MEMO/10/107
Proposal for a Directive on combating sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA
On 29 March 2010 the European Commission adopted a proposal for a new Directive on combating sexual abuse, sexual exploitation of children and child pornography. It follows up a previous proposal tabled in 2009. The Directive, if approved, will replace current EU legislation dating from 2004 (Framework Decision 2004/68/JHA).
What is the problem to be addressed?
‘Sexual exploitation’ and ‘sexual abuse of children’ refer to different forms of acts, such as sexual relations with a child under a certain age or under coercion, child prostitution or child pornography. They are particularly serious crimes against children, who need special protection and care, and produce long-lasting and serious harm to child victims.
Children fall prey to these crimes because certain factors make them particularly vulnerable, e.g. gender, young age, disability, poverty and social exclusion, as well as the lack of a sound social support network.
What is the scale of the problem?
While there is no doubt that sexual abuse and exploitation of children is a serious problem, there is a lack of accurate and reliable statistics on the nature of the phenomenon and the numbers of children involved. This is due to differences in national definitions of different child sexual abuse and exploitation offences, very significant under-reporting by victims, and inadequate data collection mechanisms. Studies suggest that a significant number of children in Europe - between 10% and 20% - will be sexually assaulted during their childhood.
Research also suggests that this phenomenon is not decreasing over time, but rather that certain forms of sexual violence (such as abuse of teenagers) are on the rise. The child victims portrayed in pornography are getting younger and the images are becoming more and more violent.
Why is the Directive needed?
Fighting these crimes is very difficult. Children are vulnerable, ashamed and afraid to report what has happened to them. The Internet makes it easier to groom (the on-line solicitation of children for sexual purposes) children or to produce and distribute child pornography. In some cases, such as sex tourism or child pornography, abuse happens in different countries, and this, together with national differences in legislation, makes it difficult for authorities to act. Some convicted offenders go on abusing children after their sentences. Furthermore organised crime can make a high profit from it with limited risk.
National legislation covers some of these problems to varying degrees. However, it is not strong or consistent enough to provide a vigorous social response to this disturbing phenomenon.
The main EU instrument to fight against child sexual exploitation, Council Framework Decision 2004/68/JHA, introduces a minimum of approximation of Member States’ legislation. Due to the short existence of this legal framework, it has a number of shortcomings.
What is new in the proposal for a Directive?
The proposal repeals framework decision 2004/68/JHA and builds upon the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and provides further added value. It follows up on a 2009 Commission proposal which was being negotiated and lapsed with the entry into force of the Lisbon Treaty.
The new Directive covers action on different fronts:
On criminal law in general, serious forms of child sexual abuse and exploitation currently not covered by EU legislation would be criminalised, and minimum levels of penalties will be set to ensure that sanctions reflect the gravity of the crimes.
On developments in the IT environment, new forms of sexual abuse and exploitation facilitated by the use of the Internet would be criminalised, such as grooming or viewing child pornography without downloading the files
On criminal investigation and initiation of proceedings, a number of provisions would be introduced to assist with investigating offences and the bringing about of charges, in the absence of reporting by the child victim
On prosecution of offences committed abroad, rules on jurisdiction would be amended to ensure that child sexual abusers or exploiters from the EU face prosecution even if they commit their crimes in a non-EU country, via so-called sex tourism
On protection of victims, new provisions would ensure that abused children have easy access to legal remedies and do not suffer for participating in criminal proceedings e.g. by limiting the number of interviews, providing for legal aid or for a special representative
On prevention of offences, special programmes should be accessible for offenders to prevent them committing new offences, and prohibitions imposed on them from carrying out activities with children. These should be implemented throughout the EU. In addition, national mechanisms to block access to websites with child pornography, which are most often located outside the EU, should be put in place under the supervision of judicial services or the police.
Why is the European Commission willing to adopt a new Directive on areas already covered by the Council Framework Decision?
The Framework Decision (2004/68/JHA) on this topic currently in force introduces a minimum of approximation of national legislation, but it has a number of shortcomings. It approximates legislation only on a limited number of offences, does not address new forms of sexual abuse and exploitation using information technology, does not remove obstacles to prosecuting offences outside national territory, does not meet all the specific needs of child victims, and does not contain adequate measures to prevent offences. This calls for a substantive improvement of EU rules.
Additionally, the entry into force of the Lisbon Treaty (on 1 December 2009) provides considerable advantages for new legislation to be adopted in the field of Justice and Home affairs from now on. This also justifies the proposal for a new Directive.
Legislation will no longer need to be approved unanimously by the EU Council of Ministers (i.e. national governments). Instead, it will be adopted by a majority of Member States at the Council, together with the European Parliament. A single country will not be able to block a proposal.
Implementation at national level will also be improved. The Commission will be able to monitor the way in which Member States apply EU legislation. If it finds that EU countries violate the rules, it will be in a position to refer the case to the European Court of Justice.
Die für die Innenpolitik zuständige schwedische EU-Kommissarin Cecilia Malmström hat vorgeschlagen, Rechtsvorschriften einzuführen, die die Mitgliedsstaaten verpflichten, schärfere Strafen für Sexualstraftäter einzuführen. 

Hierzu soll insbesondere das so genannte grooming, also das gezielte Suchen nach potentiellen Missbrauchsopfern in Onlinenetzwerken, oder das Betrachten solcher Inhalte per Stream unter Strafe gestellt werden. Daneben sollen der Opferschutz und Präventionsmaßnahmen ausgebaut werden. Weiterhin sollen die Staaten verpflichtet werden, Seiten mit entsprechenden Inhalten zu blockieren. Insgesamt enthält der Entwurf der Kommissarin 22 Straftatbestände. 

Die Vorschläge der Kommissarin müssen, sofern das Europäische Parlament und der Ministerrat zustimmen, von den Staaten in nationales Recht umgesetzt werden. Für einen Beschluss im Ministerrat ist keine Einstimmigkeit erforderlich, so dass die Vorschläge nicht von einem einzelnen Staat blockiert werden können. 

In Deutschland hat die schwarz-gelbe Bundesregierung die im Jahr 2009 beschlossenen Netzsperren ausgesetzt. Kritiker bemängeln, dass die Blockade von Internetseiten die Netzneutralität gefährde und zudem leicht zu umgehen sei.

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