Recommended Sentencing - Germany

[GLover]

Section 183a - Causing a public disturbance

Whosoever in public engages in sexual activity and thereby intentionally or knowingly creates a disturbance shall be liable to imprisonment not exceeding one year or a fine unless the act is punishable under section 183.

[GLover]

Section 184 - Distribution of pornography

(1) Whosoever with regard to pornographic written materials (section 11(3))

• offers, gives or makes them accessible to a person under eighteen years of age;
• displays, presents or otherwise makes them accessible at a place accessible to persons under eighteen years of age, or which can be viewed by them;
• offers or gives them to another in retail trade outside the business premises, in kiosks or other sales areas which the customer usually does not enter, through a mail-order business or in commercial lending libraries or reading circles; OR (3a) offers or gives them to another by means of commercial rental or comparable commercial supply for use, except for shops which are not accessible to persons under eighteen years of age and which cannot be viewed by them;
• undertakes to import them by means of a mail-order business;
• publicly offers, announces, or commends them at a place accessible to persons under eighteen years of age or which can be viewed by them, or through dissemination of written materials outside business transactions through the usual trade outlets;
• allows another to obtain them without having been requested to do so;
• shows them at a public film showing for an entry fee intended entirely or predominantly for this showing;
• produces, obtains, supplies, stocks, or undertakes to import them in order to use them or copies made from them within the meaning of Nos 1 to 7 above or to facilitate such use by another; or
• undertakes to export them in order to disseminate them or copies made from them abroad in violation of foreign penal provisions or to make them publicly accessible or to facilitate such use,

shall be liable to imprisonment not exceeding one year or a fine.

(2) Subsection (1) No 1 above shall not apply if the offender is the person in charge of the care of the person, unless that person grossly violates his duty of education by offering, giving, or making them available. Subsection (1) No 3a above shall not apply if the act takes place in business transactions with commercial borrowers.

[GLover]

Section 184b - Distribution, acquisition and possession of child pornography

(1) Whosoever

• disseminates;
• publicly displays, presents, or otherwise makes accessible; or
• produces, obtains, supplies, stocks, offers, announces, commends, or undertakes to import or export in order to use them or copies made from them within the meaning of Nos 1 or 2 above or facilitates such use by another pornographic written materials (section 11 (3)) related to sexual activities performed by, on or in the presence of children (section 176 (1)) (child pornography)

shall be liable to imprisonment from three months to five years.

(2) Whosoever undertakes to obtain possession for another of child pornography reproducing an actual or realistic activity shall incur the same penalty.

(3) In cases under subsection (1) or subsection (2) above the penalty shall be imprisonment of six months to ten years if the offender acts on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences and the child pornography reproduces an actual or realistic activity.

(4) Whosoever undertakes to obtain possession of child pornography reproducing an actual or realistic activity shall be liable to imprisonment not exceeding two years or a fine. Whosoever possesses the written materials set forth in the 1st sentence shall incur the same penalty.

(5) Subsections (2) and (4) above shall not apply to acts that exclusively serve the fulfilment of lawful official or professional duties.

(6) In cases under subsection (3) above section 73d shall apply. Objects to which an offence under subsection (2) or (4) above relates shall be subject to a depriation order. Section 74a shall apply.

[GLover]

Section 184c - Distribution, acquisition and possession of juvenile pornography

(1) Whosoever

• disseminates;
• publicly displays, presents, or otherwise makes accessible; or
• produces, obtains, supplies, stocks, offers, announces, commends, or undertakes to import or export in order to use them or copies made from them within the meaning of Nos 1 or 2 above or facilitates such use by another pornographic written materials (section 11 (3)) related to sexual activities performed by, on or in the presence of persons between the ages of fourteen to eighteen years (juvenile pornography)

shall be liable to imprisonment not exceeding three years or a fine.

(2) Whosoever undertakes to obtain possession for another of juvernile pornography reproducing an actual or realistic activity shall incur the same penalty.

