LEGAL REGULATION AND PURPOSE

The development of the Internet as a communication medium and the rise of social networks for interpersonal interaction have been exploited by sexual offenders to expand their criminal activities, as repeatedly noted by the Spanish Supreme Court (for example, Judgment 97/2015 of 24 February).

This access and interaction between the aggressor and their minor victims—often used as a means to produce child pornography—has become a major concern within the international community.

The criminalization of child pornography must therefore be linked to several international legal instruments, including:

• The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography (New York, 25 May 2000).

• The Convention on Cybercrime (Budapest Convention), adopted on 23 November 2001.

Furthermore, the Council Framework Decision 2004/68/JHA of 22 December 2003, concerning the fight against the sexual exploitation of children and child pornography, did not explicitly address online grooming, although it included related conduct within the offences concerning sexual exploitation of children, such as:

• coercion,

• recruitment,

• or exploitation of children to participate in pornographic performances,

• and engaging in sexual activities with children through coercion, threats, or abuse of a position of trust.

Within the offences related to child pornography, it also included production by computer-based means.

However, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, signed in Lanzarote on 25 October 2007, directly addressed the issue.

Article 23 of this Convention, entitled “Solicitation of children for sexual purposes”, requires States to criminalize:

the act of an adult proposing, through information and communication technologies, a meeting with a child below the age of sexual consent for the purpose of committing sexual offences.

This applies when the proposal is followed by material acts leading toward the meeting, particularly when intended to commit:

• sexual acts with a child (Article 18), or

• the production of child pornography (Article 20).

Similarly, the Third World Congress against the Sexual Exploitation of Children and Adolescents, held in Rio de Janeiro in November 2008, urged States to take measures to:

• prevent child pornography,

• prevent the use of the Internet and new technologies to harass children,

• and combat both online and offline sexual abuse of minors.

Finally, Directive 2011/92/EU of the European Parliament and Council of 13 December 2011, concerning the fight against sexual abuse and sexual exploitation of children and child pornography, replaced Framework Decision 2004/68/JHA.

This Directive clearly expresses concern about online grooming, describing it as one of the serious forms of sexual abuse and exploitation of minors, facilitated by the anonymity provided by the Internet.

Article 6 of the Directive adds another dimension by requiring States to criminalize attempts by adults, through information and communication technologies, to obtain child pornography by deceiving a minor who has not reached the age of sexual consent into providing pornographic material depicting themselves.

ARTICLE 183 TER: ONLINE GROOMING

In Spain, Organic Law 5/2010 introduced the offence of child sexual grooming for the first time through Article 183 bis.

The provision punished anyone who contacted a minor under 13 years old via the Internet, telephone, or other communication technologies and proposed a meeting in order to commit sexual offences.

However, Organic Law 1/2015 introduced an important reform.

According to its preamble, the age of sexual consent was raised to 16 years, aligning Spanish legislation with that of other European countries and following recommendations from the United Nations Committee on the Rights of the Child.

Therefore, sexual acts with minors under 16 years old are generally considered criminal, except in cases involving consensual relations with a person close in age and maturity.

The current Article 183 ter, which replaces the former Article 183 bis, contains two sections.

Article 183 ter.1

A person who:

• contacts a minor under 16 years old

• through the Internet, telephone, or any ICT technology

• and proposes a meeting in order to commit offences described in Articles 183 or 189 (sexual abuse of minors or child pornography),

provided that the proposal is accompanied by concrete acts aimed at facilitating the encounter, shall be punished with:

• 1 to 3 years imprisonment, or

• a fine of 12 to 24 months,

without prejudice to penalties for other offences that may eventually be committed.

If the approach involves:

• coercion,

• intimidation, or

• deception,

the penalty will be imposed in its upper half.

Article 183 ter.2

A person who:

• contacts a minor under 16 through ICT,

• and manipulates or deceives the minor to obtain pornographic material or images of the minor,

shall be punished with 6 months to 2 years imprisonment.

Concept of Child Grooming

The term child grooming refers to:

deliberate actions aimed at establishing a relationship and emotional control over a minor in order to prepare the ground for sexual abuse.

The offender typically builds trust with the minor before attempting to exploit them sexually.

Exception: Proximity in Age and Maturity (Article 183 quater)

Spanish law includes an important exception.

According to Article 183 quater, criminal liability may be excluded when:

• the perpetrator is close to the minor in age and degree of maturity.

However, this concept is deliberately vague, which has generated criticism in legal doctrine due to the importance of the consequences of excluding criminal liability.

A more precise age threshold—like those used in some comparative legal systems—might have been preferable.

The Spanish Supreme Court has clarified this issue in some cases.

For example, it ruled that the exception cannot apply when:

• the adult was 46 years old

• and the minor 11 years old.

The age difference is so significant that:

• a freely given consent cannot be assumed, and

• there is clearly no proximity in age or maturity.

Protected Legal Interest

The offences in this area protect sexual freedom and sexual integrity of minors.

However, when very young children are involved, the protected legal interest is specifically sexual integrity (indemnidad sexual) rather than sexual freedom.

This reflects the assumption that young minors are incapable of valid sexual consent.

The protection was further reinforced when the age threshold increased from 13 to 16 years after the reform of Organic Law 1/2015.

Nature of the Offence

Article 183 ter represents a situation where criminal law anticipates the protection of minors, punishing conduct that would normally be considered preparatory acts.

Traditionally, preparatory acts belong to the internal phase of a crime and are not punishable.

However, the legislator considered that online grooming represents a sufficiently dangerous conduct to justify criminal punishment even before the sexual offence is actually carried out.

Thus, the behaviour is treated as a separate offence, even though it functions as a preparatory stage for sexual abuse of minors under 16.