European Union Sex Offence Legislation between Protection and Paternalism Conference Sexual Citizenship and Human Rights: What Can the US Learn from the EU and European Law? Austin, November 22, 2013 Helmut Graupner

I. Sexuelle Ausrichtung als MenschenrechtI. Sexuelle Ausrichtung als MenschenrechtI. Sexuelle Ausrichtung als MenschenrechtI. Sexuelle Ausrichtung als Menschenrecht The Enlightenment 1789French Revolution For the first time in history decriminalization of all consensual sexual acts (vaginal intercourse between the unmarried & between christians and unbelievers, oral and anal sex, homosexuality, masturbation, prostitution etc. ) „Human Beings are born free and equal in rights and they do stay so“ „Freedom consists in the right to do all what does not cause damage to another“ (Declaration of Human and Civil Rights 1789, Art. 1 & 4)

Human Rights → central idea: human dignity → human dignity = uniqueness and autonomy of the individual → German Constitutional Court: human being must never be a means to an end, but always the end in itself (Kant) → Jewish saying: if you are destroying a single person you are destroying a whole world, if you are saving a single person you are saving a whole world → exactly what human rights are about: uniqueness, autonomy & self-determination of the individual Sexuality - A Human Right

Human Sexual Rights → fundamental rights in the area of sexuality → should protect human dignity → manifestation of a basic principle of sexual autonomy and sexual self-determination → Correctly understood: two sides → right to wanted sexuality → right to be free and protected from unwanted sexuality (sexual abuse, sexual violence) → both sides of the coin must be given due weight, neither neglected → only then: human sexual dignity fully respected → overemphasis of one side to the detriment of the other: violation of human rights

Task of Lawmakers → find a reasonable balance → between both sides of the coin „sexual autonomy“ → noble task & overhelmingly important → i.e. in respect of young people → to whom we should pass on our ideals & values → respect for dignity & individual autonomy

Very essence of the convention is respect for human dignity and freedom Notion of personal autonomy is an important principle underlying the interpretation of the right to respect for private life Sexuality and sexual life are at the core of the fundamental right to protection of private life. State intervention interferes with this right; and such interferences are justified only if demonstrably necessary to avert damage from others (pressing social need, proportionality) European Court of Human Rights:

Attitudes and moral convictions of a majority cannot justify interferences into the right to private life (or into other human rights) Incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority (Dudgeon vs. UK 1981, Norris vs. Ireland 1988, Modinos vs. Cyprus 1993, Laskey, Brown & Jaggard vs. UK 1997, Lustig-Prean & Beckett vs. UK 1999; Smith & Grady vs. UK 1999; A.D.T. vs. UK 2000, Christine Goodwin vs. UK 2002, I. vs. UK 2002, Fretté vs. France 2002, L. & V. v. Austria 2003, S.L. v. Austria 2003, Alekseyev vs. RUS 2010)

Member States obligated →to effective protection against sexual violence and abuse →to employ the criminal law (strongest weapon of the state), if necessary for effective deterrence → to guarantee that state agencies intervene whenever necessary for the protection of vulnerable persons (Söderman v S [GC] 2013; Z. & Others vs. UK 2001, E. & Others vs. UK 2002, M.G. vs. UK 2002; X. & Y. vs. NL 1985) as well as →to effectively secure the freedom to wanted sexuality (L. & V. vs. Austria 2003, S.L. vs. Austria 2003; A.D.T. vs. UK 2000) → not restricted to adults S. L. vs. A: EUR 5.000,-- compensation (plus costs and expenses) to an adolescent, who (between 14 and 18) was barred from entering into self-determined sexual relations with adult men (par. 49, 52)

German Constitutional Court →A minor with increasing age is protectected by the right free development of personality in connection with the right to respect for human dignity, and this protection intensifies with increasing age (BVerfGE 47, 46 (74) = NJW 1978, 807) →The right to self-determination of a minor increases mirroring his/her ability to self-determination gradually superseding his/her need to be educated (same decision) →A discerning minor should be able to decide autonomously especially on those rights which are highly personal (central to personality) (BVerfGE in NJW 1982, 1375 [1378])

Sexual Consent in Europe → Striving for the best balance → European states: → minimum age limit („age of consent“) for sexual relations → between 12 and 16 years (only exception: Northern Ireland; MBA critique) → most jurisdictions: 14 or 15

Consensual Sexual Contact (out of a relationship of authority, out of prostitution and pornography) legal at the age of 14: 48% (28 out of 59) 15:70% (41 out of 59) 16:98% (58 out of 59) Europe

→States with 16: more flexible system with ample opportunities for screening out (love relationships & other non-harmful consensual contacts) →States with 12-14: more stringent law enforcement policy (limited powers of discretion for law enforcement agencies, little attention to the will of the victim)

