Germany wants to lower punishment for CSAM

News
1

Every expert warned them that a minimum penalty of one year would lead to a high number of undesirable cases that can’t be dropped and must be processed. This reform has been in action for a year and has caused; teachers, parents and victims of abuse to be charged with one year of prison for accidentally discovering it on their students/children device, or having it sent to them without asking.

Every legal expert has warned them about this, but the society was in lynching fever. Current gov. has given promise to review not only the penalty, but the whole paragraph to make sure it’s appropriate. Prosecutors, Judges and other legal experts have come forward and asked for this increased penalty to be reverted ASAP. With one judge filing a special complaint to the highest court which only judges are allowed to file; he refuses to convict a parent for warning other parents by showing what she has discovered.

4 Likes
2

I… I just can’t anymore, with this country. They take one step back and then they do a backflip and fall on their necks.

3 Likes
3

Damn, sounds like the original law was flawed as fuck. Definitely in need of a tuneup.

3 Likes
4

Honestly, this sounds to me like a matter of prosecutorial discretion and case handling, rather than anything else.
I do generally think that involuntary in-patient commitment and psychological treatment are better options than bona fide incarceration for CSEM crimes, but the issue with raising that sort of concern is the issue of ‘determined recidivists’ and the risk of understating the harm caused to children by way of CSEM production and possession.

I think sentences (1-5 year) are appropriate only in cases where the risk is low, but long-term sentencing options should be considered.

1 Like
5

I’ve always believed that this and drug possession should be treated somewhat similarly.

There’s a big difference between production and possession, and addicts shouldn’t be treated like criminals but as people who should be provided help, assistance and the opportunity to ween themselves off and on to harmless alternatives.

2 Likes
6

You can’t really compare the motive for criminalizing mere possession of hard drugs with the rationale behind criminalizing CSAM possession, as opposed to production or even distribution. Countries have tried this approach and found that not also prohibiting mere possession, a loophole still existed by which producers/distributors of such content could continue to facilitate the commoditization and abuse of children.
As various judicial systems have observed, one cannot possess this type of material without receiving it, and as technology and commnunication mediums evolve, it would become increasingly more challenging to feasibly enforce prohibitions on distribution.

With drugs, we’re dealing with physical, chemical substances that can be cultivated or produced in the privacy of one’s home. And unlike with CSAM, the person who chooses to create/consume such substances may do so with some modicum of agency, something that does not exist with regard to children who are exploited and abused in audio-visual materials, items that are effectually unconstrained by the same aspects which make controlling drugs much more feasible.

Tl;dr

Mere possession of CSAM is rightfully and justifiably prohibited, whereas mere possession of hard drugs has more room to argue.

2 Likes
7

I’ve read your point carefully but I’m not aware of what loophole you might be referring to but I do agree with this:

However, I disagree that just because it’s harder to stop producers/distributors of this type of material that we should incarcerate the people who are addicted to it instead (especially for 1 - 5 years as you said earlier).

Without typing in “What drugs can you grow at home” into google for obvious reasons x) (I only hear about people growing weed lol) I still believe its very similar, except unlike drugs which is only addictive once you’ve physically taken it, addiction to this material has a natural “allure?” to it which only requires one to be born with the sexual orientation of being attracted to under 18s to be more at risk to becoming addicted to it.

1 Like
8

As much as I hate CSAM, I think the punishments in the U.S. are insane. You can go to prison up to 10 years for possession of CSAM, and 5-25 years for distribution (unless you plead down, which many people do). If you molest kids, you get much less time than that. That is insane and I think it should be the opposite. I will say that one thing the nanny states of Canada or the U.K. got right was the punishments for CSAM. They seem to make more sense than those for the U.S.

5 Likes
9

Well the UK considers lines on a piece of paper a form of CSAM, so don’t give them too much credit. The low sentences might be reserved for…not actual CSAM

3 Likes
10

Yeah they didn’t get that right (banning drawings), but at least you don’t spend 10 years in prison unless you fucked up big time.

3 Likes
11

Do you know what the maximum sentences are there for just possession? Curious what the cutoff is.

