On Friday, 13 December, EU justice ministers approved their political agreement (‘general approach’) on the directive on criminal sanctions for crimes connected with the distribution and possession of child sexual abuse material.
This directive constitutes the corresponding ‘justice’ part of the regulation on the removal of such content, which is still stuck in the EU Council after yet another failure [to make progress] on the subject on Thursday, 12 December (see EUROPE 13544/3).
In a press release, the Council of the EU explains that the revised rules broaden the definition of offences, ensuring that all forms of sexual abuse and sexual exploitation of children—including those made possible or facilitated by new online tools—are made criminal offences.
Member States are required to criminalise, investigate, and prosecute the offence of livestreaming child sexual abuse. Realistic images of child sexual abuse are included in the definition of the offence so as to, specifically, respond to the growing emergence of deepfake or AI-generated abuse material.
The text also introduces an offence of providing instructions on how to commit child sexual abuse, sexual exploitation, or solicitation of children for sexual purposes.
The penalties incurred have been increased. Where a person takes advantage of a child’s particularly vulnerable situation, such as a disability, in order to have sexual relations with a child, the perpetrator will be punished by a maximum prison sentence of at least 10 years (currently 8 years). The maximum prison sentence has been increased from 3 years to 5 years when the child has reached the age of sexual consent.
Member States can always provide for harsher penalties.
It was, in part, this notion of consent that posed a problem during discussions, leading a group of seven Member States to issue a joint statement denouncing the text’s lack of ambition on this subject. While Belgium and Luxembourg were able to approve the text by banking on future discussions with the European Parliament, Sweden, like Ireland, abstained.
These countries—along with Slovenia, Finland, and Latvia—lamented that the majority of Member States were unable to support a more ambitious bill.
“For us, it goes without saying that unconscious or sleeping children cannot consent to sexual acts. Neither can the absence of consent be refuted exclusively by the child’s silence, verbal or physical non-resistance, or past sexual conduct. This should all be made clear in the operative part of the Directive,” they write.
The approved text stipulates that consent must be given voluntarily, as the child’s freely formed will, and that it may be withdrawn at any time. [The directive] also states that consent cannot be considered to exist in cases where the child is not capable of forming a free will. However, for this group of countries, this definition does not go far enough.
On Friday, Commissioner for Home Affairs Magnus Brunner, who is responsible for the text, also felt that the text could be improved during discussions with the European Parliament, particularly with regard to this definition of consent. The European Parliament has yet to adopt its position.
Link to the statement by the seven countries: https://aeur.eu/f/esv
Link to the general approach: https://aeur.eu/f/esq (Original version in French by Solenn Paulic)