Sexual violence against children online

Input from the Swiss Foundation for the Protection of Children for the Gen-
eral Comment on children's rights in relation to the digital environment

1. Introduction

The United Nations Committee on the Rights of the Child has decided to draft a Gen-
eral Comment on children's rights in relation to the digital environment. The Swiss
Foundation for the Protection of Children welcomes the opportunity to provide input.

The Swiss Foundation for the Protection of Children is a national foundation that calls
for all children in our society to be allowed to grow up with dignity and without viola-
tion of their integrity. The Swiss Foundation for the Protection of Children has spent
many years successfully fighting for the rights of children and against all forms of viol-
ence against children. The Swiss Foundation for the Protection of Children runs the
organisation ECPAT Switzerland against child prostitution, child sexual abuse mater-
ial (child pornography) and child trafficking. The Swiss Foundation for the Protection
of Children is a non-profit organisation that bases its activities on recognised legal and
scientific foundations, in particular the United Nations Convention on the Rights of
the Child.

The Swiss Foundation for the Protection of Children applauds the Committee on the
Rights of the Child's suggestion of protection from violence and sexual exploita-
tion as one of the topics for the General Comment. As the Swiss Foundation for the
Protection of Children primarily advocates for the prevention of sexual violence
against children, it shall concentrate on this aspect in its submission. The Swiss
Foundation for the Protection of Children therefore draws upon Article 34 of the
United Nations Convention on the Rights of the Child. The Convention's contracting
states shall undertake to protect children from all forms of sexual exploitation and
sexual abuse, including digital forms.
2. Online or off, sexual violence is always real

Many children today grow up in a digital environment. In countries like Switzerland,

the digital world permeates all areas of children's lives. 99% of young people between
the ages of 12 and 19 have a smartphone.1 86% of children between the ages of 6 and
13 use the internet at least occasionally.2 Children and teens use digital media to
watch films, communicate over social networks, play games, share photos, get help
with their homework, etc. While the use of digital media affords many positive experi-
ences to children and teens, it also comes with risks. 3 This is because sexual violence
against children is increasingly being practised online. A significant increase in online
grooming has been found in recent years: 4 more than 30% of adolescents have been
approached online by a stranger with unwanted sexual intent. 5 There has also been an
increase in the distribution of child sexual abuse material. The FBI reported around
9,000 cases of child sexual abuse material to Switzerland in 2018.6
Sexual violence against a child is always real – whether online or offline – and has dev-
astating effects. Victims of sexual violence online, however, are often doubly dam-
aged: first when they experience the abuse, and then when images of the abuse are
distributed over the internet. The Swiss Foundation for the Protection of Children
therefore calls for sexual violence against children online to be treated just as seri-
ously as any other form of child abuse.

The Swiss Foundation for the Protection of Children thus categorically recommends
the following:

1
Suter, L., Waller, G., Bernath, J., Külling , C., Willemse, I. & Süss, D. (2018). JAMES - Jeunes, activités, médias –
enquête Suisse. Zürich: Haute école des sciences appliquées de Zurich p. 64 (cited in: JAMES 2018): available at
https://www.zhaw.ch/en/psychology/research/media-psychology/media-use/james/
2
Genner, S., Suter, L., Waller, G., Schoch, P., Willemse, I. & Süss, D. (2017). MIKE – Medien, Interaktion, Kinder,
Eltern: Ergebnisbericht zur MIKE-Studie 2017. Zürich: Zürcher Hochschule für Angewandte Wissenschaften, p. 28
(cited in: MIKE 2017): available at https://www.zhaw.ch/en/psychology/research/media-psychology/media-use/
mike/#c123357
3
JAMES 2018, p. 40
4
Willemse, I., Waller, G., Genner, S., Suter L., Oppliger S., Huber, A.-L.& Süss, D. (2014). JAMES - Jugend,
Aktivitäten, Medien - Erhebung Schweiz. Zürich: Zürcher Hochschule für Angewandte Wissenschaften: In 2014,
only one in five adolescents stated that they had experienced online grooming, p. 37
5
JAMES 2018, p. 53
6
NZZ am Sonntag from 12.01.2019: Das FBI stösst auf 9000 Fälle von Kinderpornografie aus der Schweiz

Page 2/7
 Sexual violence against children online must be regarded as seriously
as sexual violence against children offline and be correspondingly dealt
with through the courts, the police, legislative authorities, society, etc.
This equal treatment must therefore be reflected in all relevant legal
bases. To this end, penalties must be harmonised, and the effective pro-
secution of internet crimes and the necessary resources ensured.

