§ 184b Child Pornography
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich
Specialist Lawyer for Criminal Law Munich

Possession of child pornography is punishable by imprisonment of three months to five years

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Since June 28, 2024, the long-awaited, important and correct amendment to the “child pornography paragraph” has finally come into force, § 184b StGB. The minimum sentence for distributing child pornography has now been reduced from one year to six months and for mere possession to three months imprisonment.

The legal situation was previously intolerable, as possession of a single child pornography image was a crime punishable by a minimum prison sentence of one year. In any case, a suspended sentence was mandatory, a dismissal due to triviality was not possible, and a main hearing was required. A criminal record was inevitable. This led, among other things, to officials losing their jobs because of a single image.

The changed legal situation has contributed to a significant easing of the situation: it is now possible to dismiss proceedings due to triviality or in return for a fine, as was the case before the law was changed, a main hearing is no longer mandatory (possibility of a so-called penal order), charges can be brought before a criminal judge (one judge) instead of a lay judge’s court (three judges), and an entry in the criminal record is not mandatory.

The reduction in the range of sentences opens up considerable scope for defense options and leads to lower penalties overall.

Important: The new, more lenient legal situation is to be applied to all pending, non-legally binding proceedings from the day it comes into force!

Complex problems require special expertise

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Criminal allegations, especially in the area of ​​youth and child pornography, are unfortunately accompanied by a high level of emotionalisation and therefore also lead to cases not always being handled fairly and neutrally by the judiciary – not least due to the constantly growing socio-political Pressure to prosecute.

For this reason alone, a promising defense in the case of accusations of possession or distribution of prohibited pornographic material requires experienced specialists on the part of the lawyer. But due to the complex interdisciplinary requirements, adequate representation is hardly possible without in-depth forensic experience, especially in forensic IT, and only with contemporary expertise can the numerous legal problems in the legal assessment of the underlying technical processes be correctly classified (and in accordance with the higher court jurisprudence).

The criminal offenses relating to prohibited pornography are also legally complex. In addition, the highly emotional social climate leads in practice to strict punishment for the accusation of child pornography. The social pressure and the explosive nature of the topic cause judges to impose harsher sanctions here in cases of doubt than for crimes with a comparable level of injustice from other crime groups, e.g. violent and property crimes.
However, with experienced legal support, it is often possible to have the case stopped, to prevent a main hearing or to obtain a suspended sentence and thus avoid a so-called prison sentence – i.e. an actual prison sentence.

Possession of child pornography, § 184b para. 3 StGB

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Not only the police, but also many public prosecutors and judges are often not aware of aware that the mere discovery of so-called “incriminated files” does not necessarily mean that the computer owner has committed a criminal offense.

Only those who meet all the requirements of the offense are guilty of a criminal offense:

“Pornographic writing” means all possible ways of depicting pornography. The term “writing” is therefore completely the same for audio and video media, data storage devices, images, films and other means of depiction. It is not just pornographic magazines that are punishable in the sense of pornographic writing, but also images and videos on hard drives, USB sticks, CDs/DVDs, I-Clouds and other data storage devices, provided that they depict children or young people.

However, there is always a great deal of disagreement about exactly when a writing should be classified as “pornographic.” According to the common definition, a writing is pornographic if it depicts sexual acts whose overall tendency is aimed exclusively or predominantly at the lascivious interest of the viewer. In particular, an objective overall assessment must show that the depiction is aimed exclusively or predominantly at arousing sexual stimulation.

Pure nude photographs and other simple depictions that only show children’s bodies are therefore not pornography and their possession or acquisition is not punishable.

Example: Photos taken by parents of their children playing naked on the beach are still not punishable. The same even applies to photos of naked children in the swimming pool taken secretly by unauthorized third parties! The production and (especially paid) distribution of such images can, however, be punishable as an infringement of the most personal sphere of life through image recordings in accordance with Section 201a of the German Criminal Code.

