Child protection initiatives of the Union: largely worthless, useful for the mood

column

Today's column, as always, creates a disturbing arc. This time he runs between two extremely reliable bridgeheads of the good. Blurring of the pixel edges results only when approaching. Where planing is done, says the cultural man, is planed.

Human protection through abortion

On 12 February 2019, the general practitioner Kristina Hänel from Gießen, known as the holder of an honorary title of the district court and the tireless fighter for the freedom of advertising freelancers, sent the following "Twitter" message to the world:

She refers to the "study" of an economist from the United States (2000, German 2006), which stated that the number of violent offenses in the United States was very high in the mid-1970s and significantly lower at the end of the 90s. The fact that abortion was decriminalized in some US states following the Supreme Court's decision "Roe v. Wade" (1973) led the researcher to conclude that the rise in abortions in 1973 had prevented violent criminals to be born. The reason why this is a causality and not an absurd correlation (see: The number of storks and the number of births in Mecklenburg-Western Pomerania increased after reunification ...), follows from the discerning observation that criminals might (!) more often unloved children were considered non-criminals.

One might consider this outrageous nonsense as one of the occasional unbelievable things of the land of the free and brave, and pass over in silence. However, it seems worth pointing out that Hänel, a friend of liberality and information, recommends this "theory" to the interest of the German Minister of the Interior, so that he observes it in the fight against crime.

Elsewhere, the protagonist had mentioned that abortion protects children from a lack of welcome culture and love. The currently tweeted development of the theory of gynecological social hygiene seems to me completely unbearable and repugnant: It is nothing but a recommendation for the preventive abortion of potential offenders, a piece of advice on crime prevention through early destruction of "socially damaged" offspring. Such a thing is also acclaimed in Germany in 2019 as progressive.

child protection

The coalition agreement of the 19th electoral term states: "We will do everything necessary to prevent and decisively combat child abuse and child pornography as prevention programs such as 'Doing no offenders' are an important element to better protect children on the Internet and to increase the effectiveness of prosecuting pedophile offenders who are chasing children on the internet (p. 130) ... Where criminal liability exists, we will introduce criminal liability for the operation of criminal infrastructures. " (P. 218) ... We consistently combat any form of crime "(p. 25)."

Now on February 12, 2019, the CDU / CSU faction in the Bundestag has presented a position paper "Fighting Sexual Abuse of Childhood", which wants to address this issue. It contains 26 proposals that should be "implemented swiftly" by the government. They are partly substantive, partially criminal procedure law, partly social law type and are here - only in part - a first short assessment. It is to be considered self-critical that whatever criminal law policy can come up with proposals for "combating" any malady, a chorus of objections soon arise, which scourges the populist symbolism, criminological uselessness and legislative deficiency of the proposals and, so far he comes from criminal science university chairs or defense lawyers associations, barely ever in the judgment of unconstitutionality (Article 103 paragraph 2 GG: "power of attorney") passes - regardless of the fact that the Federal Constitutional Court has consistently refused this scholar's judgment for 70 years. In other words: It is not necessarily wrong, everything is instilled from Berlin into the legal system. However, not necessarily everything right, which comes in Wahlkampfpapieren on the waves of trigger words so swollen.

Problem Description

No rescue proposal without dramatic description of the state he was created to remedy. "Tens of thousands of children and adolescents suffer sexual violence each year ...," highlights the paper (p.2, below all page numbers after the position paper of 12.2.2019). These are, it is said, in 2017 more than 13,500, "per week more than 250" (we supplement: "every 40 minutes one"). "Statistically," according to the CDU / CSU, "every seventh to eighth child is affected" (ibid.), Without, of course, telling us where this strange calculation comes from. And again and again, according to the authors, cases of abuse become public "- as in the abuse of Staufen" (p. 2).

Well, to select a monstrous felony for the illustration of "tens of thousands" of cases, which certainly does not equal the vast majority of known cases, is a matter of taste. For decades, the propositions of draft criminal law phrases like "terrible crimes of recent times require ..." They are worthless to the cause, useful for the mood. The fact that the public is in the long run to the maximum penalty for any theft by the fact that it is all cases as the heaviest robberies seems to me rather doubtful.

The police crime statistics (PKS) for 2017 under the title "Sexual abuse of children" (§§ 176, 176a, 176b of the German Criminal Code a total of 11,547 suspected cases of which accounted for § 176b (sexual abuse with fatalities), 5168 § 176 Abs 1 and 2 ("simple" sexual abuse, ie all actions without any penetration into body orifices), 1568 to § 176 (4) no. 1 (exhibitionist acts before children without touch) and 2120 to § 176 (4) no and 4 StGB ("Intervene" on children with the intention to commit a "simple" act under paragraph 1, etc. - ie a preparatory act) for the "serious sexual abuse" (§ 176a, esp Body, wherever and however, does not really have many cases, and this group, in turn, includes cases of "fugitive finger penetration into the vaginal vestibule" (or the mouth) to violent vaginal or anal intercourse.

