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.
Just think that if previously the vast majority of pornographic and child pornography material present in the ether was of illicit origin, now a large part comes from sharing it by the same subjects depicted in the images ( selfies , amateur videos).
Exchanges considered personal by subjects who are unlikely to be fully aware of the risks hidden behind such representations.
This tendency towards commodification ends up embracing every aspect of the human being, even those that are typically intimate and private such as 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 spaces are now hosting high-level criminal profiles, particularly the increasingly frequent and widespread use of anonymity and encryption services, especially through Darknets (in Italian, a dark network , or a private network), which pose new challenges in investigating and prosecuting 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 on 20 November 1989 and ratified by the domestic legal system with law no. 276/1991, the Italian legislator introduced 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 noting here that the reform law modified the objective element of the crime of production of pornographic material, replacing the controversial verb "exploit" with the term " use " and eliminating the specific intent of the crime.
“ Whoever performs pornographic performances or produces pornographic material, using minors under the age of 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.
It is in fact in this case the Lanzarote Convention of 25 October 2007, adopted by the Council of Europe for the protection of children against sexual exploitation and abuse, to sanction new forms of crime including, for example: solicitation of minors (also through the internet), instigation and condoning 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 arrived at the conclusion that (taking into account the semantic and systematic nature) the performance of a sexual act by or on the minor was necessary, believing that only in such cases did his sexuality come into play in such a way as to cause an actual danger to 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 of doctrine and subsequently also the jurisprudence have intervened, always with a guarantor perspective, accepting a decidedly broader notion, considering it to include any object or spectacle consisting essentially of : manifestations or solicitations of the sexual instinct of the producers or consumers.
Sexting ( sex and texting) consists of sending and/or receiving and/or sharing messages with sexually suggestive videos or images via the internet or , even more quickly, via smartphone.
sexting primary, when the protagonist of the image spreads the photo to third parties;
sexting secondary, when the disclosure 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 adults and consenting, sexting is legal.
Sending such materials to non-consenting individuals may constitute harassment or stalking.
The Court of Cassation (VI Section, Sentence No. 32404/2010) has in fact held that the crime of stalking includes the repeated sending of text messages, emails , or posts on social networks to the victim, as well as the dissemination on the latter of videos depicting sexual intercourse between the perpetrator and the same victim. This is not to mention, of course, the unlawful processing of other people's personal data.
The analysis of cases in which minors are portrayed deserves a diametrically different discussion: sending the photos to third parties could constitute the crime of distribution of child pornography material.
Even simply storing such photos on your device can constitute 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 a survey conducted by Skuola.net for the State Police, 15% of school-age children reported having pornographic or sexually explicit material shared with others (without their consent); in 49% of cases, the reason given was a prank.
Needless to say, no legislator would have dared to imagine such a social evolution, and in fact, Article 600- ter , in its initial formulation, was not prepared to address 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 lower court judges noted that the crime under Article 600-ter, paragraph 4, could not be configured in the specific case, since the crime punishable was the transfer of child pornography material provided that it had been created by a person other than the minor depicted, while the incriminating selfies had been taken and sent to the defendants by the minor herself.
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 material in relation to a subject who had received and stored photos of a minor, held that to establish whether there is use of the minor it is necessary to evaluate the consent given, in the light of the concrete elements of the case.
The age of the minor, the methods of requesting consent, the involvement of third parties, the subsequent destination of self-produced images, and so on, must therefore be taken into account.
De quo , a necessary prerequisite for the configuration of the criminal offence provided for in the second paragraph and following of art. 600 ter is constituted by the otherness and diversity between the minor 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.
Regarding civil liability (who is responsible for compensating for damages), a recent ruling by the Sulmona court established that the parents of minors are responsible.
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 the civil proceedings the requests for compensation for damages made by the parents of the 14-year-old were partially accepted, with a sentence of over 100 thousand euros to be paid by the parents of the minors who distributed 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 ruling "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 the 14-year-old, not even sparing her parents who "they would not have watched over the imprudent conduct of their daughter, from which the risque photos would have started ".
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?
Let's think about revenge porn , for example (let's imagine a boyfriend who, when the relationship deteriorates, still remains in possession of the photos, and who could spread them to "get revenge").
Revenge porn is revenge pornography: posting personal photos of your ex-partner on social networks as a way to get 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.
Coming to our aid is the bill definitively approved on 17 July 2019 , which introduces two different types of crime:
the dissemination of sexually explicit images or videos , intended to remain private, without the consent of the persons depicted , of the person who created them, and of the person who receives them and contributes to their further dissemination for the purpose of causing harm to the persons depicted.
The inclusion of Article 612-ter of the Criminal Code , entitled "Illicit dissemination of sexually explicit images or videos," was not initially foreseen in the initial bill but was inserted during the debate in the Assembly on April 2, 2019, despite a similar and more comprehensive bill having already been presented in the Senate.
<< Unless the act constitutes a more serious crime, anyone who, after having created or stolen them, sends, delivers, cedes, publishes or disseminates images or videos with sexually explicit content, intended to remain private, without the consent of the persons represented, is punished with imprisonment from one to six years and a fine from 5.000 to 15.000 euros.
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 acts are committed by the spouse, even if separated or divorced, or by a person who is or has been linked by an emotional relationship to the injured party or if the acts are committed through computer or telematic tools ( revenge porn).
The penalty is increased from one third to one half if the acts are committed to the detriment of a person in a condition of physical or mental inferiority or to the detriment of a pregnant woman.
The crime is punishable upon complaint by the injured party. The deadline for filing the complaint is six months. The complaint can only be withdrawn by the court. However, proceedings are initiated ex officio in the cases referred to in the fourth paragraph, as well as when the act is connected to another crime for which proceedings must be initiated ex officio.
From a subjective point of view, it is a common crime and the intent is generic.
Instead, from a material point of view, the constituent elements of the crime require a well-defined factual progression.
As we have already mentioned, typical conduct is first and foremost composed of a pre-existing fact that may not be punishable (except in cases of unlawful interference in private life pursuant to Article 615 bis of the Criminal Code, for example), namely the production or theft of images or videos with " sexually explicit " content and their subsequent " publication " or " dissemination . " To be relevant, the fact must concern material that was intended to " remain private " and be disseminated " without the consent of the persons depicted ."
When can an exchange, which is carried out through the ether, be called private?
The common rule of experience remains this: " everything that happens privately must remain private " unless consent is given in forms appropriate to the facts and the protagonists of the event.
The subsequent sending , delivery of material, transfer, publication or diffusion gives rise to criminal liability.
The act is punishable by imprisonment from one to six years and a fine from €5.000 to €15.000.
On the other hand, those who receive or acquire intimate material and carry out the conduct of the first paragraph without the consent of the people filmed, but with a quid pluris , or with the aim of " causing them harm ", are punished under the second paragraph.
In fact, intent is specific in that the agent must be aware, in addition to carrying out the typical conduct, of representing the further aim of causing damage (to image, health, assets, etc.) beyond the actual realization of the same.
The legislator probably wanted to mediate between the need to stop the dissemination of images in a timely manner, and that of excluding the conduct of those who do so by demonstrating that they did not intend to cause offence.
The paradox is that the agent will have to prove that he participated in the dissemination without intending to harm anyone : the clause seems, however, to have been inserted by the legislator in order to protect the right of defense (especially in borderline cases ).
However, the equalisation of the sanctioning regime appears to be contrary to the principle of proportionality between the two facts (i.e. those who produce and distribute and all the 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.
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