25 Nov child pornography

The concept of child pornography has encountered numerous problems regarding its correct definition. There are two criteria to take into consideration: the subjective criterion, linked to the impact that the representation has on those who come into contact with it; and the other of an objective nature, legato, instead, to the sexual content of this representation.
Well, the Court of Cassation intervened in 2004, who adopted an intermediate position between the subjective and the objective one, stating that: ''the representation of a pornographic nature of minors must be identified on the basis of ascertaining the intended purpose of the representation to excite the sexuality of others and its suitability for achieving this purpose, paying attention to the evaluation of the erotic nature of the poses assumed or the movements performed by the minor''.
Pursuant to art. 3 of the L. 3.8.1998, n. 269, entitled ''Rules against the exploitation of prostitution, of pornography, of sex tourism to the detriment of minors, such as new forms of enslavement’’, the crimes of child pornography present within the art have been outlined. 600-Tue. L’art. 600-Tue is composed in an almost complex way, being characterized by multiple and different cases:

• The paragraph 1 integrates the creation of pornographic exhibitions or shows with the use of minors; the production of pornographic material, using minors; the recruitment or induction of minors to participate in pornographic performances; the perception of other profit from the aforementioned shows.
• The paragraph 2 provides for the marketing of child pornographic material indicated in the paragraph 1.
• The paragraph 3 refers to distribution, disclosure, dissemination and advertising of child pornographic material indicated in the paragraph 1; the distribution and dissemination of news or information aimed at the enticement or sexual exploitation of minors.
• The paragraph 4 takes the form of the offer of pornographic material referred to in the paragraph 1; the transfer, even free of charge, of pornographic material referred to in the paragraph 1.
• The paragraph 6 punishes those who watch child pornography shows.

Of particular importance is the division of the topic into two distinct interests, where the paragraph 1 refers to the protection of the evolving personality in its psycho-physical or moral dimension, while the remaining cases are aimed at protecting the external dimension, relational or social.
The article 600-quater c.p., concerning the ''Possession of or access to pornographic material’’, introduced with L. 3.8.1998, n. 269, and then modified by the art. 3 of the L. 6.2.2006, n. 38, establishes: ‘‘Whoever, outside of the hypotheses provided for in article 600-ter, knowingly procures or possesses pornographic material made using minors under the age of eighteen is punished with up to three years' imprisonment’’.
So, we moved towards the interpretation according to which the legislator did not intend to protect the development of the psycho-physical personality of the minor as a legal asset, but attention seems to shift instead to the repression of the sexual perversion of the pedophile, possessor of child pornography, and as such dangerous for society.

There's no doubt about it, at this point, believe that the internet has given greater access to sexually obscene images, including child pornography. Internet can be interpreted as the freest expression of the manifestation of people's sexual desires, allowing via the cyberspace to interface with users having the same interests, going in turn, to streamline, or rather justify, that sense of guilt that society attributes to him. The indeterminacy of the public of the world of Web has increased the pedophilia market by allowing new ones, but above all different, virtual lands of dissemination.

With regard to the last category, we can recall two very important operations which have opened Pandora's box, bringing to light the horrors of Web 4.0. The Milan postal police and the C.N.C.P.O., the National Center for combating online child pornography of the Rome postal police service, they identified multiple channels telegram and groups whatsapp, aimed at sharing child pornographic photos and videos depicting actual violence against minors, many of which were criminal associations. The anonymity that new applications offer, which allows the real identity of the interested parties to be hidden, guarantees greater security in the acquisition of illicit material. The Casentino case, started from an apparently harmless one chat whatsapp called ''New Year 20k20'' and the ''Families from abuse'' case exploded instead on Telegram, these are just two of the many examples of the dangers of the child pornography market, now increasingly dynamic and stratified.
The world of information technology is not limited only to sharing the material in question, but it has used other paths in step with the evolution of information and communication technologies, which expose minors to increasingly tangible dangers.

