Sexting, revenge porn and transfer of child pornography material.
When the crime is set up.
If establishing the underlying causes of juvenile delinquency appears extremely difficult, greater perplexities derive from the attempt to trace the criminal matrix in the so-called. behaviors usually implemented by adolescents.
Studies link the tendency to commit crimes of subjects in the developmental age to the socio-economic conditions in which they find themselves, together with the affective relationship with those who exercise parental responsibility.
Others, minority doctrine, to the personal tendency of the subject.
Often the commission of the crimes derives only from the scarce awareness of the social disvalue underlying the completion of certain actions.
This last statement would seem to justify and act as a gloss to the various theories.
So the child grown up in poorly stimulating environments, inherent in deep economic problems or from emotional deprivation, will in fact experience in a different way the negative value of the action / crime syllogism compared to the minor saturated with attention (affective and economic)?
If this could be shared by the alveolo of crimes against property sanctioned by the legislator, different problems offer the so-called. crimes against the person.
Scientific and technological progress, in modern societies, have developed increasingly rapid communication tools, favoring on the one hand the rapidity of communications, but producing, as a consequence, a process of depersonalization of the subject.
As a bearer of rights and duties, we come to become "goods", undermining the idea that everything related to our person is possible for commercial actions.
Suffice it to say that if before the vast majority of pornographic and child pornographic material present in the ether were of illicit origin, now most of it comes from sharing them by the same subjects depicted in the images (Selfie, amateur videos)
Exchanges considered personal by subjects who are unlikely to be fully aware of the risks hidden behind such representations.
This trend of commodification therefore they end up embracing every aspect of the human being, even the tendentially intimate and private ones such as the sex.
Think of the various problems inherent in the hypothesis of buying and selling body parts, reproductive technologies (homologous and heterologous), prostitution, to reach pornography or child pornography.
These instruments tend to embrace the most varied age groups, finding fertile and uncontaminated fields in those that are weaker or vulnerable like children.
The various categories of the phenomena falling within the online pedophilia refer to two main strands, the one related to the contents of the images and the one concerning the contacts between victim and abuser.
New virtual locations currently host high-level criminal profiles, such as in particular the increasingly frequent and widespread use of anonymity and cryptography services, especially through Darknet networks (In Italian dark net or a private network), which impose new difficulties in the investigation for the identification and prosecution of those responsible.
On the basis of this, the current division of the subject, shared internationally, is based on the following scheme:
The protection of these individuals, vulnerable as they are being trained and developed, can only pass through the control and codification of the network.
This awareness led in the 1988 to the regulation of certain types of crimes.
Recalling the Convention on the Rights of the Child, signed in New York the 20 November 1989 and ratified by the internal regulation with law n.276 / 1991, the Italian Legislative Decree introduced the articles 600 ter and 600 quarter
The society changes, the users of the network change, the subjects affected by the phenomenon change, so the interventions of the legislator multiply.
First and foremost, the one implemented with the 38 / 2006 law with a view to adapting the internal regulations to the 2004 / 68 / GAI framework decision adopted by the 22 December 2003 European Council.
It is worth mentioning here that the reform law modified the objective element of the case of production of pornographic material, replacing the controversial verb "exploit" the term "use"And eliminating the specific intent of the crime
"Who makes pornographic performances or produces pornographic material, using minors of the eighteen [...]"
In order to make the protection offered to the psychophysical development of minors as cohesive and meaningful as possible, the criminal offense was therefore extended to the spread as well as to the simple "offer" of child pornography.
With the drafting of the art. 600 quarter, tending to punish production, putting into circulation in various capacities and the possession of virtual pornographic material (representation therefore of real behaviors through graphic techniques of virtual reality), there is a further extension of the criminally punishable facts.
An expansion process that does not tend to stop then.
The further reform of the discipline of child pornography is in fact the 2012.
In fact, in this case the Lanzarote Convention of 25 October 2007, taken by the Council of Europe for the protection of children against sexual exploitation and sexual abuse, sanctions new forms of crime, including for example: soliciting of minors (also through the internet), instigation and apology of pedophilia and child pornography practices.
Although the matter continues to grow, in an osmotic process between the internal order and the needs of European integration, the underlying objective remains to punish all the phases of the child pornography market.
Before these last interventions, the whole doctrine had complained about the lack of an express definition of child pornography.
Part of the latter had come to consider (taking into account the semantic and systematic nature) the realization of a sexual act by the minor or on the same is necessary, believing that only in such cases his sexuality comes into play in such a way as to cause an actual danger for the development of his personality.
Certainly a restrictive view of the story being necessary for his to manifest a realistic and full physical contact between the subjects.
The majority doctrine and later also the jurisprudence intervened, always with a guaranteed perspective, accepting a decidedly broader notion, considering included every object or show essentially consisting of: manifestations or solicitations of the sexual instinct of producers or users.
