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When it comes to criminal defense in cases involving child and youth pornography (Sections 184b, 184c of the German Criminal Code), I distinguish between two fundamentally different scenarios, both of which are common but present very different challenges. One scenario is the following:
- criminal defense in cases involving child and youth pornography (Sections 184b, 184c of the German Criminal Code (StGB)) in court where the evidence is relatively clear,
the other scenario is the
- criminal defense in cases of child and adolescent pornography (Sections 184b, 184c of the German Criminal Code) during a prosecutor’s preliminary investigation where the evidence is unclear.
I’ll start here with the scenario involving relatively clear evidence, because clients—when they fear that the evidence is clear following a home search—often have the most pressing questions and want to know what they’re facing. First and foremost is the question of what penalty they face and whether a prison sentence for the charge of possession of child pornography (Section 184b of the German Criminal Code) will be suspended on probation or whether they will have to go to prison.
Penalties for the possession and distribution of child and adolescent pornography (Sections 184b, 184c of the German Criminal Code). - The law imposes fines and prison sentences for the possession and distribution of child and adolescent pornography (for details, see §§ 184b, 184c StGB). In practice, preliminary investigations into this charge take a very long time, which is due to the time-consuming analysis of seized data storage devices. Ultimately, the “worst-case scenario” for a “first-time offender”—provided they mount a reasonable defense—is a court conviction resulting in a prison sentence that is suspended under § 56 of the German Criminal Code (StGB).
- Criminal defense in cases of child and adolescent pornography (§§ 184b, 184c StGB) – in court when the evidence is clear
Most prosecutorial investigations begin for the accused with a search of their residence and the seizure of all data storage devices found there. The course of the proceedings depends on whether child and/or adolescent pornography is found during the analysis of these data storage devices. If nothing is found during the analysis of the seized data storage devices, the prosecutor’s investigation is discontinued. If, during the analysis of the seized data storage devices, child and/or adolescent pornography files are found—and the accused cannot deny having possessed them intentionally—this leads to an indictment in the local court. The court proceedings there typically result in a conviction and, in the “worst-case scenario” for a “first-time offender” with a compelling defense, a prison sentence that is suspended on probation pursuant to § 56 of the German Criminal Code (StGB).
Suspended sentence for possession of child pornography (Section 184b of the German Criminal Code (StGB))
The fact that a suspended sentence is routinely imposed in court for the possession and distribution of child and adolescent pornography (Sections 184b, 184c of the German Criminal Code [StGB]) applies, in any case, to “first-time offenders” who have not yet been convicted of a similar offense. In recent years, I have defended defendants in court in over 300 cases under Sections 184b and 184c of the German Criminal Code (StGB), and I have never had a case involving a first-time offender where the sentence was not suspended. This has been the case throughout Germany, and even when a very large number of “incriminating” files are found, a suspended sentence is always granted. I am saying this to counter the recurring nightmare scenario that one will be taken into pretrial detention after a home search and sent to “prison” after conviction. Neither of these things happens in practice.
When is a suspended sentence granted for possession of child pornography?
In Germany, as a “first-time offender” convicted of possessing or distributing child pornography under Section 184b of the German Criminal Code (StGB) or youth pornography under Section 184c StGB, you will receive a suspended sentence under Section 56 StGB if the court imposes a prison sentence and certain statutory requirements for the suspended sentence are met
- namely, the prison sentence may not exceed a total of two years (Section 56(2) of the German Criminal Code [StGB]), which is generally not the case under Section 184b StGB,
- and the court must arrive at a favorable social prognosis—that is, it must expect that the convicted person will take the conviction as a warning and will not commit any further crimes in the future.
What does a suspended prison sentence mean?
A suspended prison sentence means that although the court sentences the defendant to a prison term, the sentence is not yet enforced. Specifically, this means that the convicted person does not have to go to prison but must prove themselves during a certain period set by the court—in practice, usually three years. At the same time, the court may impose conditions and instructions for the probation period, such as the payment of a fine or cooperation with a probation officer. If the convicted person fulfills all conditions and instructions and does not commit any new crimes during the probation period, the court will dismiss the sentence at the end of the probation period. The convicted person will then no longer have to go to prison. If, however, further crimes are committed during the probation period or the conditions and instructions are violated, probation may be revoked. In such cases, the prison sentence will then actually be enforced.
It can be noted that, in judicial practice, the possession and distribution of child and youth pornography (Sections 184b, 184c of the German Criminal Code (StGB)) typically result in a prison sentence for a “first-time offender,” which is suspended under Section 56 of the German Criminal Code (StGB).