(3) In cases under subsection (1) or subsection (2) above the penalty shall be imprisonment of three months to five years if the offender acts on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences and the juvenile pornography reproduces an actual or realistic activity.

(4) Whosoever undertakes to obtain possession of child pornography reproducing an actual or realistic activity shall be liable to imprisonment not exceeding one year or a fine. The 1st sentence shall not apply to acts of persons related to juvenile pornography produced by them while under eighteen years of age and with the consent of the persons therein depicted.

(5) Section 184b (5) and (6) shall apply mutatis mutandis.

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Section 184d - Distribution of pornographic performances by broadcasting, media services or telecommunications services

Whosoever disseminates pornographic performances via broadcast, media services, or telecommunications services shall be liable pursuant to sections 184 to 184c. In cases under section 184 (1) the 1st sentence above shall not apply to dissemination via media services or telecommunications services if it is ensured by technical or other measures that the pornographic performance is not accessible to persons under eighteen years of age.

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Section 184f - Prostitution likely to corrupt juveniles

Whosoever engages in prostitution

• in the vicinity of a school or other locality which is intended to be visited by persons under eighteen years of age; or
• in a house in which persons under eighteen years of age live,

in a way which is likely to morally corrupt these persons, shall be liable to imprisonment not exceeding one year or a fine.

[GLover]

Section 201a - Violation of intimate privacy by taking photographs

(1) Whosoever unlawfully creates or transmits pictures of another person located in a dwelling or a room especially protected from view and thereby violates their intimate privacy shall be liable to imprisonment not exceeding one year or a fine.

(2) Whosoever uses or makes available to a third party a picture created by an offence under subsection (1) above shall incur the same penalty.

(3) Whosoever unlawfully and knowingly makes available to third parties a picture that was created with the consent of another person located in a dwelling or a room especially protected from view and thereby violates his intimate privacy shall be liable to imprisonment not exceeding one year or a fine.

(4) The visual media and the visual recording devices or other technical means that the principal or secondary or participant used may be subject to a deprivation order. Section 74a shall apply.

[GLover]

Section 225 - Abuse of position of trust

(1) Whosoever tortures or seriously abuses or by maliciously neglecting his duty of care for a person damages the health of a person under eighteen years of age or a person who is defenceless due to frailty or illness and who

• is in his care or custody;
• belongs to his household;
• has been placed under his control by the person obliged to provide care; or
• is subordinated to him within a relationship of employment,

shall be liable to imprisonment from six months to ten years.

(2) The attempt shall be punishable.

(3) The penalty shall be imprisonment of not less than one year if the offender places the person in danger of

• death or serious injury; or
• a substantial impairment of his physical or mental development.

(4) In less serious cases under subsection (1) above the penalty shall be imprisonment from three months to five years, in less serious cases under subsection (3) above imprisonment from six months to five years.

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Section 232 - Human trafficking for the purpose of sexual exploitation

(1) Whosoever exploits another person's predicament or helplessness arising from being in a foreign country in order to induce them to engage in or continue to engage in prostitution, to engage in exploitative sexual activity with or in the presence of the offender or a third person or to suffer sexual acts on his own person by the offender or a third person shall be liable to imprisonment from six months to ten years. Whosoever induces a person under twenty-one years of age to engage in or continue to engage in prostitution or any of the sexual activity mentioned in the 1st sentence above shall incur the same penalty.

(2) The attempt shall be punishable.

(3) The penalty shall be imprisonment from one to ten years if

• the victim is a child (section 176(1));
• the offender through the act seriously physically abuses the victim or places the victim in danger of death; or
• the offender commits the offence on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences.

(4) The penalty under subsection (3) above shall be imposed on any person who

• induces another person by force, threat of serious harm or by deception to engage in or continue to engage in prostitution or any of the sexual activity mentioned in subsection (1) 1st sentence above or
• gains physical control of another person by force, threat of serious harm or deception to induce them to engage in or continue to engage in prostitution or any of the sexual activity mentioned in subsection (1) 1st sentence above.