Il sexting (sex (sex) and texting (publish text), consiste in sending and / or receiving and / or sharing messages with sexually suggestive videos or images through the internet or even faster smartphone.
– sexting primary, when the protagonist of the image spreads the photo to third parties;
– sexting secondary, when the diffusion to third parties takes place by a person other than the one shown in the image (who then sent the photo the first time).
Of course, if the parties involved are of age and consenting, the sexting It is legal.
The sending of such materials to non-consenting parties may have the details of the crime of harassment o stalking.
The Court of Cassation (section VI, sent. N. 32404 / 2010) has indeed maintained that it integrates the crime persecution (stalking) the repeated sending to the victim of SMS or e-mail messages or posted on the CDs. social networks, as well as the dissemination on the latter, of films depicting sexual relations entertained by the offender with the same victim. Not to mention, of course, theunlawful processing of personal data others.
A completely different discourse deserves the analysis of the case in which minor portraits are taken: sending photos to third parties can configure the crime of distribution of child pornography material.
Even just keeping such photos in your device can configure the crime of possession of child pornography.
The lack of awareness about the material exchanged, the trust poured into the person receiving the aforementioned, unleash innumerable consequences, sometimes completely unexpected.
According to research by Skuola.net for the State police the 15% of boys, of school age, have reported having suffered the sharing (without any consent) with third parties of pornographic or sexually explicit material; in 49% cases the reason given was the joke.
Needless to say, no legislator would have had the audacity to imagine such a social evolution, and in fact art. 600 ter in its initial formulation, it was not ready to deal with this type of conduct.
Therefore the spread of the narcissistic tendency to withdraw in first person in video or auto shots is then undeniable and then spread on the net.
In this regard, with the 11675 ruling n.2016, the third penal section of the Court of Cassation confirmed that the current legislation on child pornography is not adequate to meet the emerging needs.
In this case the case concerned some photographs (pornographic) taken independently by a minor and sent by her to some friends (in turn minors), to then be shared again with third parties.
For all, the charge was made of the transfer of pedo-pornographic material pursuant to art. 600 ter comma4 cp
However, the judges of the merits found that the offense referred to in the art. 600-ter paragraph 4 was not configurable in the case in question, as to be sanctioned was the transfer of child pornographic material on condition that it had been carried out by a different subject from the minor depicted, while i Selfie incriminating had been taken and sent to the defendants by the minor,
therefore the recurrence of the crime pursuant to art. 600 ter paragraph 4 cp not considering the “used” minor
Upon appeal lodged by the PM the Supreme Court also aligned itself with this interpretation.
In fact, the Ermellines claimed that the crime in question sanctioned the transfer of child pornographic material, but on the condition that it had been carried out by a subject different from the one depicted, clearly distinguishing the user subject from the minor used.
In the case under examination, the images had been self-shot directly by the victim, without any coercion and voluntarily surrendered by them to others, so that it could not be considered "commodified".
The Court of Appeal of Milan (sentence of 12 March 2014), in excluding the existence of the crime of possession of child pornography in relation to a person who had received and preserved photos depicting a minor, considered that to establish whether there is use of the minor it is necessary to evaluate their consent, in the light of the concrete elements of the case.
The age of the child must therefore be taken into account, as well as the request for consent, the involvement of third parties, the subsequent destination of the self-produced images, and so on.
De quo, a necessary prerequisite for the configurability of the offense set forth in the second and following paragraphs of Article 600 ter consists of the alterity and diversity between the child represented in the pornographic material and the subject who produces the material itself.
This interpretation, although clear and respectful of the normative data, appears nevertheless incomplete.
With regard to civil liability (on whom the burden of compensating the damage falls), one recent sentence of the court of Sulmona has established that it is the parents of minors who must respond to them.
In the specific case an 14enne girl denounced the publication on Facebook of photos in which she was portrayed naked, photos that were stored on mobile phones of friends and acquaintances.
It must be said that in the criminal proceedings the suspects were acquitted, but in civil proceedings the claims for damages by the parents of 14enne, were partially accepted, with a sentenced to payment of over 100 thousand euros, borne by the parents of the minors who have spread the photos without consent.
According to the Judge "it is the responsibility of the parent to prove and to demonstrate the correct fulfillment of their educational and control obligations on the child, only in this way being able to exempt from the compensation sentence". According to the sentence "the facts express, in themselves, an educational lack of the minors, who have thus shown themselves deprived of the necessary critical sense of a conspiracy, capacity for discernment and conscious orientation of their choices in respect and protection of others. Ability that instead they should have already enjoyed in relation to the age possessed. So much so that some peers received the photo did not disclose it"
The judge ruled that the compensation will go only to 14enne, not even sparing his parents who "they would not have supervised the imprudent conduct of their daughter, from which the daring photos would have left ".
