by Katrin
Thu Feb 20th, 2014 at 05:22:25 PM EST
Whenever a criminal case is widely reported, there are calls for new laws. These calls are justified with the argument that we must prevent another crime of that sort. Well, we can't. Laws get broken, even if they are ethically sound and well formulated. Even if you alter the law with each case of children being abused in order to produce child porn, you can't prevent all abuse. The proposals often are an emotional response, not a rational one, and I doubt that many people who express an opinion that the law must be altered know what exactly the law is.
Those who do often have an ulterior motive they rather don't talk about. There are ideas around that crime can be prevented with enough surveillance and by the right algorithms. Ultimately that is the rationale of the signature strikes: men who move around in a car with other men in Yemen most likely are terrorists. A man who buys pictures of naked children most likely will buy child porn too. Readers of leftist sites will call for violent protests.
The most emotional reactions are triggered off by cases or allegations of child abuse and child porn as in the case of Edathy. The discussion of this case mixes so many different concepts that I no longer know what we are talking about, and I have tried to clarify some definitions (and the difference between sexual preference or desire and sexual behaviour) and norms.
Paedophilia and child abuse
Paedophilia is a sexual orientation, and like all sexual orientations it is for life, not curable. It counts as a psychiatric disorder. Paedophiles are sexually attracted by pre-pubescent children. Their number is estimated at about 1% of the population. Fortunately not all paedophiles are attracted exclusively towards children, many desire adult sexual partners too. Attraction by children whose pubescence has already set in is often called paedophilia too, but more accurately is hebephilia and ephebophilia. Sexual orientation does not necessarily translate into behaviour: paedophile is not synonymous with child abuser. Many paedophiles are aware that living their sexuality would hurt children. Some of them seek therapeutic help. There they learn how to recognise "dangerous" situations and to avoid contact with children that could turn abusive. In order to protect children from sexual exploitation this should be supported. Participants have to overcome their fear, though, before they contact such projects. It does not help if paedophilia is used as a synonym for sexual acts with children. Only a small portion of sexual abuse of children is committed by paedophiles. Most cases are committed by persons who would prefer adults, but situatively seek sex with children. Warnings of the pervert stranger bring children in danger, because most perpetrators have a sex life with adults, know the child well, and exploit that relationship. One in four cases is committed by the child's stepfather, definitely a person who has sexual relationships with adults. Only 20% of the perpetrators (of known cases) are strangers.
Child porn and pictures of naked children
There are two categories of child porn in German law: Material showing sexual activities of children under 14 (§184b ): The production, dissemination, and possession are criminalised.
Material showing sexual activities of children between 14 and 18 (§ 184c Here the punishment is lighter, and there is a provision for juvenile producers.
It is not always clear what "activities" means, if it includes all pictures that focus on genitals. The only "grey area" that I can see, would be here. The English wikipedia shows the cover of the 2nd edition, without commenting why they didn't show the 1st. Well, here it is, still legal under German law, but how much longer until it will be banned?
Pictures of naked children without a sexual context are not in a grey area. They can be made, traded and possessed legally. Probably most parents possess a few, I certainly do. Now, in the discussion of the Edathy case, there are proposals to ban the trade and publication of these photos, making it illegal to show photos from holidays on the beach to grandparents and friends. To protect children? From what? I really would like to know where our resident proponents of revising these sections of the criminal code would draw the line between legal and illegal. It is perfectly probable that the photos Edathy purchased were exactly this sort. Sites peddling them find them on facebook or so. For the children on the photos it is definitely not a nice thing if their pictures are re-published in this way, but this re-publishing is already illegal as a violation of personality rights (not as child porn). This doesn't make the purchase or the possession illegal though.
The search warrant against Edathy
The search warrant states that Edathy is suspected of legal behaviour and claims that 90% of the persons who show this legal behaviour show a "paedophile disposition". So what? That's not illegal either. And then they conclude "from criminalistic experience" that paedophiles show the illegal behaviour of possessing child porn. This is outrageous.
It is unconstitutional too, because there is no description of any criminal behaviour of the defendant:
Das Bundesverfassungsgericht
In einem Durchsuchungsbeschluss muss der Ermittlungsrichter ein dem Beschuldigten angelastetes Verhalten schildern, das die Voraussetzungen eines Strafgesetzes erfüllt. Die Schilderung braucht nicht so vollständig zu sein wie die Sachverhaltsdarstellung in einer Anklage oder einem Urteil. Es müssen aber ein Verhalten oder sonstige Umstände geschildert werden, die alle wesentlichen Merkmale des Straftatbestandes erfüllen.
(Translation: In a decision on a search warrant the investigating judge must describe the alleged behavior of the accused which complies with the requirements of a criminal law . The description need not be as Complete as the facts presented in an indictment or a judgment. However, a behavior or other circumstances must be described, that covers all the essential features of the offense.)
The argumentation abolishes fundamental rights of suspects, and this is only made acceptable because cases of child abuse and related crimes trigger off an emotional response, not a rational one. What if it had been a search warrant stating that people who distribute flyers against nuclear power can be expected to try violence or sabotage next? There really is no difference.