As is well known, the PKS does not list the proven cases, but only the suspicious cases recorded by the police. Information about the outcome of the proceedings gives (in part) the so-called Rechtspflegestatistik (Federal Statistical Office, Fachserie 10), which is not very easy for laymen to understand. It has a total of 1,866 child sexual abuse offenses for 2017.

Now, you can say a lot about the depths of these two (and other) statistics (though, if you're consoling, please do not make the usual joke, all you do not understand are "fake"). The fact is that child sexual abuse rates have fallen almost continuously since 1993. This is particularly noteworthy because at the same time the social contempt for these acts and the willingness to read have increased significantly. Criminological message: Abuse of domination over children for sexual reasons is associated with a significantly increased risk of discovery compared to earlier years. In particular, familial relationships of dependency are much less likely to be prosecuted.

Unfortunately, such positive messages are not received with satisfaction in the current indignant and scandalizing culture, but are regarded as "irresponsible trivialization" and inevitably lead to bitterest allegations against the bearers of the good news that they are callous and blind to the suffering of the remaining victims , That's complete nonsense, but successful. One symptom of this is the unfortunate habit of calling any crime "violence". "Tens of thousands suffer sexual violence" (page 2) may be described as a very free interpretation of the term. Most Internet customers consider this clarification to be "subtle" as far as the evil neighbor is concerned, but would certainly defend themselves against the Federal Constitutional Court if, even for the unnoticed theft of a lipstick ten years ago, as a "serious robber" and " Violent offender "would be listed.

Material criminal law

The CDU / CSU proposes to increase the penalties for possession of child pornography (§ 184b StGB) from three to five years. Reason: "It must not be that a shoplifting has a higher penalty than the possession of child pornography" (page 6). This is a rather arbitrary - not to say stupid - justification. The offense "shoplifting" does not exist; it is only a concrete form of "theft" (§ 242). The punishment threat lasts until five years. "Ownership of child pornography" (§ 184b Abs. 3 StGB) is already given, if a person possesses a single pornographic writing (or: a picture) without any relation to a concrete happening.

The comparison in the position paper is therefore somewhat biased. One could just as well say: It must not be that the impending taking away a chewing gum (= heavy robbery, § 250 StGB, punishable threat 15 years) has a higher penalty frame than the pulling in of taxes in Billions (see § 370 exp. 2 tax code: 10 years). Or: that the unauthorized driving with a foreign moped in a traffic-calmed zone (§ 248b, punishment to 3 years) is punished more severely than the nightly intrusion and creeping into foreign (n) flats (§ 123 StGB, punishment up to 1 year).

Such absurd-sounding comparisons can be delivered in random quantities to any criminal lawyer who has a standard comment on the StGB. They are not always wrong, but they live on the fact that they juxtapose polemically abstract "frameworks" with concrete "acts" and thus deliberately mislead a grotesque disproportion to an audience that can usually imagine the latter at best. With legal politicians in the campaign mode one knows, as with the red deer and capercaillie in the late autumn, usually not exactly, on which side of the knowledge threshold they stand.

At first glance, the "ownership" of child pornography (incidentally, it is completed with downloading to memory!) And the attempt to get it (clicking on "Google" search results to find such a page! ) are so far - rightly! - less threatened (three years - yes, that's something) as the spreading, manufacturing, making accessible, etc. (five years). If one upshifted the mere possession (so CDU), the relation to the manufacture would no longer be correct; So you would have to upgrade this to 10 years. There, however, is already the "bandit action" settled (three people are enough). Result, as usual, but unimaginative as always and also concealed in the CDU / CSU: Everything must be high! However, there is no recognizable criminological meaning, effect and advantage. For there is nothing to suggest that perpetrators of possession of child pornographic writings and illustrations are liable to a penalty of three years, but soon become law-abiding in the event of a punitive threat of five years. Ninety-nine percent of them are socially integrated people who just hope not to get caught .

This points to two other weaknesses of the concept: on the one hand it deals with "pedophilia" as a synonym of the criminal category of "perpetrators of sexual abuse". This is already missed in the approach, because the vast majority of perpetrators of sexual abuse of children are not pedophile (in the psychiatric sense), but attack under abuse of power relations to children (both sexes), because they "replacement" and projection of power and Defenselessness are.

Pedophiles are (presumably) more virtual than in real life. If you rigorously criminalize your sexual preference, however substantiated, you say people who are no different than anyone else are punished for life (!) For any realization of their imagination that does not stay in the innermost circle of thought. A hard limit, which every heterosexual or homosexual "inclined" person may even present as a perspective of his own life.

