Combating the sexual abuse and sexual exploitation of children and child sexual abuse material. Recast

The European Parliament adopted, by 599 votes to 2, with 62 abstentions, amendments to the proposal for a directive of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children, and child sexual abuse material, and replacing Council Framework Decision 2004/68/JHA (recast).

The matter was referred back to the relevant committee for interinstitutional negotiations.

The main amendments adopted in plenary are as follows:

Subject matter

This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child sexual abuse material and solicitation of children for sexual purposes, including if committed by means of information and communication technology.

Consent and exemption for peers

Given that lack of consent is one of the constituent elements of some of the offences set out in the directive, Members proposed introducing a definition of consent.

It is clarified that a child above the age of sexual consent will not be considered to have consented where the child was unable to form free will or due to other circumstances, including the child’s physical or mental condition, such as a state of unconsciousness, sleep, intoxication, surprise, freezing, illness or bodily injury.

An exemption from criminalisation should be provided for consensual sexual activities between peers (i.e., people of close age who have reached a similar level of psychological and physical development and maturity), provided that there is no abuse of trust or dependency between the peers. The fact that the perpetrator pretended to be a minor or a peer would be an aggravating circumstance.

Adapting to technological developments

The definition of child sexual abuse material should include any depiction, by any means, of a child's intimate parts for a primarily sexual purpose, as well as any realistic images, pseudophotographs, reproductions or representations of a child engaged in sexually explicit conduct or of the intimate parts of a child, for primarily sexual purposes, regardless of the method of creation or manipulation, including by using artificial intelligence, deepfake technologies.

Penalties for sexual abuse offences

Members proposed increasing the maximum penalties for several child sexual abuse offences, including sexual activity involving a minor who has reached the age of consent but has not yet given consent. These offences would carry a maximum penalty of at least 10 years' imprisonment.

Coercing or forcing a child to share material representing that child’s intimate parts without that child’s consent in order to obtain money, child sexual abuse material or any other benefit would be punishable by a maximum term of imprisonment of at least 8 years.

Acquiring or possessing child sexual abuse material for private use would be punishable by a maximum penalty of at least two years ' imprisonment. Distributing, disseminating, or transmitting child sexual abuse material would be punishable by a maximum penalty of at least four years ' imprisonment.

Removal of limitation periods

Members proposed that limitation periods be removed, as children may not fully understand that what happened constituted abuse, particularly if the perpetrator was a trusted adult. Surviving children may need to reach adulthood to acquire the emotional maturity to recognise the abuse for what it was. No limitation period should apply to victims' right to compensation.

Solicitation to commit sexual abuse

It would be punishable by a maximum penalty of at least five years ' imprisonment to intentionally promise or offer money or any other form of remuneration or consideration to anyone in order to induce them to commit offences relating to sexual abuse, including live streaming.

Each Member State should take the necessary measures to ensure that travelling to a country other than that Member States for the purpose of committing, or contributing to the commission of, any of the offences is punishable as a criminal act when committed intentionally.

Investigations and prosecutions

Effective investigative tools, such as those used in cases of organised crime, should be made available to persons, units or services responsible for investigating or prosecuting offences related to sexual abuse. Where appropriate, these tools should include special investigative tools such as the possibility of conducting undercover investigations, interception of communications, electronic or bank account surveillance, in accordance with national law.

Reporting

Member States should:

- ensure that at least all professionals and volunteers who work in close contact with children, including in the child protection, education, sport, childcare and health care sectors, as well as legal professionals, teachers and educators, family court judges and front-line police officers are informed and trained to recognise child sexual abuse;

- ensure the existence of accessible, visible, clear, user-friendly and gender-sensitive reporting mechanisms and that these reporting mechanisms are adequately resourced, including in terms of funding and staffing;

- take the necessary measures to ensure the possibility of third-party reporting.

Member States should ensure, where appropriate, efficient cooperation with Eurojust and Europol in criminal proceedings and investigations relating to child sexual abuse offences.

Lastly, Member States should ensure the provision of easily accessible, free of charge and comprehensive healthcare services for child victims of sexual abuse or exploitation, including sexual and reproductive healthcare.