Sexual Consent & Criminal Liability → essential requirement of justice: sound and consistent laws (ECtHR: X. & Y. vs. NL 1985; B. & L. vs. UK 2005; X. et. al. v A [GC] 2013) → applied to minimum age for sex → should be the same as the age of criminal responsibility

→ if you punish an adolescent boy for raping a woman, you cannot on the other hand claim that he is too immature to consent to wanted sex with the same woman → if you consider an adolescent boy incapable of making mature and informed sexual decisions, and you consider a woman to abuse him if she engages in consensual sex with him, you cannot reasonably hold that same adolescent boy liable for raping the woman if she does not consent to sex with him

→ age for criminal responsibility 14 & minimum age limit for sexual contacts (“age of consent”) 15 (or even higher): consensual sex between two 14-year-olds -> both sex offenders, both victims both perpetrators & victims vis a vis each other (!) at the same time. → no fair balance (unreasonable, absurd, and unjust) serious violation of human rights a rejection of the principles of individual autonomy and self-determination

→vast majority of European jurisdictions: age of consent for sexual relations no higher than the age of criminal responsibility, and most set the same age for both → Child Pornography: same age limit (reflects general notion of the term „child“, depiction of a crime) → until the beginning of the 21st century

EU-Child Pornography Framework Decision EU-Child Pornography Framework Decision (FD 2004/68/JHA on combatting sexual exploitation of children and child pornography) European Commission porposal (2001) „Child“: any person up to 18 years →No differences between certain age groups →17 ½ year old young man: treated the same as a 5 year old child „Child Pornography“: →All kinds of visual depictions →sexual acts →involving persons under 18 →includes: „laszivious exposure of the genitals or the pubic area“ Definition of „Child Pornography“ literally taken over from § 2256 U.S.-Federal Criminal Code: US-Congress (1994): →not restricted to depictions of nude persons →neither to depictions where the genitals can be discerned under the clothing →Videos: genitals and the pubic area need not be part of the depiction; laszivious acts or exposure not required

Also covered: →virtual (not real) depictions →adults looking like under 18 →good deal of regular standard pornography put under suspicion of criminality Defnition taken over from US-legislation covers potentially thus covers all imaginable kinds of erotic depictions displaying persons under 18 (even if fully clothed) „Sexual Exploitation“ →Contacts against money or other things of economic value or „other“ (non- economic) →Contacts under „inducement“ of the person under 18 Juvenile Perpetrators: →No exceptions →Same sanctions (minimum maximum penalties) →As victims treated as children, as perpetrators treated as adults

Obligation to criminalise →15 year old who takes a picture of the girl-friend of same age in a tight bikini which lets be seen the „pubic area“ (while not the genitals) and in a „laszivious“ position →14 year old who, in his privacy, draws a nude 17 year old beauty in a „laszivious“ position →17 year olds who exchange intimate pictures of themselves or watch each other over a web-cam and thereby are epxposing their „pubic area“ (or even their genitals) in a „laszivious“ manner („Webcam-Sex“) →Adolescents who take the initiative to sex with other adolescents („induce“ them) or grant them (non-economic) remuneration (love afffection?) for intimate contacts

The Critique Sharp criticism: -> World Association for Sexual Health (WAS) -> Austrian Society for Sex Research (ÖGS) -> German Society for Socio-Scientific Sex Research (DGSS) -> German Society for Sex Research (DGfS) („moral coloniasm“) („moral coloniasm“) -> German Society for Sexology (GSW) -> European Region of the International Lesbian and Gay Association (ILGA) -> Lesbian and Gay Association of Germany (LSVD) Expert-Hearings in the Austrian (2003) and German Federal Parliaments (2008): unanimous rejection by the experts heard (law, child- & youth-psychatry, psychotherapy, child-protection)

Points of Criticism:Points of Criticism: →„inducement“, „non-economic“ remuneration →economic „remuneration“ covers not just prostitution but also an invitation to the cinema or to a dinner →Criminal investigations (causality of an advantage?) do more damage to juveniles than good, puts adolescent sexuality under a suspicion of criminality →Criminalization of adolescent prostitution: obstructs low-treshold outreach social work with young sex workers →„youth-pornography (as opposed to „child-pornography“): depicts not a sex crime but legal contacts (even protected by fundamental rights) -> criminalization beyond commercial pornography even within private consensual relationships -> unproportionate interference with sexual autonomy (self-determination) →Marriage age 16 (Germany, Austria): even possession of a „lascivious“ (pornographic) picture of one´s own spouse is a sex-offence →Criminalization of possession of „lascivious“ („pornographic“) pictures of a fully developed 17year-old woman or a fully developed 17year-old young man (in A and parts of Germany entitled to vote; in A military- aged) not understandable →No language in the world ever has used the term „child“ for persons beyond their early teens →Compromise of an effective combat of sexual exploitation; waste of valuable resources needed for combatting real child-pornography

