CLAIMS THAT GERMANY has decriminalised “child porn possession” are false and in some cases may stem from a mistranslation of a German legal term.

Possession of Child Sexual Abuse Material (the preferred term for what is sometimes called “child pornography”) remains illegal and punishable by imprisonment in Germany.

“‘Pro-Pedophile’ Activist Group Celebrates As Germany Decriminalizes Child Porn Possession,” one post made by an Irish Facebook user reads.

A number of online publications have also run headlines recently which have claimed that Germany had decriminalised child sexual abuse material.

Many of them noted in their copy that Germany had, in fact, merely planned to reduce mandatory minimum sentences for crimes involving possession and distribution, to three months and six months imprisonment respectively.

The Bundestag, Germany’s parliament, published an explanation for this change.

Giving an example of a case where a mandatory minimum of a year’s imprisonment may be overly harsh, it said that the law could be changed for an accused person who “clearly did not act out of his own sexual interest in child pornography content, but on the contrary [...] in order to stop, prevent or solve another offence”.

“Such cases have occurred particularly frequently with parents and teachers of older children or young people who have found child pornography material on them and passed it on to other parents, teachers or the school administration to inform them of the problem,” the explanation in the draft law reads.

However, there is no proposal to make possession legal or to reduce the current maximum sentences for such crimes.

Translations

So how have plans to punish distribution of child sex abuse material with imprisonment of six months to ten years been interpreted as “decriminalisation”?

Decriminalisation is a term that in both legal and colloquial senses implies that something is no longer illegal or treated in the criminal system.

In this instance, the claim may have something to do with how a German legal term was translated.

The German criminal code makes a distinction between more and less serious crimes: “Verbrechen und Vergehen”.

More serious crimes, known as Verbrechen, are defined as those which are punishable by a year’s imprisonment or more.

The less serious crimes, Vergehen, are anything that can be punished by less than a year in prison.

These may be analogous to felonies and misdemeanors in the United States.

The Irish legal system also organises criminal offenses into categories: Summary and indictable offences; Minor and non-minor offences; and Serious and non-serious offences.

However, these do not map so neatly onto the Verbrechen/Vergehen distinction.

It should also be noted that acts included under these lower categories are not decriminalised — they are still crimes and people are arrested and imprisoned for them.

The German criminal code also notes that there may be lesser offenses than Vergehen (for example, parking violations), but it does not cover these.

The confusion online may stem from the fact that a common translation for Verbrechen is simply “crime”. So to say that an act is no longer classified as Verbrechen could be interpreted to mean it is no longer considered a crime — an extremely misleading way to describe acts that are still illegal, arrestable and punishable by up to ten years in prison.

To give context: the equivalent Irish laws are found in the Criminal Law (Sexual Offences) Act 2017.

These outline th maximum sentences that can be handed down for the possession and distribution of child sexual abuse imagery, but do not set any mandatory minimum punishments at all — mandatory minimum sentences are relatively rare in Ireland.

In the German terminology, almost no Irish crimes would be considered Verbrechen — serious crimes — however, it would not be accurate to say that Ireland had therefore decriminalised theft, to give another example, because it did not align with the German definition of the crime’s category.

The possession and distribution of child sexual abuse material remains illegal in the German criminal justice system, though minimum sentences have been lowered to account for situations such as when a person hoping to prevent crimes against children possesses or distributes such material.

Germany is not decriminalising the possession and distribution of child sexual abuse material.

Mandatory minimum sentences are being lowered, reclassifying them as Vergehen (lesser crimes) as opposed to Verbrechen, which is often simply classified as “crimes”. 

However, the possession and distribution of child sexual abuse material remains illegal and perpetrators can still be arrested and sentenced to lengthy prison sentences for such offenses.

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