This recommendation applies for all manifestations of sexual violence online. Sub-
sequently, two of its virulent forms – child sexual abuse material and online grooming
– will be discussed in depth.

2.1. Child sexual abuse material (child pornography)

The term "child pornography" is used colloquially and in various international and
national legal instruments. This term, however, is inexact and trivialising. Porno-
graphic images with children are always images of child sexual abuse and have noth-
ing to do with consensual, adult pornography. Pornographic images with children are
never legal. The Swiss Foundation for the Protection of Children therefore prefers the
term "child sexual abuse material" in order to express in words that each of these im-
ages represents a crime.

In Switzerland, adults involved in illicit pornography, including child sexual abuse ma-
terial, face up to five years of prison time (Art. 197 of the Swiss Criminal Code (SCC)).
Suspected cases of child sexual abuse material have increased significantly in recent
years. In 2017, in addition to the 9,000 cases reported by the FBI, the Swiss Federal
Office of Police (fedpol) itself investigated 1,000 cases. 7 Despite these high numbers,
there are relatively few convictions. In 2017, only 580 adult individuals were con-
victed for images of child abuse and other illicit pornography.8
During the same period, 227 minors were convicted of illicit pornography charges. 9
This shows that children and adolescents may not only be victims, but also perpetrat-
ors. Every child may be liable for prosecution from the production, distribution or con-
sumption of illegal pornography. Children are equally liable if they distribute other-

7
Ibid
8
Conviction statistics for 2017 at https://www.bfs.admin.ch/bfs/de/home/statistiken/kriminalitaet-strafrecht/
strafjustiz.assetdetail.5450153.html
9
Ibid

Page 3/7
wise permissible pornography to other children under the age of 16, for example by
sharing such content in WhatsApp chats.
For certain behaviours, Swiss law recognises two age categories with regard to crim-
inal liability: one for children under the age of 16 and one for adolescents over 16.
Adolescents over 16 thus go unpunished if they produce, possess or consume mutually
consensual pornography (Art. 197 VIII SCC). Children under 16, however, who record
themselves in sexual acts and thus produce illegal child sexual abuse material, are
criminally liable.

Three alarming developments regarding child sexual abuse material must be ob-
served:
1. While international reports regarding child sexual abuse materials have greatly
increased in recent years, the number of adult convictions remains relatively
low.
2. The majority of reports come from foreign authorities.
3. Minors are increasingly convicted on charges of illicit pornography.

The Swiss Foundation for the Protection of Children therefore recommends the follow-
ing:

(1) Cases of child sexual abuse material must be consistently

treated as cases of real child abuse. If necessary, the law must
be adapted accordingly. Perpetrators of internet crimes must
be charged and punished accordingly. This requires the cre-
ation of an adequate number of reporting points, working
closely together with law enforcement.
(2) Authorities worldwide must be given resources (particularly
with regard to technology, legal, financial and political sup-
port and human resources, including for undercover investig-
ations) in order to uncover more cases involving child sexual
abuse material. Technologies for the prevention, detection,
blocking and deletion of images of child abuse must be con-
sistently applied. Private internet providers must do their part
in the fight against child sexual abuse material.
(3) Preventive measures shall be systematically carried out that
prevent children from becoming offenders themselves.

Page 4/7
 2.2. Online grooming and online sexual harassment

Online grooming is defined as targeted and sexually oriented contact with children
online by adults. Online grooming can be viewed in a narrower and broader sense.
Online grooming in the narrower sense is described in Art. 24 of the Council of
Europe Convention on Protection of Children against Sexual Exploitation and Sexual
Abuse (Lanzarote Convention): An adult, communicating with a child online, suggests
a meeting and carries out specific preparations in order to commit sexual acts with
the child or commit a criminal sexual offence. In Switzerland, such an act is punish-
able as an attempt to plan for sexual acts with children (Art. 187 I subsection 1 SCC)
or for the production of illicit pornography (Art. 197 III SCC).10

