The accusation of a criminal offense always impacts those affected, but an accusation related to child pornography, in particular, is, from experience, a significant burden for the accused. Offenses involving child pornography are not only subject to severe penalties but are also particularly strongly condemned by society. Even an accusation or an investigation can lead to considerable damage to one’s reputation and social environment.
Investigations into an alleged criminal offense should always be taken seriously. With the help of professional criminal defense, the chance of securing a dismissal of proceedings or an acquittal increases. We will show you which actions involving child pornography are punishable and what the accused should do in such a situation.
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What constitutes child pornographic content?
The old version referred to child pornographic writings. However, the legislator has reacted to increasing digitalization and established the term child pornographic content. This includes images, data storage devices, visual or audio recordings, and other depictions with child pornographic content.
Pornographic content (§ 11 para. 3 StGB) is to be classified as child pornography if the content involves:
● Sexual acts by, on, or in front of children
● Images of a wholly or partially unclothed child in an unnaturally sexually suggestive pose
● Images of the unclothed genitals or buttocks of children
Children here are all persons who have not yet completed their 14th year of life. Persons who are between 14 and 18 years old are classified as adolescents. Pornographic content concerning persons between 14-18 years is covered as youth pornography (§ 184 c StGB).
A distinction must be made between harmless images of children, for example, splashing naked in the bathtub or playing in a paddling pool in their own garden, whose recordings are used in a family context. In contrast, there are so-called “posing pictures” of children, which are considered child pornographic content. In most cases, it is not necessarily only the child’s nudity that plays a role, but particularly the sexual context, which must also be considered in the context of a criminal defense.
“Posing” occurs when children adopt certain postures or positions where their buttocks or genitals are not covered. Such a sexual posture is assumed if it is atypical for their age and particularly sexually suggestive. It is also given if an adult observer would generally consider this posture shameful, even if the child itself does not recognize this. An inappropriate scene or provocative clothing also plays a role here.
Child Pornography: Which actions are punishable?
For several years now, the accusation of child pornography has been omnipresent in current media. There are repeated large-scale raids, arrests, and court cases that are staged for media effect. This was reason enough for the legislator to undertake a comprehensive amendment of the criminal offense of child pornography (§ 184 b StGB) in a criminal law reform in 2015. Since then, offenses related to child pornographic content have been more clearly formulated and comprehensive. Specifically, this means that actions that were not previously punishable may now be criminalized under certain circumstances.
Possession of Child Pornography
The possession of child pornographic content is punishable and can be sanctioned with 1-5 years imprisonment (§ 184 b para. 3 StGB). A person who accesses, obtains possession of, or possesses child pornographic content depicting realistic or real-life events must expect a penalty. However, this only covers realistic child pornography content.
It becomes particularly difficult with online content and virtual access. If, for example, child pornographic content is found in WhatsApp groups or on Telegram, it may be difficult to determine where the content originated and to what extent it was distributed. For criminal liability, it is not necessarily essential to store the files in a folder on the computer or to physically possess them on a CD or DVD, but rather to have actual access to them.
Third-Party Procurement of Child Pornography
Not only one’s own possession of child pornography is punishable, but also the transfer to third parties, the so-called third-party possession (§ 184 b para. 1 no. 2 StGB). This is always the case when the accused willfully enables access and possession of child pornographic content for a third person. Here too, only the transfer of content that depicts or reproduces a realistic or actual event is punishable.
The enabling or procurement generally occurs when the transfer to the third party is done in such a way that the latter can gain knowledge of it. Personal handover is not required; transferring to an intermediate storage or sending content in a chat (e.g., on WhatsApp or Telegram) is sufficient. Even the attempt is punishable.
Distribution of Child Pornography
The distribution of child pornography is the first variant of the offense, codified in § 184 b para. 1 no. 1 alt. 1 StGB. Similar to third-party possession, a person who makes child pornographic content available to others, i.e., distributes it, is liable to prosecution. The difference here is that the group of people who gain possession of the content can no longer be controlled by the accused. For criminal liability under this norm, the recipient group does not have to comprise “a few individually identifiable” persons. The interpretation is controversial: according to the prevailing opinion, the possibility of knowledge by one person is sufficient, while another view requires at least 3 persons to have received the content.
Distribution is given when numerous members of a group receive the files, which are no longer manageable for the accused. It is irrelevant whether this group of people actually takes notice of the child pornographic content. Even when sending personalized links (e.g., email), distribution can be assumed under certain circumstances.
Anyone who participates in a file-sharing network for child pornography can also be liable for distributing child pornography (according to the Federal Court of Justice). In this case, all persons who participated in the distribution (e.g., actively exchanging content) may be liable. For a cloud or an email, it is already sufficient if the recipient has received the files without having accessed or downloaded them yet.
Making Child Pornography Publicly Accessible
Similarly, the offense of making content publicly accessible, as per § 184 b para. 1 no. 1 alt. 2 StGB, applies here. This includes the public showing, exhibiting, posting, or offering for sale of child pornographic content. In contrast to distribution, the content here is offered to an unspecified group of people (e.g., anyone who visits the website). It is sufficient that the possibility of taking notice exists; actual access by third parties is not required.