Medical images that, from an objective point of view, do not serve to sexually arouse a neutral observer are also not punishable; the same applies to artistic depictions such as Michelangelo’s frescoes of naked children in the Sistine Chapel in Rome and in other churches; keyword: artistic freedom!

In practice in German courts, however, the above-mentioned boundaries are often blurred. All images found on the accused that show naked children are quickly classified as punishable child pornography; a precise assessment by the lawyer is all the more important here.

Another requirement for criminal liability is that the pornographic text must also show a sexual act by children or be so-called posing depictions. The texts do not have to be about the sexual abuse of children. Rather, any sexual act or sexually provocative depiction in relation to the child is sufficient.

This includes both sexual acts on the child (= sexual physical contact) and sexual acts in front of the child (= which are perceived as such by the child), as well as sexual acts by children (= acts by the child without the involvement of others) or sexually provocative depictions of the child (= posing).

Touching the child by other people is therefore not necessary! Therefore, all forms of sexual acts on children or by children on adults or other children fall under the term, as do all sexual acts by children on themselves and clear depictions of the child and its sexual organs.

Depictions of masturbation, the active adoption of unnatural erotic body positions (e.g. when a child spreads its legs) and the focused depiction of the genitals or buttocks (so-called posing) are also punishable. Since 2015, it has also been expressly punishable if the image only shows genitals or buttocks, but the child is not actively posing (even if no action by the child can be attributed). Since the tightening of the law that came into force in 2015, criminal liability no longer depends on whether the child actively contributes to the recordings or not. Therefore, documents that show the reproduction of a fully or partially naked child in an unnatural sexually suggestive posture are now also punishable, as is the sexually provocative reproduction of the bare genitals or bare buttocks of a child.

Such a broad interpretation of “sexual acts” seems rather questionable when taking into account the idea of ​​protection, since such nude images are socially disapproved of, but do not depict actual abuse of a child, but “only” display nudity without authorization. At least in the case of simple nude photographs in a natural body position (sleeping, bathing, on a nudist beach, etc.), there will be no sexual act by the child.

As long as no unnatural postures or a focus on the buttocks or sexual characteristics are shown, such images are generally not punishable. It is particularly controversial whether photographs of sleeping children can be assumed to be in an unnatural, gender-related posture. In principle, a posture adopted while sleeping is natural per se. However, courts usually see things differently and only consider whether it initially looks like an unnatural, gender-related posture to the viewer. In other borderline cases, too, the investigating authorities often hastily confirm the existence of child pornography. As an accused person, you have little opportunity to defend yourself against this – simply because you do not have access to the case files. A lawyer is therefore strongly recommended.

Nudity was and is not a mandatory requirement if the type of design (e.g. the type of poses combined with, for example, provocative clothing and provocative accessories) clearly expresses the unnatural gender-relatedness and pornographic nature.

Child pornography must necessarily have a child as the subject of the document. From a legal perspective, children are all people under the age of 14. The decisive factor is the age at the time the child pornography was produced. The crime is not eliminated if the act took place in a country with different age limits.

This means that documents showing people over the age of 14 are not punishable as child pornography, but may “only” be punishable as youth pornography. However, it is punishable if a person looks 15 but is actually 13 years old. The person is still a child, regardless of whether they look older. However, the intent required for criminal liability may then be omitted; more on this below.

However, age information, appearance and actual age can differ considerably in pornographic documents. In order to avoid the associated abuse and legal loopholes, the courts do not necessarily look at the actual age of the child, but rather whether the person shown would be classified as a child by an objective, conscientious observer.

This means that a person is a child within the meaning of the law even if the identity of the person and thus their age cannot be determined, but they clearly look like a child. As a result, young people who are actually older than 14 years old but who look like a child under 14 to a reasonable observer are also considered children in the sense of the law, so-called “fake children”. However, criminal liability does not apply if the perpetrator knew the real age of the “fake child” for sure – which will of course not be the case with downloads from the Internet.