Online grooming in the broader sense, namely sexually-motivated online chat activity
by an adult with a child, is not explicitly a criminal act in Switzerland according to
prevailing legal doctrine.11 Political initiatives to make online grooming in the broader
sense punishable as a crime are regularly rejected. 12 This despite the Swiss Federal
Council, in its dispatch for the ratification of the Lanzarote Convention, noting that
chat forums (including gamers' forums) are frequently misused for online grooming in
the broader sense.13 According to the new study JAMES 2018, 30% of adolescents in
Switzerland have been approached online by a stranger with unwanted sexual intent. 14
A legal gap therefore exists in the Criminal Code that should be closed through revi-
sion to Art. 198 SCC (sexual harassment). Verbal sexual harassment in real life is
already a crime. This new revision would also make online sexual harassment (i.e. on-
line grooming in the broader sense) an explicit crime. In addition, sexual harassment
of children was to date only punishable when a complaint was filed. Children, how-
ever, cannot be expected to file criminal charges themselves. This high hurdle is also
reflected in the low numbers of charges. In 2018, fedpol recorded only three reported
cases of online grooming.15 The Swiss Foundation for the Protection of Children is

10
Dispatch on the ratification of the Lanzarote Convention and its implementation (Change to the Swiss Criminal
Code) from 04 July 2012, Federal Gazette 2011 1556, p. 7626
11
Maier, Basler Kommentar zum StGB, prec. Art. 187 N 10d and Isenring, Basler Kommentar zum StGB, Art. 198 N 24
12
For example, Motion 12.3476 or Parliamentary Initiative 13.442. Parliamentary Initiative 18.434 is currently
pending.
13
Federal Gazette 2011 1556, p. 7626.
14
JAMES 2018, p. 53

Page 5/7
therefore of the opinion that sexual harassment of minors should be a prosecutable
offence.16

The Swiss Foundation for the Protection of Children therefore recommends the follow-
ing:

Sexual harassment online should be classified and punished as a manifest-

ation of online grooming. All manifestations of grooming should be pun-
ishable by law. Law enforcement should be provided with adequate means
to combat online grooming (including the legal bases for undercover in-
vestigations in particular). The states must ensure that children are made
aware of the concept of online grooming through preventive measures.

3. Prevention of sexual violence against children online

Combating sexual violence against children online must not be limited only to the
passing of pertinent statutory provisions and criminal prosecution. Comprehensive
preventive programmes and structures are necessary so that sexual violence against
children online can be fought early, before it progresses to a criminal act. In this con-
text, The Swiss Foundation for the Protection of Children calls for efforts in the area
of prevention to be strengthened at all levels throughout Switzerland and for corres-
ponding resources to be made available. Chapter 2 of the Lanzarote Convention sets
forth that the states shall establish necessary legislation or other measures in order to
prevent all forms – including digital forms – of sexual exploitation and sexual abuse of
children.

15
Fedpol: Statistiken zum Jahresbericht 2018, available at:
https://www.fedpol.admin.ch/dam/data/fedpol/publiservice/publikationen/berichte/jabe/jabe-2018-stat-d.pdf
16
Fontanive, Simmler. Gefahr im Netz: Die unzeitgemässe Erfassung des Cybergroomings und des Cyberharass-
ments im schweizerischen Sexualstrafrecht – Zur Notwendigkeit der Modernisierung von Art. 198 StGB, in ZSR I
2016, p. 510 ff.

Page 6/7
The Swiss Foundation for the Protection of Children therefore recommends the follow-
ing:

Government agencies shall support – strongly, systematically and with

appropriate resources – the prevention of sexual violence against chil-
dren online.17 The general public shall be made aware of the topic. Par-
ents, educators and others in supervisory capacities shall be systemat-
ically informed and trained. Children's knowledge in matters pertaining
to digital media and sex shall be broadened, particularly in how to
handle personal data and photos. Offender prevention programmes
shall be expanded so that all persons with paedophile tendencies have a
place to go for help, and crimes may be prevented.18 Private stakehold-
ers, for example internet providers, shall also be involved in preventive
efforts. The establishment of reporting points for child sexual abuse
material, cooperation with the police and the use of filters can be ef-
fective measures in preventing sexual violence against children on-
line.19

17
See Jugend und Medien, ein Präventionsprogramm des Bundes: https://www.jeunesetmedias.ch/fr.html
18
Postulate, Jositsch, 16.3644: Preventive project "Kein Täter werden" for Switzerland available at
https://www.parlament.ch/fr/ratsbetrieb/suche-curia-vista/geschaeft?AffairId=20163644. The Postulate was re-
ceived, a report thereof is being developed.
19
The Swiss Parliament recently revised the Telecommunications Act SR 784.10, stipulating the cooperation of
telecommunications providers with reporting points and law enforcement to combat child sexual abuse material.
The changes are expected to enter into force on 1 January 2020. Information on the final vote can be found at:
https://www.parlament.ch/centers/eparl/curia/2017/20170058/Schlussabstimmungstext%201%20NS%20D.pdf

Page 7/7