Production of Child Pornography
Anyone who produces or manufactures child pornographic material is also liable to prosecution (§ 184 b para. 1 no. 3 StGB). As with possession, it is relevant that actual events are produced, for example, through photos or video recordings of child pornographic acts or abuse. A reproduction of such content is also covered by the norm. However, it is not relevant for criminal liability whether the produced content is later distributed or other (punishable) acts are carried out with it, or whether it remains in the sole possession of the producer. Preparatory acts for production or distribution are also punishable.
Child Pornography Penalty: What are the consequences of conviction?
The penalties for actions related to child pornographic content vary depending on the offense variant and the fulfilled elements of the offense. The specific act and the circumstances of the individual case are also decisive for the amount of the expected penalty.
Upon conviction for the production, distribution, or making accessible of child pornography, imprisonment of one year to 10 years is threatened. Due to the minimum sentence of one year, child pornography offenses are thus classified as felonies. A monetary fine is excluded.
For the procurement and possession of child pornographic content, imprisonment of one year to 5 years is threatened.
If the accused acts commercially or as part of a gang with the intent of repeated criminal acts, the minimum penalty is imprisonment of not less than 2 years. This is often already assumed if one was a member of a WhatsApp group whose sole purpose was to exchange child pornographic content.
Attention: Due to this threat of punishment, a dismissal of proceedings is no longer easily possible. If investigations are initiated, it is difficult to avoid a main hearing in court. It is therefore particularly important to contact an experienced criminal defense lawyer as quickly as possible.
If the child pornographic content does not depict actual events but rather unrealistic occurrences, the threatened imprisonment is reduced to 3 months to 5 years.
In addition to the criminal consequences, the accused should be aware that even being suspected of such an offense can have far-reaching consequences:
- In addition to a criminal conviction and possibly several years of imprisonment, there is a risk of civil conviction to pay damages to the victims.
- A conviction often leads to an entry in the police record. This can result in significant disadvantages, for example, professionally or when entering certain countries (e.g., USA, Singapore).
- The consequences for one’s social and personal environment and one’s own reputation should never be underestimated, as the mere accusation of a sexual offense is highly stigmatized by society. The mere accusation of a sexual offense leads to social stigmatization and prejudgment. This can already have significant consequences during the investigation, such as loss of employment or loss of personal contacts.
Tips from a Lawyer: How to behave as an accused person
The criminal, as well as personal and professional consequences, suggest it: Always take the accusation seriously. Waiting and hoping for better times carries great risks and allows valuable time for developing a defense strategy to pass.
In the case of accusations of offenses related to child pornography, the police and public prosecutor’s office are obliged to initiate investigations. A dismissal of proceedings is therefore significantly more difficult to achieve than with other accusations (for example, misdemeanors). A criminal defense lawyer can request access to files for you to examine the evidence and advise you on your legal options. Early criminal defense can increase the chance of a sentence reduction.
On the other hand, however, it also applies: Do not make a statement! Even if waiting is futile, you should not give in to the temptation to set everything straight during a police summons. It is understandable that you want to explain yourself or clear the accusation. However, as specialized lawyers with years of experience in criminal proceedings, we strongly advise against it.
Accused persons usually do not know the status of the investigation by the officers and which statements are suitable not to exonerate you as the accused, but on the contrary, to incriminate you. By making a statement, you can unconsciously contribute to your own conviction and incriminate yourself. In the event of a summons, please contact the lawyer you trust. This lawyer will cancel the appointment for you and discuss the further course of action with you after reviewing the files.
If you are already in pre-trial detention, exercise your right to remain silent. You have the right to remain silent and also the right to legal counsel. In any case, note down our emergency number and contact us at any time:
- Call us without obligation: +49 (0)711 – 84 98 77 0
- Arrest/House Search? +49 (0)151 61429000 (24h emergency service)
In cases of child pornography accusations, house and apartment searches are also common for the accused. If you are affected by such a search, remain calm in any case. At the same time, however, you should refrain from any active assistance and not help with the search or voluntarily hand over any items. Accused persons are not obliged to hand over, for example, their mobile phone PIN. Although this is often claimed, it only serves to deceive.
Always ask to see the search warrant and demand proper documentation of the seized items and data carriers. If possible, bring in a witness. In any case, you should also contact a lawyer as quickly as possible for support.
How a Criminal Defense Lawyer Can Help with Child Pornography Accusations
Sexual offenses related to child pornographic content are very complex, and the legal regulations are still comparatively new and comprehensive. Therefore, they are hardly comprehensible for legal laypersons or accused persons under suspicion. Moreover, those affected have their thoughts elsewhere. Especially with child pornography, many different factors play a role when it comes to assessing whether the behavior is criminal or not.
Only an experienced and specialized criminal defense attorney can help you prove non-criminal conduct. Defendants should always bear in mind that their personal freedom, reputation, and social environment are at stake with such an accusation. At the same time, legal representation is mandatory for such an offense in court, which is why a defense attorney will be appointed for you at the latest during court proceedings. Therefore, increase your chances of a favorable outcome even earlier and involve the attorney of your trust as early as possible.
You can reach us during our office hours at the contact details provided and additionally around the clock via our emergency number:
If an accusation is made against you, do not hesitate and arrange a non-binding initial consultation. Together, we will develop an effective defense strategy and achieve the best result for your individual case!
