Johanna Westeson - The ICHRP

For that reason, it is not necessary to extend the prohibition to also cover painted, drawn or
otherwise simulated images. 603 The provision will only be applied to such images if a real
child has been the model of the image in a way similar to when a photograph is taken, and
the result clearly depicts the child in a sexually offensive way.
5. Concluding remarks
At the European level, there are strong binding and non-binding statements against sexual
violence and exploitation of children. These documents tend to focus primarily on criminal
law measures. During the last decades internet-related crimes such as child pornography
have drawn increasing attention from a law enforcement point of view.
The 2007 Council of Europe Convention and the 2005 EU Framework Decision attempt to
strike a balance between forceful responses to sexual exploitation and abuse of children, on
one hand, and permissiveness of the exploration of sexuality for young people, on the
other. This is particularly clear in the 2007 Convention, which in its explanatory report
specifically expresses the undesirability of over-inclusive penal provisions that may result
in bans on young persons’ consensual sexual activities. In this regard, the Convention sets
a good example from a sexual health and rights point of view.
The European Court of Human Rights has addressed state responsibilities to take action
when sexual abuse of children occurs. The Court acknowledged, as early as 1985 in X and
Y v. the Netherlands, that the state must make remedies available when sexual violence
against children is perpetrated by private actors. It is true that the Court in the case did not
use the language of ‘positive obligations,’ and that it found a breach of the right to respect
for private life rather than a breach of the prohibition of cruel treatment. Still, the case is an
early example of the doctrine of positive obligations in cases of violence by non-state
actors, which the Court has later elaborated. Similarly, in E. v. United Kingdom, the Court
discussed the nature of states obligations to interfere in incidences of private violence, and
underlined in particular the duty to perform thorough investigations when abuse is
suspected.
Domestic criminal laws provisions penalizing sexual violence against children are
intrinsically linked to domestic principles about the sexual autonomy of children/age of
consent. The German and Swedish examples illustrate how states in different ways grapple
with the ‘gray zone’ of sexual activity of and with minors who are close to the legal age
limit, and, in particular, when the other party is substantially older. The German example
shows an insight into potentially destructive power dynamics between older and younger
sexual partners, on one hand, while also recognizing that such relationships can be fully
consensual and should, in those instances, not be penalized.
In regard to child pornography, there is a strong consensus in the region that the production
and handling of such pornography should be criminalized. The primary rationale for this
strong stance is the need to protect children from harm, presumed to result from the
production as well as the dissemination of material with sexual content involving minors.
Variations exist between different laws, however, primarily in relation to penalization of
the production of child pornography where no real child has been involved. This can refer
603 Government proposal RP 6/1997 rd, s. 146/I, available in Swedish at Finnish Parliament website,
http://www.eduskunta.fi/triphome/bin/akxhref.sh?{KEY}=RP+6/1997++&{KIELI}=ru. Last visited on 4
February 2010.
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