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The phenomenon of child pornography
years’ imprisonment if an offender makes a habit of committing an act described in Article 240b of the
Dutch Criminal Code. 166 In addition, the (apparent) age limit of potential victims has been raised from
sixteen to eighteen years of age.
The text of Article 240b of the Dutch Criminal Code reads as follows:
- A custodial sentence of up to four years or a fine of category five shall be imposed upon an individual
who distributes, offers, openly exhibits, produces, imports, conveys, exports, acquires or has possession
of an image, or a data storage medium containing an image, of sexual conduct in which
someone who has apparently not yet reached the age of eighteen years is involved or is apparently
involved, or who obtains access to such material by means of a computer system or using a communications
service.
- A custodial sentence of up to eight years or a fine of category five shall be imposed upon an individual
who makes a profession from or a habit of committing one of the offences described in paragraph one.
However, the custodial sentences stipulated in Article 240b of the Dutch Criminal Code may be increased
by one third in the event that the offence is committed by two or more persons acting in concert, or in
the event that the offence is committed in a relationship of dependency. In the event that the offence
results in serious physical injury or threatens the life of another individual, a custodial sentence of up
to 15 years or a fine of category five may be imposed. If an offence as described in Article 240b of the
Dutch Criminal Code causes death, such an offence carries a custodial sentence of up to 18 years or a fine
of category five. 167 A community service order may also be imposed in place of a custodial sentence. 168
Sentences and orders that are imposed may also be suspended. 169
166 At least, in so far as this is covered in Article 240b of the Dutch Criminal Code. However, the penalty
carried by an offence is partly stipulated under Article 248 of the Dutch Criminal Code.
167 Article 248 of the Dutch Criminal Code. These aggravating circumstances that incur heavier penalties
are also listed under Article 28 of the Lanzarote Convention as circumstances that the court must be
able to take into account when determining the sanction to be imposed for criminal offences described
in the Convention. See also Article 5 of the EU Council Framework Decision 2004/68/JHA of 22 December
2003 on combating the sexual exploitation of children and child pornography, OJ L 013, 20 January
2004.
168 A community service order consists of community service – undertaking unpaid labour – or a training
order, or a combination of both, under Article 9 paragraph 2 of the Dutch Criminal Code. At the time
of writing, the proposal to abolish the training order for individuals of full age as an independent
community service order is being considered by the Upper House of Dutch Parliament, Parliamentary
Papers I 2010/11, 32 169 no. A.
169 A suspended sentence or order offers opportunities to work on behaviour modification and therefore
to prevent any recidivism. However, that depends not so much on the duration of the suspended
custodial sentence, for example, but actually upon the duration of the probationary period, which
is generally two years. During the probationary period, the person convicted must comply with the
special conditions, and is subject to supervision by the probation and after-care service. The threat of
the suspended sentence being executed in the event of failure to comply with the special conditions
serves as a deterrent. The special conditions that may be imposed as part of suspended sentences will
be examined in greater detail in §3.6.2.
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