(5) In less serious cases under subsection (1) above the penalty shall be imprisonment from three months to five years, in less serious cases under subsections (3) and (4) above imprisonment from six months to five years.

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Section 233a - Assisting in human trafficking

(1) Whosoever assists in human trafficking under section 232 or section 233 by recruiting, transporting, referring, harbouring or sheltering another person shall be liable to imprisonment from three months to five years.

(2) The penalty shall be imprisonment from six months to ten years if

• the victim is a child (section 176(1));
• the offender through the act seriously physically abuses the victim or places the victim in danger of death; or
• the offender commits the offence on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences.

(3) The attempt shall be punishable.

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Section 235 - Abduction of minors from the care of their parents etc

(1) Whosoever removes from the custody of one or both of his parents or his guardian or denies them access to

• a person under eighteen years of age by force, threat of serious harm or deception; or
• a child, without being a relative,

shall be liable to imprisonment not exceeding five years or a fine.

(2) Whosoever

• removes a child from the custody of one or both of his parents or his guardian in order to take him abroad; or
• denies access to him abroad after having removed him there or the child having gone there,

shall incur the same penalty.

(3) In cases under subsection (1) No 2 and subsection (2) No 1 above the attempt shall be punishable.

(4) The penalty shall be imprisonment from one to ten years if the offender

• by the offence places the victim in danger of death or serious injury or of a substantial impairment of his physical or mental development; or
• commits the offence for material gain or with the intent of enriching himself or a third person.

(5) If by the offence the offender causes the death of the victim the penalty shall be imprisonment of not less than three years.

(6) In less serious cases under subsection (4) above the penalty shall be imprisonment from six months to five years, in less serious cases under subsection (5) above imprisonment from one to ten years.

(7) The abduction may only be prosecuted upon request in cases under subsections (1) to (3) above unless the prosecuting authority considers propio motu that prosecution is required because of special public interest.

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Section 236 - Child trafficking

(1) Whosoever in gross neglect of his duties of care and education leaves his child, ward or foster child under eighteen years of age with another for an indefinite period for material gain or with the intent of enriching himself or a third person shall be liable to imprisonment not exceeding five years or a fine. Whosoever in cases under the 1st sentence above takes the child, ward or foster child into his home for an indefinite period and awards compensation for it shall incur the same penalty.

(2) Whosoever unlawfully

• procures the adoption of a person under eighteen years of age; or
• engages in procurement activity with the aim of a third person taking a person under eighteen years of age into his home for an indefinite period,

and acts for consideration or with the intent of enriching himself or a third person shall be liable to imprisonment not exceeding three years or a fine. Whosoever, as an agent for the adoption of a person under eighteen years of age, grants a financial reward to a person in exchange for the required consent to the adoption shall incur the same penalty. If the offender in cases under the 1st sentence above causes the procured person to be brought into Germany or abroad the penalty shall be imprisonment not exceeding five years or a fine.

(3) The attempt shall be punishable.

(4) The penalty shall be imprisonment from six months to ten years if the offender

• seeks profit or acts on a commercial basis or as a member of a gang whose purpose is the continued commission of child trafficking or
• by the act places the child or the procured person in danger of a substantial impairment of his physical or mental development.

(5) The court may in its discretion mitigate the sentence (section 49(2)) for accomplices in cases under subsections (1) and (3) above and for secondary participants in cases under subsections (2) and (3) above, or order a discharge under subsections (1) to (3), if their guilt, taking into consideration the physical or mental welfare of the child or the procured person, is of a minor nature.

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Section 240 - Using threats or force to cause a person to do, suffer or omit an act

(1) Whosoever unlawfully with force or threat of serious harm causes a person to commit, suffer or omit an act shall be liable to imprisonment not exceeding three years or a fine.

(2) The act shall be unlawful if the use of force or the threat of harm is deemed inappropriate for the purpose of achieving the desired outcome.

(3) The attempt shall be punishable.

(4) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender

• causes another person to engage in sexual activity or to enter into marriage;
• causes a pregnant woman to terminate the pregnancy; or

3.  abuses his powers or position as a public official.