Sexting, i.e. the consensual exchange of intimate selfies, can be criminally relevant depending on age. If a person under the age of 18 receives an explicit image from another person under the age of 18 and does not delete it immediately after becoming aware of it, this may constitute youth pornography (Section 184c StGB). If the person who creates and sends the revealing image is under the age of 14, they must be investigated for child pornography (§ 184b StGB).
The accusation of a sexual offense is serious. A criminal investigation can be stigmatizing and have serious consequences for young people. The legislator has tightened the law in recent years.
In response to a series of horrific abuse scandals, the legislator tightened the child pornography paragraph, §184b StGB, in June 2021. The distribution, acquisition and possession of child pornography content was upgraded from a misdemeanor to a felony. This means that the offense is now punishable by at least one year's imprisonment. Punishing cruel acts such as documented child abuse with severe penalties is more than logical. However, the tightening of the law also has bizarre consequences.
Well-meaning parents or teachers who - acting with the best of intentions - collected evidence and went to the police with the relevant material on their cell phones suddenly became a case for the judiciary. After all, they too were in possession of child pornography. "In contrast to a misdemeanor, the trial for a felony cannot be dismissed due to nullity," explains Sünje Andresen. There have been many such "non-cases" since the tightening.
"The police crime statistics for 2023 show that almost half of all suspects were under the age of 21, of which almost 30% were even under 14," says Sünje Andresen. "I don't want to deny that young people can also be perpetrators. But these statistics also include those who do not fit the profile of the paedo-criminal offender that we should actually be looking at, but who are also young people who discover their sexuality." Once the case has been registered, investigators, public prosecutors and judges must deal with it. This eats up a lot of time and resources that would be needed to prosecute serious cases of documented abuse.
Stephan Dreyer is upset that the discourse on this topic currently revolves around how children and young people can avoid punishment if they share consensual intimate content. "Children and young people who discover their sexuality consensually should not be afraid of being punished as sex offenders. Like many areas of children and young people's lives, sexuality is also moving into the digital realm. It's better to talk to them about sexting in a way they feel comfortable with; that they should only do it with people they really trust, or that they say no if they don't want something."