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The phenomenon of child pornography
child abuse material. In view of the fact that the identity (and therefore also the age) of most victims
who are depicted is not known, age is generally assessed using the Tanner criteria. 183 These medical
criteria provide an estimated age up to the age of fifteen on the basis of physical build and hair growth.
This means in practice that in the identification and assessment of material in relation to which no
other information regarding the age of the depicted individual is available, only material involving
pre-adolescents and adolescents can be designated as constituting a criminal offence. The use of the
Tanner Criteria and the formulation ‘apparent age’ in Article 240b of the Dutch Criminal Code offer
fewer possibilities to protect children who appear to be of age (generally ±15 to ±18 year olds). 184 Such
material is not classified as child abuse material if only the Tanner criteria are used for assessment. This
problem occurs in the (commercial adult) pornography industry, amongst other domains. It is not apparent
whether it involves a model of full age or a minor who appears to be of full age. The latter is a
case of (post)adolescent child pornography, which from a legal perspective is covered by the term child
pornography 185 and also incurs the appropriate criminal charges, 186 if the actual of age of the victim is
known. The opposite case – material whose production involves the use of an adult who appears to be
pre-adolescent or adolescent 187 – is also a criminal offence in the Netherlands, as this material resembles
child abuse material. In this case, it makes no difference what the depicted individual’s actual age is, 188
not even if it is proven later on that the individual concerned is an adult. 189
‘Apparently involved’
By adding the words ‘schijnbaar betrokken’ [apparently involved], the legislator indicated in 2002 that even
material that is produced without the direct involvement of a real child is subject to this criminal provision.
This legislative amendment came about as a result of the ratification of the Convention on Cybercrime
that was created within the framework of the Council of Europe. 190 In addition to the situation in
which the material forms a realistic representation of an abuse scenario, it is also possible for images to
be manipulated and/or produced entirely using digital techniques. The legislator refers to both of these
methods of production as ‘virtual child abuse material. 191 When the legislative amendment was made
in 2002, the legislator clearly anticipated that the boundary would be set in such a way as to include realistic,
life-like images. 192 On this basis, it is sufficient for the Public Prosecution Service to assume that
the depicted person resembles a child and that the impression of actual abuse is given. 193
183 Lünneman et al., 2006, p.75; Van der Zee & Groeneveld, 2007, p.236.
184 Van der Zee & Groeneveld, 2007, p.235-236.
185 Parliamentary Papers II 2001/02, 27 745, no.6, p.10.
186 Court of Alkmaar, 17 March 2011, LJN: BP8253.
187 Lanning (2010, p.83) refers to this material as simulated child pornography.
188 Parliamentary Papers II 2001/02, 27 745, no.3, p.4.
189 Supreme Court 18 November 2008, LJN: BF0170 (findings of Advocate-General Machielse).
190 Convention on Cybercrime (see §1.3)
191 Parliamentary Papers II 2000/01, 27 745, no. 3, p.4; Cf. Koops & De Roos, 2007, p.60: “it seems to be better
to employ a more restricted designation where we are actually concerned with realistic images (as they are called in the
Convention on Cybercrime) or more preferably images that cannot be distinguished from real-life, which the approach
used in USA legislation.”
192 .Parliamentary Papers II 2000/01, 27 745 no.1, p.2; Cleiren & Verpalen (ed.) Tekst en Commentaar: Strafrecht
[Text and Annotations in Criminal Law], 2010, p.1127.
193 Lünnemann et al., 2006, p.40
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