1 Like
12

Here is a table with punishments for the U.K.
https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/possession-of-indecent-photograph-of-child/

1 Like
13

I hope you dont mind. But I need to set the record straight about the justice system in europe. FIRST OF ALL. People on this forum NEED to understand how sentencing works in europe. 1) the mandatory 1 year sentence DOES NOT MEAN they have to do a minimum of 1 year in prison. In Europe, prison sentences can be, and are extremely often suspended. This basically means they are placed on probation (with massive fines and sometimes w/ requirement to attend therapy of some kind) as a condition of remaining free. If they seriously violate their probation, like say… commit another crime like say… assault, they can be easily recalled to prison. Why is it like this? Well because prisons have a criminalgenic element to them, and prisons are very expensive. Over use of prisons do not benefit public safety over a policy of limited prison use and emphasizing alternative.

The 1 year mandatory minimum of probation in my view is not such a big deal when we are talking about addicts. Even before the enactment of the mandatory min, Courts easily can sentence addicts (and did) to multiple years of probation with a suspended jail term of multiple years. Plenty of time to force them to be rehabilitated. The problem with the mandatory min is how it implicates people like teen sexting each other. And it’s effect it has on good faith reporters of illegal images (that the article the op linked).

Judging by the low re offending statistics in the UK and German and comparing them to the US (They are both low), I can say that US style sentencing scheme is unessesery and wasteful. You don’t need very harsh sentencing to deter or rehabilitate. I despise CSAM and I wish for these images to be eliminated, people who get off on this stuff, as well as distributors do anger me. But at the same time, the evidence strongly points to the potential of rehabilitation, and the wastefulness of excessive sentencing schemes.

Sentences should only be as long as nessesery, and a bit of off topic, I think the sentencing for a lot of crimes in the US and in south east asia are insane. Trafficking small amounts of drugs can get you probation with multiple year suspended sentence in europe which in my view is deserved, but in some asian countries, its fucking death penalty! Insanity is not a strong enough word to describe this. Drug traffickers do seriously anger me, but again, that does not mean we need crazy sentences. Death penalty and life without parole shouldn’t be a thing. And sentences need not be excessive.

Ok, but back on topic, if you have questions about appropriate sentencing, scotland did an in depth investigation. The article is about sentencing in scotland. as well as ways to improve the theme. For example, offenders very much involved in the community, such as posting supporting comments to other offenders should be judged more harshly than one who does not interact with these horror-forums.

There were many other things they discussed, but some things of note is that the scottish sentencing council found that 1) long sentences are not a good general deterrent. 2) recidivism is low already (current sentencing in uk and australia btw which are not harsh at all).

I’m pretty happy with sentencing for csam possession in europe and see no desire for a US model. On the other end, I also have not found much support decriminalization in the same way drugs are in portugal. Even the closest country to a decrim-but-illegal-model is still a criminal offense. I’m talking about Taiwan has very large fines for possession and court ordered therapy. Sure, you won’t go to prison over it, but they have ways around it to make sure you are reformed and pay up for the harm caused and it’s still criminalized there. CSAM possession is never a victimless one, afterall.

You can read more here https://www.scottishsentencingcouncil.org.uk/media/2250/indecent-images-of-children-literature-review.pdf

2 Likes
14
  1. the mandatory 1 year sentence DOES NOT MEAN they have to do a minimum of 1 year in prison. In Europe, prison sentences can be, and are extremely often suspended

At least in Germany a Prision Sentence of 1 year or higher means the stuff actually has to go to court and the person judged. Yes, in some cases, if the judge can and does find specific reasons to do so, the Prison sentence can be made into a “Bewährung”. This essentially means that the person can live outside Prison but there are some special requirements, like needing to have paid work, visiting the nearest police department on a regular basis, and often even the requirement to wear tracking equipment. Better than being in Prision? sure but not a free either. Additionally, 1 year imprisonment is the exact point at which this no longer is the default. In other words, the judge has to specifically say why this should happen. It does not happen on its own. There needs to be special reasons beyond good conduct and first offence.

Furthermore this 1 year happens for everyone sentence for possession. A recent challenge to this law in Front of the German supreme court because a mother used a photo her daughter made to warn other parents that children on the internet are NOT safe. So, we are not talking “addicts” or similar but first-time offenders with good conduct and arguably lowered standard of offense.