However, another question should be asked: Does the person who voluntarily sells pornographic images have no protection in the event that the subject discloses them to third parties?
Think for example of the revenge porn (We imagine a boyfriend who, when relationships deteriorate, still has the photos in his possession, and which could spread them for "revenge").
Revenge porn is pornography for revenge: publish on the social network personal photos of the ex-partner to take revenge.
If it is true that the second paragraph of the 600 ter punishes those who market child pornographic material, the third who distributes, divulges, disseminates or advertises and the fourth who offers it or sells it to others, it is still true that these behaviors inevitably presuppose, inevitably , that promoter is a person who has produced the material using minor subjects.
The United Sections with sentence X. 13 of the 2000, by providing a precise reading key of the normative data, had already tried to clarify what is meant by "exploitation", which use of the minor for any purpose, therefore also without profit: it means in short, offending the gold personality, in such an intimate and delicate aspect as the sexual one, so much more fragile and in need of protection.
This minor / middle binomial leads to a hermeneutical operation aimed at excluding from those that are criminally relevant and therefore punishable by the State, conducted not involving such instrumentalization / subjection of the child.
To come to our aid is the bill definitively approved the 17 July 2019, which introduces two different types of crime:
la dissemination of images or videos with sexually explicit content, destined to remain private, without the consent of the persons represented by those who made these images e by those who receive them and contributes to their further dissemination in order to create harm to the people represented.
The insertion of the art. 612 ter cp indexed "Illicit distribution of sexually explicit images or videos" initially it was not foreseen in the initial articulation but it was inserted during the discussion in the Assembly of the 2 April 2019, although it had already been presented similar and more organic bill in the Senate.
<<Unless the fact constitutes a more serious offense, anyone, after having made or stolen them, sends, delivers, assigns, publishes or disseminates images or videos with sexually explicit content, destined to remain private, without the consent of the persons represented, is punished with the imprisonment from one to six years and the fine from euro 5.000 to euro 15.000
The same penalty applies to those who, having received or in any case acquired the images or videos referred to in the first paragraph, send, deliver, sell, publish or disseminate without the consent of the persons represented in order to bring them harm.
The penalty is increased if the facts are committed by the spouse, even separated or divorced, or by a person who is or has been linked by an affective relationship to the injured party or if the facts are committed through computer or electronic means (revenge porn).
The penalty is increased from one third to half if the facts are committed in damage to a person in a condition of physical or mental inferiority or to the detriment of a pregnant woman.
The crime is punished to the complaint of the injured person. The deadline for filing the lawsuit is six months. The remission of the lawsuit can only be procedural. However, it proceeds automatically in the cases referred to in the fourth paragraph, as well as when the fact is connected with another crime for which you must proceed ex officio ".
From a subjective point of view, it is a common crime and the fraud is generic.
instead, from the material point of view, the constituent elements of the crime require a circumscribed factual progression.
As we have previously anticipated, the typical conduct is composed, first of all, of a background also not punishable (except for cases of unlawful interference in private life as per art. 615 bis cp, for example), ie the creation or subtraction of images or videos from the contents «sexually explicit"And the next"publication»Or«diffusion" of the same; the fact, to be relevant, must have as its material object that it should «remain private» it's spread "without the consent of the persons represented».
When can an exchange, which is carried out through the ether, be called private?
This is the rule of common experience "everything that happens privately must remain private”Unless consent is given in the appropriate forms to the facts and to the protagonists of the affair.
The subsequent sending, material delivery, assignment, publication or dissemination triggers punishment.
The fact is punished with the imprisonment from one to six years and with a fine from € 5.000 to € 15.000.
Instead, the person who receives or acquires the intimate material and commits the conduct of the first paragraph without the consent of the people filed, but with a quid pluris, or in order to "bring them harm».
The fraud, in fact, is specific inasmuch as the agent must be aware, in addition to being in place the typical conduct, of representing the further purpose of causing damage (to the image, health, heritage, etc.) beyond the realization of the same.
The legislator probably wanted to mediate between the need to stop the diffusion of images in good time, and to exclude the conduct of those who do so by showing that they did not want to cause offense.
The paradox is that the agent will have to prove that he has contributed to the spread without wishing to harm anyone: the clause seems, however, to have been inserted by the legislator in order to protect the right of defense (especially in cases borderline)
The equalization of the sanctioning regime appears however contrary to the principle of proportionality between the two facts (ie those who produce and spread and all others
The data, however, are alarming.
The data concerning the personality of the child victim and / or author of these criminal cases is extremely interesting.
From the analysis of the samples examined it would seem to be completely separated from variables such as: ethnic origin, economic status, incensity and family environment, and destined to undergo a drastic increase.
The Cecatiello Law Firm advises its clients for the best management of juvenile criminal proceedings.
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