Johanna Westeson - The ICHRP

The Convention mandates states to criminalize all dealings with child pornography (Article
20). ‘Child pornography’ is understood as “any material that visually depicts a child
engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual
organs for primarily sexual purposes,” and thus includes images with sexual content of
children even when no real child was involved in the production of the material. However,
states parties can decide to exclude from criminal liability the production and possession of
such material when it consists exclusively of simulated representations or realistic images
of a non-existent child (Art 20(2)). Furthermore, as discussed above, the same article
provides for an exception for consensual and private production and possession of
pornographic material of children who have reached the legal age of consent (Art 20(3)). 584
States parties can also opt not to criminalize access to child pornography which has been
knowingly obtained (Art 20(4)).
The Convention prohibits recruiting a child into participating in pornographic
performances or cause a child to participating in such performances without, again,
providing for the exception when children have reached the legal age of consent (Art.
21.1(a)). There is no definition of ‘pornographic performances,’ but according to the
Explanatory Report, the provision is intended to deal “essentially with organised live
performances of children engaged in sexually explicit conduct.” 585 One can imagine
difficult issues of interpretation arising under this article. Corruption of children (defined
as the intentional causing of a child to witness sexual abuse or sexual activities, without
having to participate), applies only to children who have not reached the age of consent
(Art 22).
In conclusion, the Convention strongly condemns sexual exploitation of children, while
also acknowledging that persons who are technically under-age (that is, under 18) but over
the age of consent have a legitimate right to explore their sexuality in a consensual manner.
However, this does not apply when money or any other kinds of remuneration are
involved.
The Council of Europe Convention on Cybercrime 586 includes a provision on child
pornography. Its Article 9 obliges states parties to make the production, provision,
distribution, procurement and possession of child pornography a criminal offense. Child
pornography includes pornographic material that visually depicts a minor engaged in
sexually explicit conduct, a person appearing to be a minor engaged in sexually explicit
conduct, and realistic images representing a minor engaged in sexually explicit conduct.
The term ‘minor’ shall include all persons under 18 years, but states parties may set a
lower age-limit (not lower than 16 years). States parties may opt out of the penalization of
the procurement and possession of child pornography, as well as of the penalization of
images where no real children were involved in the production of the images.
Worth mentioning is also the Council of Europe Convention on Action against Trafficking
in Human Beings 587 – explored in Chapter 5G: Sexual exploitation and trafficking. This
Convention targets human trafficking of both adults and children.
584 See also Chapter 2C: Age of consent.
585 Ibid, para. 147.
586 Council of Europe Treaty Series – No. 185. Open for signature on 23 November 2001, in force 1 July
2004.
587 Council of Europe Treaty Series – No. 197, open for signature on 16 May 2005, in force on 1 February
2008.
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