2 Likes
15

Well yes, being given a suspended sentence is hardly free. There are a number of requirements. I’m aware of that. But people on this forum read this and came away with the idea that it’s what is often called an immediate custodial sentence. (for those in the uk). I just wanted to set the record straight about what’s really going on before critiquing it. Maybe it’s not a huge detail for some, but I still view the distinction as major.

"A recent challenge to this law in Front of the German supreme court because a mother used a photo her daughter made to warn other parents that children on the internet are NOT safe."

Yeah that is the problem with the current mandatory mins, how do you account for cases like this?

2 Likes
16

But people on this forum read this and came away with the idea that it’s what is often called an immediate custodial sentence. (for those in the uk).

No UK Legal expert here but according to multiple translaters for cases witn a punishment of 1 year custodial sentence is the default. Again the point is if the minium punishment is 1 year you have to provide good reasons why the year should NOT be prision. The replacement sentence only is the default for cases with punishment <1 year.

There are rare cases outside the norm where a sentence to up to 2 years but more then 1 year can be met with this replacement. But it is not the default there needs to be additional reasons. For cases with less then 1 year the default is the replacement e.G. The state atterny would have to argue why you should get to prision and not be met with what you are talking about. But with a sentence of 1 year and up you have to argue to get this replacement the default is prision.

Yeah that is the problem with the current mandatory mins, how do you account for cases like this?

There already was something for such cases prior to the sentencing requirement changes in there. There was already a solution proposed for this when the change was introduced. A lesser case with lower sentencing.

The thing is in German law. When a crime has a minimum Punishment of 1-year a lot changes.

  1. the case can no longer be closed by the state attorney for lack of evidence, low public interest or low standard of crime
  2. The state attorney and the defends can no longer reach a deal to get the suspect charged without public court session
  3. For any Court session it is required to be public
  4. The standard becomes prison not “Bewährung” which is the other way around below 1 Year of crime

That was known before the law changes passed. It was already noted that this will create problems, including unfair sentencing for lower offenders. The politicians ignored it they did not include a lower variation that gave all these options back to the judge.

2 Likes
17

I still say that 1-5 year prison sentences for CSAM possession is very much reasonable, factoring in, of course, all of the other standards employed for factoring in probation, supervision, post-release treatment, etc. to help monitor and control the risk of recidivism.
That being said, I’m not against longer sentences employed for determined recidivists (10 year sentences).

CSAM possession offenders tend to exhibit low recidivism rates, as do contact offenders.

But I think the whole “lock 'em up and throw away the key” to accommodate public moral outcry is a very much undisciplined and shotty way of dealing with things since it’s primarily an emotional response to a crime, rather than a reasoned one.

But don’t let this detract from the fact that CSAM possession is not like mere possession of drugs. The end-goal of a CSAM distributor/producer is to turn child sex abuse into a commodity, and ultimately that end-result is possession for those who are interested. It’s part of why Russian CSAM sites are making a huge comeback, because their legal system does not criminalize mere possession (and also because they’re a rogue state with less incentive to work with international authorities).

I think @elliot is right in not lending countries like Canada and the UK too much credit with regard to how they treat it. I think Canada and the UK would do very well to legalize drawings, stories, non-realistic CGI (i.e. distinguishable and provably distinct from reality) images, etc. from their definition.
The US has obscenity laws, but that in itself is a barrier that must be crossed on a state-by-state basis with lots of vagueness.

It’s not unreasonable to assume that the obscenity doctrine itself will be dispensed with in the coming years, and no distinction between obscenity and indecent materials will exist, at least with respect to distribution and possession by adults.

2 Likes
18

I have to say that I disagree with this approach for several reasons. You said this is a system which rejects locking people up and throwing away the key for the sake of public approval, however this still very much seems like an emotional response rather than a reasoned one to me. Like why do they need to be in prison for 1 - 10 years? Is it how long you think rehabilitation will take? What is the purpose of this other than punishment to satisfy public moral outcry?

These are just my initial thoughts to reading this but if there is actually a reason other than deterrence I’d be very interested in hearing it.

You never explained why you think this. They seem quite similar on paper:

  1. Both have many users who are wishing to quit but struggle to do so on their own.

  2. People who are currently trying to quit still have the possibility of failing to do so and if they do there should be support, not punishment.

  3. Meeting with others in the same boat who are also going through the recovery process seem to be a very good way in staying off the stuff

  4. Both require someone to produce & distribute to others. There’s no reason we can’t focus our resources on them to stop the supply in the first place.