It is therefore also a criminal offence if it turns out that the person depicted is actually 15 years old but looks 13 years old – and even if it is not even a real person but a realistic computer graphic. This legal situation can hardly be justified by the protection of children, and even less so the criminal liability of fictional but realistic depictions, e.g. in virtual worlds.

However, acts that refer to pornographic writings with obviously older actors, for which an easily understandable backdrop is created using only accessories (children’s clothing, toys) or with clearly counterfactual age information, are not punishable. It is therefore not punishable (as child pornography) if a person over 14 years of age is portrayed in a childlike manner (e.g. with pigtails and children’s clothing) so that they appear childlike, but an objective observer would still classify their actual age as over 14 years. However, criminal liability for child pornography may be applicable.

The sexual act or equivalent depictions must be an actual or realistic event.

An actual event occurs when the sexual act recorded in the film or photo took place as depicted. In the case of fictional sexual acts, i.e. those that did not actually take place but appear realistic, it depends on whether the writing looks like the documentation of a real sexual act from the perspective of an average, non-expert observer. This is ultimately intended to eliminate problems of proof if an accused states that the acts were staged without children actually being involved in sexual acts, or – as already shown above – that the actors were acting out their childlike appearance and did not correspond to their real age.

It is therefore not a criminal offence to possess or acquire depictions in which the fictional nature is obvious simply because of the form of depiction, i.e. texts, drawings, cartoons – even lifelike ones – and computer games. In practice, the most common case is so-called “mangas”. It is also not a criminal offence to possess or acquire images that are photorealistic in their visual presentation, but which reveal through the nature of what is shown that computer animation was used, e.g. if the actors are designed as human-like “aliens” or contain other unreal elements, or if they are clearly recognizable as a computer game.

On the other hand, it is a criminal offence to acquire and possess realistic images that look like realistic film and photo recordings, e.g. due to clever camera and editing techniques or the post-processing of photographically produced material, even if they are not based on real actors.

But be careful: This only applies to the acquisition and possession of child pornography! It is different if the material is produced or distributed! Then the criminal liability also applies, for example, to comics, cartoons or other animations that are clearly not based on reality (although “only” with a minimum sentence of three months).

Accessing, acquiring (so-called obtaining) or possessing child pornography is punishable.

According to the law, the usual case is obtaining, i.e. acquiring child pornography, as this includes the prior access and subsequent possession (inevitably and regularly). In practice, however, the catch-all offense of possession is charged much more frequently than acquisition, as proving the acquisition process is often difficult; more on this below. Possession, on the other hand, can (supposedly) be proven more easily, namely with the mere discovery of child pornography.

The offence of purchasing child pornography covers any purchase of child pornographic material that involves possession. In order to be punishable, the offender must have actual control over the child pornographic material. The purchase of child pornography is therefore punishable as soon as the material is in the control of a person and the owner is therefore free to use, access or delete the image or other representation at any time and as often as desired.

In internet traffic, this is undoubtedly the case if the child pornographic image files are stored on one’s own data storage devices. However, an action that is targeted at establishing possession – i.e. deliberate – is required. This is not the case if images are downloaded, for example, by linking to other websites without the user noticing. But accidental discoveries, e.g. after carelessly clicking on links, are also not punishable.

Examples:
a) It is a criminal offence to knowingly download child pornography onto a hard drive or another storage medium.
b) It is not a criminal offence to download child pornography files unknowingly, for example because they were linked to pornography images that are not a criminal offence.
c) It is a criminal offence, however, if child pornography files are deliberately downloaded, even if they cannot be saved due to technical problems (designed as a so-called corporate offence).

It often happens that when downloading entire archive files with pornographic content, some child pornography files are also saved unintentionally. This is not punishable as an acquisition in itself – due to the lack of intent. However, if you notice these files and do not delete them, you are committing the crime of possessing child pornography.