Self-Control Training for Defendants Charged with Child Pornography
Anyone charged with possession or distribution of child pornography under § 184b StGB can do a great deal to help the court determine the appropriate sentence and arrive at a favorable social prognosis. For years, I have recommended self-control training for consumers of child pornography, which should be completed before a court hearing. To this end, I refer my clients to appropriate therapy centers. I then prepare my clients for the court hearing. Before a court hearing, you need to know what to expect and what is expected of you. You must be prepared.
The indictment is based on an analysis report that summarizes which files were found on the storage media. If you cannot successfully refute the allegation of knowing possession of the files found, you must expect a conviction. There are now so many similar cases that almost all criminal judges have become accustomed to handling them. If you are well prepared, court hearings usually last no longer than an hour. This can vary by region; in southern Germany, hearings typically take longer. But even there, defendants charged with child pornography are typically granted a suspended sentence.
2. Defense in Cases of Child and Adolescent Pornography (Sections 184b, 184c of the German Criminal Code (StGB)) – During the Prosecutor’s Preliminary Investigation When the Evidence Is Unclear
The District Court of Bocholt has cleared up with older decisions, which in Germany until recently undifferentiatedly assumed that the user is always aware of the data storage in the cache. And that determined the criminal liability for child pornography according to § 184b StGB or youth pornography according to § 184c StGB. However, the District Court of Bocholt says, such court decisions are now obsolete due to technical developments. In case of doubt, the average user doesn`t know that even when viewing images, data is quickly stored in the so-called cache.
child pornography (§ 184b StGB) and youth pornography (§ 184c StGB)
In its helpful decision, the District Court of Bocholt (decision from 23.3.2017 - 3 Ds 540 Js 100/16 - 581/16) slowed down the investigators and first of all reminded them that a punishment for the possession of youth pornographic images (§ 184c StGB) is only possible if the youthful age of the person depicted is actually known. Otherwise, the picture would have to appear so childlike that it almost comes close to the possession of child pornographic images (§ 184c StGB). One thing is quite clear: it is not possible to distinguish between a 16-year-old youth and an 18-year-old young woman on the basis of visual impression alone. The German Federal Constitutional Court has already stated earlier that it is not possible to differentiate between a 16- or 17-year-old or an 18-year-old person with sufficient reliability on the basis of physical characteristics or by analysing facial features (see BVerfG, B. v. 6.12.2008 - 2 BVR 2369,2380/08).
And then the question has not yet been answered as to whether someone really acted intentionally when storing data, which is always a prerequisite for punishability with § 184b StGB (child pornography) or § 184c StGB (youth pornography). And it is also necessary to check beforehand whether even the pssession of data is doubtful. Prior to the opening of a main proceeding, the District Court of Bocholt went to work thoroughly and got rid of the prejudice that it can be assumed that the average user is familiar with the existence of data storage in the cache and knows how this data can be deleted.
"possession" of child pornography is punishable according to §§ 184b, 184c StGB
"Possession" is also punishable by law. In our practice we have many cases in which it is doubtful from the outset whether the defendant actually possessed the pictures, even if the photos were actually found on his computer. Section 184b StGB (German Criminal Code) requires an actual relationship of control over the images. Did the accused person have the opportunity to make the pictures available to himself, if he did not even know that and how he could access them? For this reason, the path-description of the respective photos must always be examined more closely. Storing must be done intentionally and if the accused did not know that the images are stored in the cache, then the criminal liability under § 184b StGB (child pornography) or § 184c StGB (youth pornography) will commence at the earliest as soon as the accused person recognizes or has accepted that he possesses child pornography and nevertheless continues to possess it.
German Criminal Code differentiates between the distribution of child pornography and the possession of child pornography in terms of penalties.
The accusation of child pornography in accordance with § 184b of the Criminal Code is usually very stressful for those affected. It doesn't really take any more punishment. We also have strategies for the event that a conviction is to be expected. Negotiations with the public prosecutor's office, therapy offers or donations to charitable institutions can work wonders.
Please do not give any information to the law enforcement authorities without consulting your lawyer. As a rule, they can only prove at the beginning of an investigation that child pornographic material has been obtained via a certain Internet connection. Proof of who is ultimately responsible for the acquisition of child pornography in accordance with § 184b StGB is not provided until you have expressed your statement. If other persons, such as spouses or partners, should be in the apartment at the time of the search, they should also not provide any information.