Council of Ministers:Council of Ministers: →„inducement“ deleted →„non-economic“ remunerations deleted →„remuneration“: must be offered for the willingness of an adolescent to be ready to sexual contact (element of seduction)

Pornography: age limit of 18 and coverage of private relationships retained, but three non-obligatory exceptions created: Adults: member-states may exclude adults who look like under 18 from the scope of the offence (Art. 3 Abs. 2 lit. a)Adults: member-states may exclude adults who look like under 18 from the scope of the offence (Art. 3 Abs. 2 lit. a) Sexual Consent: member-states may exclude:Sexual Consent: member-states may exclude: → production & posession → depictions of person above the age of sexual consent (D & A: 14 years) (D & A: 14 years) → with their consent and solely for their personal use (?) → not covered: showing of pictures to others → for instance not covered: adolescents who show „laszivious“ („pornographic“) pictures of themselves (alone or with their partners) to others Exceptions

Virtual images: Council of Ministers reduced to „realistic“ (virtual) images In addition member-states may exclude from the scope of the offence: → production and possession → exclusively for the personal use of the producer → if no depiction of a real (even adult) person is used in the production → and if there is no danger of distribution → 14year-old may (if his/her member-state makes use of such an exception) draw a 17year-old beauty in a „laszivious“ („pornographic“) position, but may not show his drawing to anyone →17year-old may (if his/her member-state makes use of such an exception) generate and store on his/her computer a virtual „laszivious“ („pornographic“) animation of an adolescent but maynot use for that a depiction of her/his 16-year-old boy-friend and must secure the file effectively with a password (otherwise he/she commits a crimnal offence)

Proposal for a new EU-Directive on combatting sexual exploitation of children and child-pornography (KOM (2010)94) Member-states must criminalize: Erotic material with adult performers who (in the eye of the court) look like under 18 Production and posession of virtual images in one´s privacy (14year-old draws a „realistic“ image of 17year-old nude beauty) Consensual Webcamsex or production of pictures of a 19year-old with his 17year-old girl-friend, if the court does not recognize a „similar mental and physical development“ or (nevertheless) sees „implicit abuse“

Offences not restricted to pornography and no exceptions for arts, science etc.: -> also movies covered (like coming-of-age films) or documentaries and sex-education material including simulated sex acts under 18, if the actors are under 18 (unclear if also adult actors are covered) Mere private posession for own personal use: minimum maximum sanction of 2 years Mandatory reporting for anyone (!) if „reasonable suspicion“ (including lawyers, therapists etc. vs their clients) Prohibiton of any frequent contacts with persons under 18 (custody, profession, private life, trains/bus/trams?) Protection from child(!)pornography? : 27 member-states agreed (in the Council), new offences to be adopted within 2 years

-> Joint declaration of the German speaking sexological societies (DGfS, DGG, GSW, DGSMT, ÖGS, DGSS) „Adolescents and Young Adults are no Children“ ( ) (sent to all members of the European Parliament -> Declarations of the World Association for Sexual Health (WAS) & the European Federation of Sexology (EFS) -> Discussion of the Commission´s proposal (adopted by the Council) in the European Parliament -> Directive 2011/93/EU ( ): all of the absurdities proposed by the Commission (and consented in the Council) -> deleted

Absurdities prevented, but the problematic areas of the old frame-work decision keep on -> EU-Arrest-Warrant: does not require double criminality. Arrest and transfer must take place also when the asked member-state made use of one of the possible exceptions (for instance webcamsex between 17year-olds). -> 7 months imprisonment (without probation) for possession of 5 nude pictures (no sexual acts) of „might be under 18year-old“ young men (OGH , 14 Os 73/09), -> expert opinion: one in ten 18year-olds look like these 5 men -> evidence proofing the (adult) age not admitted

Conviction as a sex-offender increasingly means: -> no pardon -> longer probation time -> longer time for extinction from criminal record -> automatic loss of job for public sector employees -> prohibitions of certain professions & activities -> no electronically supervised house-arrest -> sex-offender registry Acquitted: -> practically no refund of defense-costs

Shift of burden of proof to the defendant: -> for adult age of persons depicted Criminal prosecutions of 16year-olds for distributing nude pictures of their own Attempts to criminalize the defense -> for printing out front page of legal website with disclaimer as to the age of the performers to prove their adult age

Very problematic developments -> in especially as they compromise the important effective combat of real child-pornography