It is often not easy to make it credible in court that you never noticed such files, even over a longer period of time, so in these cases a conviction may also be threatened. Here, it is the defense attorney’s job to use additional evidence to make the facts understandable even for a judge who is usually not technically versed. Many judges and prosecutors have to first understand what an archive file is, for example, and that by downloading one with “one click” you can get hundreds of images and videos at once.

Accessing already includes viewing child pornography on the Internet that is stored on other computers/servers. As a rule, images that are accessed are automatically saved on the hard drive (e.g. in the so-called browser cache), so that the content can also be reactivated. Because this process is automated, there is no targeted act of acquisition and (usually) no desire to possess; however, the alternative offense of accessing the file is then regularly considered!

Ultimately, this means that any targeted viewing of child pornography on the Internet is punishable. However, this expansion of criminal law leads to considerable problems of proof in many cases. Experience shows that the criminal possession of child pornography remains the most common alternative to the crime that is actually punished.

From a legal perspective, possession of child pornography is actually just a so-called catch-all offense compared to acquisition. In theory, it only has independent significance if there is no active action on the part of the perpetrator to deliberately obtain child pornography, for example when it is automatically saved, or if someone unknowingly or unintentionally gains control over a child pornographic image but then does not immediately get rid of it.

It is therefore also punishable as possession if you have not actively obtained child pornography but notice that you still have child pornographic material and do not immediately delete it or report it to the authorities (so-called omission offense).

However, possession is only punishable if you possess it intentionally, i.e. you know for sure that the child pornographic material is there (see below under intent)! Simply storing a possibly existing but unused material would therefore not be punishable. In practice, you have to expect that such an intention to possess is almost always assumed. Only by knowing the most up-to-date case law of the higher courts and the exact nuances of legal assessment do you have a chance of achieving something in court in such cases.

Examples:
a) It is not a criminal offence if you do not even know that you have child pornography stored on your PC.
b) Strictly speaking, it is also not a criminal offence if someone only considers it possible and accepts that a large collection also contains child pornography images. However, many courts rule differently here. The corresponding intention and desire to possess is quickly assumed.

In practice, the criminalisation of the mere possession of child pornography is very important. Child pornography is often found, but it remains unclear how it came into the possession of the accused. Then the accusation of possession of child pornography is usually made, as this is a catch-all offense and does not require proof of an act of acquisition, but can be punished just as severely.

Often, even possession of files containing child pornography that have already been deleted (but have been restored by the police) is charged, because at least in the past, there is said to have been a criminal possession of child pornography. Then it can not only be argued that the accused got rid of the possession in time and that the required direct intent was lacking, it must also be checked whether the statute of limitations has already expired! In particular, if it is no longer possible to determine when the files containing the child pornography were deleted, it should be noted that, according to the principle of doubt, it can be assumed that the deletion of the files was so long ago that the statute of limitations has expired with regard to the criminal possession. Of course, this does not work with an (almost) new computer.

In all cases where possession of child pornography is alleged, it is important to review the police and public prosecutor’s investigations and assessments based on a thorough analysis of the files. Very often, sometimes due to ignorance, criminal liability is assumed in a blanket or hasty manner. Apparently small details can often be decisive, such as the (possibly missing) time stamp of a file or the file size, which in turn can be an irrefutable indication of automatically saved so-called thumbnails.

In order to be punishable by acquiring or possessing child pornography, one must also act intentionally with regard to all of the above-mentioned 5 characteristics, whereby (with the exception of possession) so-called conditional intent is sufficient.

If just one of the above-mentioned 5 characteristics is missing, there is no criminal liability anyway!

Intent means “knowledge and desire” of all of the above-mentioned elements of the offense, so the offender must intentionally acquire or possess (5.) a pornographic document (1.) of sexual acts (2.) of a child (3.) which shows an actual or realistic event (4.).