On the other hand, the recent condemnation of virtual child pornography does not seem to me to be in sync with the suggestion that the police should be able to produce more and put it online to catch even more offenders (see below).

"Cybergrooming"

Pedophiles and others dig children on children's platforms to reach sexually motivated contacts - mostly virtual, occasionally "real". They pretend to be children or adolescents in order to establish trust and pretense-closeness. This is punishable if it leads to success (see § 176 Abs. 4 StGB). The position paper already wants to punish the (unsuccessful) attempt to make such a contact in order to be able to punish people who try to approach "fake" persons (police officers). That sounds good, but it's not worth it: Policemen posing as children do not need to be protected; and a (socially exposing) "approach to danger" is likely to have significantly more impact than a penalty order after 18 months. And here, moreover, is concealed that the punishability of the "experiment" would capture much more actions than the error about the children's property of the chat partner: even the mere call of the site and the signing would be punishable. Of course, whoever imagines the effort of a fiend among them will naturally like that. Those who recognize themselves in the failed attempt to persuade someone else by lying about their own disinterestedness may doubt the all-encompassing access of criminals.

Further tightening

New facts against "Darknet" trading platforms: Sounds good, is a bit unclear. To punish anyone who operates a platform that serves "for the purpose" of illegal business. But who actually does that is already punishable because of the illegal business. Whether a person does it "for purpose" (that is, on purpose) is just the question.

The deletion deadlines for entries in the criminal record should be substantially extended, so that persons "convicted of sexual offenses against children ... can not exercise occupations near children (more)" (p. 7). Sounds good, but it can be problematic. A lifelong stigmatization of people who, at the age of nineteen and full of headache, have stung a (over-consenting) 13-year-old person may not be the last word in wisdom.

process

The salient motto of the procedural part of the position paper is: "Child protection instead of perpetrator protection" (p. 7). The catch to this cozy-sounding motto is that it has little to do with process right. After all, who is the "perpetrator" who should not be protected, must first be found out in the process. The CDU / CSU suggests that remand under suspicion of child pornography (§ 184b StGB) can be imposed even if there is a "danger of repetition" (see §§ 112, 112a StPO). Combined with the criminological-psychiatric insight that pedophilia is a largely corrective-resistant disposition, this leads to the new rule: regular detention while attempting to "procure" pornography. You can do that; it is, however, of merciless narrowness. Pre-trial detention means in the constitutional state not "anticipated suspensory punishment", but "safeguarding the procedure".

For example, let's say: What is the probability that a tax evader of the year 2017 will do the same in 2019? Or: How often do people who have gone black or twice committed social security fraud repeat the same crime? May I draw your attention to the fact, dear readers, that every telephone-enabled "sick leave" that you have sent to your dear employer in the last 10 (non-statute) years was a veritable fraud (Section 263 of the Criminal Code, penalties up to ten years)? I suspect that the risk of repetition is quite high.

Fake News

Investigation authorities should be allowed to develop and input into the network virtual child pornography for the purpose of identifying potential or real offenders. I consider this permissible if and to the extent that it adheres to the same limits as the "provocation" in general. The supreme court rulings of Germany and the European Union have formulated conditions and limits: it is permissible to offer persons ready to act as potential participants in the crime. It is forbidden to diligently produce the willingness to act of the suspects, only to make an "example" of them.

prevention

There is no doubt that injured people should be helped and efforts made to minimize the number of injured and tortured people. This is also and especially the task of the state. However, as a precautionary measure, one must consider the structures and systems of prevention and their self-generating logic, and then again the hesitation, and then again the realities ...

Who wants to say: who sets up "Victim Support Centers", "Affected Rooms", protection concepts and "Representative Positions" - for whatever! - and equipping it with high-level goals, posts and "resources" must, as administrative sociology knows, take into account that it not only builds good aid but also a self-sustaining structure. Banal: The more agents to register errors, the more errors are registered.

There is no evidence that sensitivity to the suffering, failures and guilt of others among us is ever increasing. In view of the almost complete Gelangweiltheit a majority of (federal) citizens against the daily reported real suffering really living people who are clearly causally related to Germany springing from springs, one might rather assume the opposite. On the other hand, there is little evidence that sensitivity is constantly decreasing. Certainly there is one or the other for both theses.

Result

There is no hands-on result in a feuilletonist column like this one. The CDU / CSU faction in the German Bundestag has decided on ten pages what it allegedly came to "fighting" the "sexual abuse of children". Of course not everything is wrong. But 90 per cent seems to me more in the category "rhubarb, rhubarb": we have heard it again and again for 25 years. The proposals were always the best and the expected successes inevitable. And always the own (!) Concepts of the past were inadequate. First of all, you have to press the beloved citizens into the trembling voter's hand.