an independent criminal policy justification. The decision of whether they actually provide a criminal offense, whether they are indeed worthy of punishment and criminal in need of hits, but the German legislature. (Jeßberger)
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