  5. All of the evidence points towards rehabilitation not criminalization because for the user it is a health issue NOT a criminal justice issue.

One of the only differences I see is that unlike drugs which needs to be taken physically before one can become an addict, this type of material is naturally attractive to MAP’s and is generally almost exclusively addictive to MAP’s from birth. Treating the mere possession of this material vastly different from how one would treat the mere possession of drugs (which affects non-MAP’s as well) to me seems more like an attempt to punish MAP’s and ruin their lives rather than trying to help them and aiming for the best result for everybody involved.

1 Like
19

A big part of the penal system is isolating repeat offenders from the general population so that crimes can no longer occur. I think scientific evidence more than justifies lessening the penalties on first-time offenders, noting the low recidivism rates and weak, non-causal links between CSAM consumption and contact offending.

But we have to acknowledge that long-term consequences will be necessary to deal with individuals who are determined to reoffend, however small of a minority they may be. I’m not opposed to supervised release for these individuals, but the law exists for a reason. This isn’t an irrational response, like putting someone away for 40 years despite not having done any harm to someone or trafficking in materials not shown to promote any actual harm.

I have, though. Just because it’s not a long-winded, multi-paged explanation doesn’t make it any less necessary.

Moreover, nothing in my position indicates that deviating from a crime-and-punishment approach to a rehabilitation and recovery approach is out of the question. Courts have ample authority to sentence offenders to in-patient rehabilitation programs, as well as other methods by which those who feel compelled to consume CSAM over non-exploitative outlets cannot.

1 Like
20

Man, this turned into a debate! I guess I’ll throw the wiki page out there just to see what people think:

While laws criminalizing child sexual abuse now exist in all countries of the world,[7][8] more diversity in law exists on issues such as the exact minimum age of those depicted in pornography, whether the mere possession of child pornography should be a crime, or whether sentences for such possession should be modified. Convictions for possessing child pornography also usually include prison sentences, but those sentences are often converted to probation for first-time offenders.[4]

In 1999, in the case of R. v. Sharpe, British Columbia’s highest court struck down a law against possessing child pornography as unconstitutional.[9] That opinion, written by Justice Duncan Shaw, held, “There is no evidence that demonstrates a significant increase in the danger to children caused by pornography”, and “A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography.”[10] The Opposition in the Canadian Parliament considered invoking the notwithstanding clause to override the court’s ruling.[11] However, it was not necessary because the Canadian Supreme Court overturned the decision with several findings including that viewing such material makes it more likely that the viewer will abuse, that the existence of such materials further hurts the victims as they know of its existence, and that the demand for such images encourages the abuse.[12]

In the United States, some federal judges have argued that the U.S. Sentencing Guidelines’ recommended penalties for possessors of child pornography are too harsh.[13] Judge Jack B. Weinstein of New York criticizes the mandatory sentence for possession of child pornography as often higher than the penalty for actually committing the act of child abuse it depicts. Furthermore, child pornography prosecutions have led to dozens of suicides, some of them among the innocently accused.[14] The requirement that people convicted of possessing child pornography pay restitution has been criticized by some judges and law professors. This has been particularly controversial in cases involving millions of dollars of restitution, as in those pertaining to the Misty Series.[15] But in 2010, the US Ninth Circuit Court of Appeals ruled that restitution directly to depicted minors was an appropriate penalty for possession of child pornography.[16]

During the nomination process at the 2008 Libertarian National Convention, anarcho-capitalist and U.S. presidential candidate Mary Ruwart came under fire for her comment in her 1998 book, Short answers to the tough questions, in which she stated her opposition not only to laws against possession of child pornography but even against its production, based on her belief that such laws actually encourage such behavior by increasing prices.[17] Shane Cory, on behalf of the minarchist United States Libertarian Party in his role as executive director, issued a response saying, “We have an obligation to protect children from sexual exploitation and abuse, and we can do this by increasing communication between state and federal agencies to help combat this repulsive industry. While privacy rights should always be respected in the pursuit of child pornographers, more needs to be done to track down and prosecute the twisted individuals who exploit innocent children.” Cory resigned after the party refused to vote on a resolution asking states to strongly enforce existing child porn laws.[18]

2 Likes