The intent must also extend above all to the age of the people depicted. For example, someone who assumes that only legal pornography will be found on a website cannot be punished for accessing child pornography if, contrary to their expectations, it contains criminal content.

When acquiring it, the child pornography must have been obtained with a specific purpose. So they must have wanted to acquire the child pornographic documents. For most courts, it is also sufficient to affirm intent if, for example, based on previous experience when surfing certain websites, they had to expect to come across child pornographic material and accepted this.

In the case of mere possession (which is not accompanied by a previous purchase, see above), however, a (direct) will to possess is always required. In this case, conditional intent is not sufficient. Acceptance of the fact is therefore not sufficient. As shown above, this is particularly relevant in the case of automatically saved images (browser cache).

In our opinion, nothing else can apply to the purchase of child pornography. This logically presupposes the direct will to possess these documents later. So the so-called conditional intent is not sufficient for the purchase either.

Intent can therefore be denied if the user is not aware of the storage, in particular if miniature views (so-called thumbnails) are saved (which common Internet browser settings provide for as an automatic process). If child pornography files are accidentally accessed and stored in the cache without permission, the user must, however, get rid of them – as far as technically possible – by permanently deleting them as soon as he notices them.

In addition, the courts sometimes suspect that those who persistently and systematically collect child pornography have technical knowledge, which also includes browser cache functions. Evidence of knowledge of the stored content is the number of child pornographic images (possibly in relation to existing simple pornography), the names of image files and subsequent access, moving, renaming or copying. If only a few images are found and the connection duration is only short, it is more likely that users did not notice the download.

Even if you quickly delete incriminating files that you have downloaded intentionally or accidentally, you are not completely safe from criminal prosecution. For example, simply deleting them, e.g. in Windows by moving them to the recycle bin and then emptying it, does not completely remove the file from the storage device. If there is suspicion of possession of child or youth pornography, the data storage devices seized by the police are usually handed over to specialists, usually external IT experts, for evaluation. These then search through the so-called free memory and can easily restore deleted files. In such cases, criminal liability is often assumed without further legal review. In many cases, taking action against this is quite promising.

It is not uncommon for so-called thumbnails or preview images, which are automatically generated by Windows Explorer, for example, to be found, even if the original files have long since been deleted. Here, it is important to identify these files as thumbnails in the first place based on characteristics such as storage path and file size and to show the court the associated difficulties in proving intent. Such storage takes place completely unnoticed. In contrast to browser thumbnails, the miniature representations saved by the operating system cannot be called up again without extremely good computer knowledge and manual deletion is also almost impossible for the layperson.

In general, courts quickly assume intent and desire to possess once the relevant files have been found. Here, it is the defense’s job to point out exculpatory evidence – such as that mentioned above. It is often necessary to first draw the court or public prosecutor’s attention to the problems mentioned. Sexual criminal law is not taught at German universities. Many judges and prosecutors – especially in small courts and authorities without corresponding special departments – therefore have only insufficient knowledge of the complicated standards and technical peculiarities, which can easily lead to incorrect judgments without competent legal support.

Distribution of child pornography § 184b para. 1 StGB

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Distribution, making it publicly available or other provision to third parties is punished even more severely than the acquisition or possession of child pornography. The criminal code provides for a sentence of between 6 months and ten years in prison.

In the case of juvenile pornography, both acquisition, possession and distribution are also punishable. However, the sentence is lower, with a maximum of two years’ imprisonment being imposed – even the maximum sentence could theoretically be suspended. Distribution, provision to third parties, making publicly available or production of juvenile pornography can be punished with up to three years.

The main difference to child pornography is the age of the people depicted. Juvenile pornography includes depictions of people aged 14 to 18. In this respect, Section 184c of the Criminal Code creates a high risk of criminal liability even for people who are not specifically looking for depictions of children and have no paedophile tendencies.

