The Brazilian Legal Debate on “Rape imagery” and “Child Pornography” or Why legal wording matters

Author: Carolina Christofoletti

1) According to the Article 241-E of Brazilian Child and Teenager Statute, “scene” is to be understood as “any situation”, for which when Brazilians are talking about child pornography they are talking about something much broader than imagery.

2) Child Abuse Material does not exist legally in Brazil. What exists, according to Article 218-C of Brazilian Criminal Code, is photography, videos or any other audiovisual register.

3) Child Sexual Abuse is called Rape in Brazil. The terminology is misleading, for under Brazilian rationality, Rape only exists when there’s violence. Despite that, this is still legal terminology.

4) When Brazilian people are talking about the legal problem of Child Sexual Abuse, they must bear in mind that the consequences also apply for any other sexual contact existing not only with children, but any people that is considered “vulnerable” under Brazilian law. Vulnerable is anyone that is not in a mental state where one can freely express its consent to a sexual act. Despite the chaos of this double category, that’s how legislation is.

5) According to the Article 241-E of Brazilian Child and Teenager Statute, Child Pornography needs or genitals (dressed or undresses- Brazilian Superior Court of Justice) shown for a primarily sexual purpose (United Nations Model of Regulation) or explicit sexual activity with someone under than 18 years old. In my opinion, the category is under inclusive. Forcing someone under 14 years old to watch a sexual act for the purpose of fulfilling someone’s sexual pleasure, what is also a criminal act in Brazil, is not a sexual activity with a minor. Urging someone under 14 years old to pose for a camera is a criminal act in Brazil, but is not an explicit sexual activity. My point is that Sexual Criminal Law and Criminalization of Digital Content must walk together.

6) Though rape is the most serious sexual offence that Brazilian law has when we are talking about sexual crimes against children, they are not the only one. Again, Sexual Criminal Law and Criminalization of Digital Content must walk together.

7) Since 2018, the debate on Child Abuse Material or Child Pornography set the Brazilian rules into a chaos. When we are about to change a word in a legal rule, we must change it systematically, wherever it appears.

8) Child Sexual Abuse Material must be created as an autonomous, independent legal category.

9) End 2018, Brazilian Congress enacted a law creating “rape audiovisual material” as a new crime. The new legislation is much softer than Child Pornography provisions (born in 2008, ten years before). As rape can only exist when there’s violence or a sexual activity with someone less than 14 years old, we are talking about a legislation chaos that is falling right into rules governing Sexual Abuse Material from people less than 14 years old.

10) For Child Pornography provisions survives (as Brazilian Congress has highly highlighted), Sexual Abuse Material from people older than 14 years old are deserving a much more serious sanction than its counterpart of under aged (less than 14 years old) victims. See the difference:

a) If its is child pornography: Producing (4 to 8 years of imprisonment and payment of a fine), Selling (4 to 8 years of imprisonment and payment of a fine), Distributing (3 to 6 years of imprisonment and payment of a fine), Possession (1 to 4 years of imprisonment and payment of a fine)

b) If it’s rape imagery: Selling or Distributing: Penalty – reclusion, from 1 (one) to 5 (five) years, if the fact does not constitute a more serious crime.

11) For law people reading this, let me remember to you how many and what kind of benefits do Brazilian criminal law offers to cases sanctioned with under 2 years of imprisonment (including no prosecution)

12) When the term “rape audiovisual material” emerged in the Brazilian legislation, coexisting with “child pornography” regulations, it created a perverse effect: All of a sudden, the existence of two kinds of categories with two different legal consequences is something that cannot be denied any more.

13) See how, with this differentiation, producing rape material and its possession are on a legal loophole.

14) More than that: While rape definition exists (in the case of crimes perpetrated against children, at Art. 217-A of Brazilian Criminal Law), child pornography definition (or even pornography) does not. 15) Legal Opinions at Brazilian Congress insisted that Child Pornography provisions were not revoked. They coexist with the new Art. 218-C of Brazilian Criminal Code. It did not say that Criminal Code Provisions does not apply to child victims (though it should have said that, and regulated child material separately) 16) If we keep reading what Art. 218-C of Brazilian Criminal Code says until its end, we will discover that it is not only rape audiovisual material that is criminalized there, but also non-consensual register of sex scene, nudity and pornography.

17) Remember that though the name of criminal offence is, as it appears in criminal offences, is child pornography (law defines pornography as sexual explicit activities but their criminal offences are so written: explicit sexual activities). Vicious circle, for there’s a legal definition of terms, child pornography was, until 2018, only explicit sexual activity.

18) Brief, child pornography as such (implicit sexual acts and all kind of images used for sexual purpose) is criminalized in 2018 in Brazil, for force of Art. 218-C of Brazilian Criminal Code. 19) We don’t know exactly what child pornography means according to Brazilian Criminal Code (for, different of rape material, there’s no definition of pornography), we know something: rape is rape, pornography is pornography. 20) Since adequate legal adjudication is also a constitutional right, with a simple word changing, severe material is now sanctioned as it’s softer counterparts. Content became an indifferent factor. What defines the severity of criminal law response is, finally, the degree of explicitness. 20 reasons why legal redaction reform is urgently needed! _______________________________________________________________

Referred Legislation;

Art. 241, Estatuto da Criança e do Adolescente: (Definição para os fins de adjudicaçao dos crimes de Pornografia Infantil) Para efeito dos crimes previstos nesta Lei, a expressão “cena de sexo explícito ou pornográfica” compreende qualquer situação que envolva criança ou adolescente em atividades sexuais explícitas, reais ou simuladas, ou exibição dos órgãos genitais de uma criança ou adolescente para fins primordialmente sexuais. (Incluído pela Lei nº 11.829, de 2008)

Art. 217-A, Código Penal: (Estupro de vulnerável) Ter conjunção carnal ou praticar outro ato libidinoso com menor de 14 (catorze) anos: (Incluído pela Lei nº 12.015, de 2009) Pena – reclusão, de 8 (oito) a 15 (quinze) anos. (Incluído pela Lei nº 12.015, de 2009)

Art. 218-C, Código Penal: (Divulgação de cena de estupro ou de cena de estupro de vulnerável, de cena de sexo ou de pornografia) Oferecer, trocar, disponibilizar, transmitir, vender ou expor à venda, distribuir, publicar ou divulgar, por qualquer meio – inclusive por meio de comunicação de massa ou sistema de informática ou telemática -, fotografia, vídeo ou outro registro audiovisual que contenha cena de estupro ou de estupro de vulnerável ou que faça apologia ou induza a sua prática, ou, sem o consentimento da vítima, cena de sexo, nudez ou pornografia: (Incluído pela Lei nº 13.718, de 2018) Pena – reclusão, de 1 (um) a 5 (cinco) anos, se o fato não constitui crime mais grave. (Incluído pela Lei nº 13.718, de 2018)