Qualification of child sexting, sextorsion and online grooming

Abstract

          Some characteristics of actus reus of Art. 3011 and of Art. 1561 of  the Criminal Code of Ukraine are analyzed. The characteristics of sexting and sextorsion, the subject matter of which is child pornography, and online grooming are revealed. If the participant in the child sexting is an adult who received from the child through a means of communication its image in a sexually explicit manner, his actions must be assessed as the production of child pornography (part 3 of Art. 3011 of  the Criminal Code) and its storage (part 1 or 2 of Art. 3011 of  the Criminal Code depending on the absence or presence of the purpose of selling or distribution). In this case, the adult participant in the sexting uses a child who photographs or shoots himself in a sexually explicit manner as a «tool» for the production of child pornography. If the participant in the child sexting is a minor (who has reached the age of 16), the responsibility for such acts arises only if he has the purpose of selling or distribution child pornography. If an adult participant in sexting has the purpose to obtain an image of a child in a sexually explicit manner and then threatens to sell or distribute it in order to obtain new such images, then there is a sextorsion that should be qualified as the production of child pornography (part 3 of Art. 3011 of  the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of  the Criminal Code) and forcing a minor under-18s or under-14s to participate in the creation of child pornography (part 3 or 4 of Art. 3011 of  the Criminal Code). If the purpose of the sextorsion is to meet with the child online or in real life to commit any sexual or lewd acts with him or to involve the child in the production of child pornography, such sextorsion should be qualified as the production of child pornography (part 3 of Art. 3011 of  the Criminal Code), the storage of child pornography with the purpose of selling or distribution (part 2 of Art. 3011 of  the Criminal Code) and depending on the stage of the sextorsion: or as preparation for harassment of a child for sexual purposes, or as an attempt to commit a criminal offense, or as a completed harassment (Art. 1561 of the Criminal Code). Building a trusting relationship by adult with a child on the Internet for a future meeting with the purpose to committing any sexual or lewd acts against him or involving him in the production of child pornography constitutes online grooming and should qualify as preparation for harassment of a child for sexual purposes.          Key words: child pornography, sexting, sextorsion, online grooming.