However, this norm only depends on the actual age of the people depicted. Unlike “fake juveniles”, there is no such thing as “fake children”. This makes it difficult to prove the accusation in many cases. This of course offers good opportunities for the defense. It is often not clear whether the actress in a porn film is still 17 or already 18 years old. In dubio pro reo, the decision is then made in favor of the accused and against criminal liability. Purely fictitious or virtual youth pornography is also not punishable under any circumstances.

The accused has no chance of seeing the images or videos that have been classified as punishable by the judiciary before the trial. It is therefore difficult for him to defend himself. Only a lawyer has full access to the files and can therefore assess in advance whether proof of age can probably be provided or not.

If “only” the accusation of possession or acquisition of youth pornography is made, there is a good chance of getting the case dropped in return for a fine but without a court hearing, formal conviction, entry in the certificate of good conduct, etc.

Another problem that often arises in connection with the accusation of “child pornography” are self-made “amateur videos” by underage ex-partners. Their production and possession is generally not punishable within the context of a “typical youth relationship” – but only as long as they are not forwarded to other people and as long as the relationship still exists. Such videos must be deleted at the end of the relationship at the latest. However, it is precisely in this area that difficult demarcation problems arise, which are difficult to understand without expert help.

Distribution of violent and animal pornography § 184a StGB

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Anyone who distributes violent or animal pornography or makes it publicly available is punishable by imprisonment of up to three years or a fine, whereby the norm also covers numerous preparatory acts.

However, acquisition or possession, but in particular also passing on to individual, specific persons, is not punishable.

This norm is also intended to protect young people and prevent them from being involuntarily confronted with such pornography. The point of a relatively high penalty of up to three years in prison is not clear at all.

Violent pornography exists when the violence is linked to the sexual acts. If the pornographic writings only contain acts of violence that take place before or after the sexual acts, it is not violent pornography. It is irrelevant whether the depiction depicts an actual event or is only fictitious. The criminal prohibition on distribution may be understandable with regard to real or realistically re-enacted rape scenes, but in the case of consensual violence, for example in the context of sadomasochistic acts, the need for such a sanction is not clear.

Animal pornography exists when sexual acts are carried out with animals as an exercise of human sexuality. Any sexually significant behavior is sufficient, but physical contact is required.

Criminal proceedings solely on suspicion of distributing violent or animal pornography are rare, but are very unpleasant for those affected given the threat of public stigmatization.

But even in such cases, the public prosecutor’s office often hastily assumes that distribution is punishable, even if the relevant content was only passed on to individual, specific people. Even in the case of an exchange in a closed group of interested parties, distribution does not have to occur if uncontrolled distribution outside the group is not intended and is not to be expected.

Distribution specifically means passing on or making available to a larger group of people. It must therefore be a matter of passing on the files to a group of users that is indeterminate in terms of number and individuality, or at least so large that it is no longer controllable by the perpetrator. The term distribution must therefore be interpreted narrowly. Sending files by email does not constitute distribution, as long as this does not happen via open distribution lists.

However, it is not necessary for the document to actually reach a large number of people in order for it to be punishable. It is also not necessary for other people to actually become aware of it.

Since distribution already involves the act of distribution, i.e. the distribution of the document, it is sufficient if the perpetrator can no longer prevent third parties from becoming aware of it. Distributors can be both content providers and host service providers; under certain circumstances, access providers are liable for aiding and abetting.

However, distribution necessarily requires possession. And in relation to this, there must be direct intent. You must therefore know for sure that you own a violent or animal pornographic file in order to be able to distribute it. This may not be the case, for example, when passing on large archive files with numerous unviewed images.

However, questions of intent often arise when making something publicly accessible, as users often carelessly post links without realizing what exactly they refer to or because images that were actually intended for their own use are posted inadvertently.

It is not easy to provide court-proof evidence of the distribution of a file in digital traffic, and this is where a good defense should begin as early as possible. Especially in the case of animal pornography, which is viewed very negatively in public perception, a public trial can often be averted by an experienced early defense.