European societies have become increasingly dependent on electronic networks. Nevertheless, the evolution of information communication technology has also lead to the development of criminal activity that is committed online, referred to as ‘cybercrime’. This may entail that the criminal offence has a cross-border effect, which requires transnational protection as well as cooperation and coordination with counterparts in other states.
With the emergence of ICTs (Information and Communication Technologies), it has become common to communicate in real-time with others across the world. Nowadays, people are provided with a vast array of communications means, such as instant messages, video-conferences and social networks to name a few. This is very practical in order to allow worldwide users to remain virtually in contact with other people on a regular basis, even at a long distance.
Recent studies have revealed an increase in complaints of sexual solicitation and exploitations of minors through the Internet (Online Grooming y Explotación Sexual de Menores a Través de Internet, De Santisteban & Gámez-Guadix, 2017). This phenomenon is also known as ‘online grooming’, by which ‘an adult, using the means offered by ICTs, enters into the dynamic of persuading and victimizing a child sexually, both physically and through the Internet, by performance or obtaining sexual material from the minor (Online Child Sexual Exploitation: Prevalence, Process, and Offender Characteristics, Kloess et al., 2014). In those cases, the perpetrator of online grooming, uses Internet as a facilitator environment, which enables him to interact with children, as it is easy for the former to hide his or her identity. The cyberspace research unit at the University of Central Lancashire has made a report in which it identified the following 5-stage process used by paedophiles when committing online grooming:
Flattering a child into talking in a private chatroom where they will be isolated. The child will often be asked for a non-sexual picture of themselves.
2. Forming a relationship
Asking the child what problems they have to create the illusion of being their best friend.
3. Risk assessment
Asking the child about the location of their computer and who else has access to it in order to assess the risk of being detected.
Building up a sense of mutual love and trust with the child, suggesting that they can discuss “anything”.
5. Sex talk
Engaging the child in explicit conversations and requesting sexually explicit pictures from them. At this stage the paedophile will usually try to arrange a meeting with the child.
In order to address the problem, the Council of Europe has taken a major step forward in the prevention and the combatting of sexual offences against children. The Convention on Protection of Children against Sexual Exploitation and Sexual Abuse, also known as the ‘Lanzarote Convention’, requires criminalisation of all kinds of sexual offences against children by imposing an obligation on each Party to take ‘the necessary legislative or other measures to prevent all forms of sexual exploitations and sexual abuse of children and to protect children’. With respect to criminalisation of sexual abuse of children in the circle of trust, the Convention provides a broad definition of offence, given that abuse is made of a “recognised position of trust, authority or influence” by the perpetrator over the victim but it also extends to the family. The protection of children is at the heart of this Convention.
Moreover, it has set up a specific monitoring mechanism in order to ensure effective implementation of its provisions by the parties. According to the last report of the Lanzarote Committee, States Parties to the Convention are undertaking effective steps in the implementation of the instrument. It however also highlights that not enough is done by the Parties to regularly raise children’s awareness, in a manner adapted to their age and maturity, with a specific focus on the fact that sexual abuse may also happen within the family or through manipulation of children’s trust by persons close to them.
As a Member State of the EU, Spain has transposed Directive 2011/93 on combating sexual abuse, sexual exploitation and child pornography. The Directive is a comprehensive legal instrument, which contains provisions on substantive criminal law and criminal procedure. Article 6 of the Directive explicitly criminalises the solicitation of children for sexual purposes by means of information and communication technology. However, in its report on the implementation of Directive 2011/93, the Commission overall concluded that ‘despite the Members States’ major efforts to transpose this complex legal instrument and the improvement that this process brought with regard to the protection of children from sexual abuse, there is still considerable scope for the Directive to reach its full potential’.
In addition, Spain has introduced an express provision on online grooming in its Criminal Code, referred to as the ‘Ley 5/2010’, in order to combat this new type of child abuse. The content of Article 183 bis of the Spanish Criminal Code which implements Article 23 of the Lanzarote Convention reads as follows:
‘Whoever uses the internet, telephone, or any other information and communication technology to contact a person under the age of 13 years and proposes to meet that person in order to commit any of the offences described in Arts. 178 to 183 and 189, as long as such a solicitation is accompanied by material acts aimed at such an approach, shall be punished with the penalty of one to three years of imprisonment or a fine of twelve to twenty-four months, without prejudice to the relevant penalties for the offences actually committed. The penalties shall be imposed in the upper half when the approach is obtained by coercion, intimidation or deceit.’
Online grooming is a crime which mainly targets children or young vulnerable people. Sexual abuse and sexual exploitation of children constitute serious violations of fundamental rights, in particular of the rights of the children. The protection of those victims deserves attention and is therefore at the centre of various instruments, both at European and international level. Despite the setting up of those instruments and the major efforts of the states to implement those policies, shortcomings remain and more action is still needed in this field. Online grooming is a complex crime, which may become international for which transnational cooperation is needed.
Article written by Alicia Hendricks
Piñera del Olmo Law Firm – Lawyers in Spain