With the 2023 amendment, the legislator has tightened the penalties for child pornography. The reason for the tightening was a prominent case, which was further fueled by the media and politics. In the case of pornographic images, a distinction is made between real pornography, apparent pornography (mere impression of a sexual act that does not actually take place) and virtual pornography (completely artificially produced).
What is meant by a pictorial representation of sexual acts by children or young people (child pornography)?
The law distinguishes between visual depictions of sexual acts involving children or adolescents. In the case of § 207a StGB, child pornographic material includes images of minors (persons up to the age of 14) and minors of legal age (persons between the ages of 14 and 18) that depict sexual acts or create the impression of sexual acts. The offense consists of the possession, production, distribution and making available of the depiction of sexual abuse of minors as well as the mere viewing by knowingly accessing it on the Internet. The 2023 amendment significantly tightened the penalties in order to counteract the increasing spread of such content in the digital space. The term "pornographic depiction of minors" was renamed "pictorial sexual child abuse material and pictorial sexual depictions of minors" by the amendment.
Pictorial sexual child abuse material and pictorial depictions of minors are understood to mean the
- actual depiction of a sexual act on a minor or depictions of a sexual act which the minor or minor of legal age performs on him/herself, on another person or with an animal.
- Realistic images of an event with a minor who is underage or of legal age, which give the impression of having actually taken place but have not actually taken place. The term "event" is understood to mean sexual acts performed on the minor or minor of legal age as well as sexual acts which the minor or minor of legal age performs on herself or with an animal.
- realistic images of the genitals or pubic area of minors that serve to sexually arouse the viewer.
Penalties in the context of child pornography
Anyone who produces, offers or otherwise makes available a depiction of child pornography must expect a prison sentence of between 6 months and three years.
However, if many images or representations are produced, offered, provided, shown or otherwise made available, the penalty is one to five years. What exactly is meant by a large number of depictions has neither been judged nor standardized in the law. The ministerial draft assumes that there are around 30 prohibited images or depictions. Images and videos are subsumed under the term depictions.
If the offense is committed for the purpose of distribution or trafficking, the penalty range is one to ten years. The penalty range is also one to ten years if the offense is committed as part of a criminal organization or with the use of violence. If the child suffers a particularly serious disadvantage, the court can also impose penalties of this level.
Possession of child pornography is also a punishable offense. Anyone who obtains or possesses images or depictions of a minor of legal age must expect a prison sentence of up to two years. However, if it is a depiction of a minor child, a prison sentence of up to three years is possible.
Knowingly accessing such material on the internet is a punishable offense. Anyone who knowingly accesses child pornography is liable to a custodial sentence of up to two years, or up to three years in the case of a minor, just like the mere owner.
When is there no penalty for child pornography?
§ However, Section 207a StGB also provides for special cases and exceptions in which no penalty is imposed.
Persons who produce child pornographic images of themselves or with the consent of an adult minor (e.g. in the context of a consensual love relationship) for their own use can remain unpunished as long as there is no risk of dissemination. Likewise, anyone who produces images of themselves and makes them available to others with their consent for personal use or possesses images of themselves remains unpunished.