L’art. 600-quater.1 c.p., introduced with the art. 4 of the L. 6.2.2006, n. 38, extends the scope of applicability of the phenomena described in the articles. 600-Tue e 600-quater c.p., applying the same provisions even when the pornographic material represents virtual images created using images of minors under the age of eighteen or parts thereof. Therefore, that of the art. 600-quater.1 it is available to multiple autonomous cases, each of which has an equally autonomous legal framework of punishment, deduced from that provided for the corresponding case in point of the ''real'' pornographic material and then corrected by a decrease of one third pursuant to the last part of the paragraph 1 of the rule in question. The concept of ''virtual images'' is defined in the second paragraph, which refers to graphic processing techniques not associated in whole or in part with real situations, whose quality of representation makes non-real situations appear as real. Given the lack of specificity of this concept, it is useful to integrate it with provisions from supranational sources. Virtual child pornography can be divided into three subsets: apparent pornography, attributable to the representation of adults who, by physical and somatic characteristics, they seem minor, excluded from the scope of application of the rule as it is based on the employment of a natural person who is not a minor; partially virtual child pornography, which refers to artificially created images, as collages or photomontages, superimposing or juxtaposing images of the face or other body parts of a real minor with anatomical parts of an adult, intent on sexual activity (cd. morphing); totally virtual child pornography, concerning images that are artificial in all their aspects and that seem to have the predisposition to appear real. Concerning the last category, doubts have been raised about its classification as a crime, but the doubt was initially resolved by Framework Decision no. 2004/68/GAI, which also included pornographic material depicting non-existent minors, for this reason extending the area of ​​punishment to also include the hypothesis of totally virtual pornography. The discipline was subsequently re-analysed and retracted by the Dir. 2011/92/UE, which set aside the reference to images of non-existent minors, thus limiting the scope of applicability of the rule in question.
Embracing the Italian jurisprudential interpretation, it is appropriate to cite sentence no. 59858/10 of 11.11.2010 of the Court of Milan, anticipating the restrictive interpretation offered in the European context. The accused in question held 6990 files representing virtual child pornography material, which has been cataloged into three different typologies:

• two-dimensional or three-dimensional images and videos created as drawings also with the cartoon technique, immediately indicative of imaginative creations;
• three-dimensional images representing minors who cannot be confused with real people;
• three-dimensional images created with high graphic quality representing plastic and proportionate human figures of adults and minors involved in sexual acts, where a two-dimensional image portraying a actually existing minor had been affixed to the top of the minor's body.

The only point to have been taken into consideration is the sub.3), as the final product portrays an indisputably identifiable part of the minor, consequently damaging his sexual reputation. On the contrary, the other two points, sub.1) e sub.2), they do not seem attributable to situations that actually happened, therefore minors are not likely to be identified in reality.
In 2017 but the Supreme Court of Cassation (Cass. pen., sez. III, 13.1.2017, n. 22265) he turned the explanatory line upside down, qualifying as criminal the images whose quality of representation makes sexual situations and activities involving minors appear as real, which had no correspondence with actual facts. In this context, the minor is the victim of even more dangerous crimes, since such material gives the viewer the idea that he is a minor prey subjected to sexual activity, in order to increase one's own or others' sexual drive.
The circulation in Internet of a work that places the minor's face alongside a pornographic context increases the risk of damaging his sexual reputation. Its arrangement allows the protected interest to be identified, represented by sexual honour, which perfects the idea according to which the correct development of the minor's personality occurs in both an internal and external dimension.
Passing, in conclusion, to the analysis of the type of crime pursuant to art. 600-quater.1 c.p., the subjective element requires the nature of malice, including both the representation of the pornographic nature of the material, and the awareness of the use of images depicting minors for its packaging.
As far as it concerns, instead, to its legal nature, the contours appear to be those of abstract danger, as a consequence of the fact that the material in question is suitable for encouraging those deviant behaviors, such, in turn, to give rise to further conduct detrimental to the physical-psychological integrity of minors.

In conclusion, in light of the increasingly incisive evolution of technology and the numerous debates on the correct interpretation of the various scenarios that are represented, in order to avoid any possible restriction of the protected legal asset, the jurisprudence of the Supreme Court has moved towards an extensive interpretation of the phenomena.

Within the broad case of virtual child pornography, alongside domestic pornography, which recently brought to light some interesting insights into its interpretation, with reference to the technological field.
Domestic pornography, term indicating the production of content or, more specifically, sexually explicit images depicting a minor by anyone who has entered into an intimate emotional relationship with them, it has been at the center of numerous debates and interpretative modifications.
Therefore, in the ruling of the United Sections n. 51815 of the 2018 it was ruled out that in domestic pornography the character of exploitation or objectification of minors over fourteen was present, who must be recognized the right to exercise their sexual freedom also through video or photographic reproductions, if the material is created within a relationship free from constraints and is relegated to strictly private use.
Subsequently, the Third Criminal Section of the Supreme Court, by order of 22 April of 2021, seems not to share the previous interpretation,
underlining the difference between an intimate interpersonal relationship between minors and one undertaken by a minor and an adult, in which it is difficult to classify as an equal relationship. Likewise, it is reiterated that the consent given by the minor in question to sexual acts does not also extend to that for the resulting digital representations.
With the sentence of 28 October 2021, n. 4616 the United Sections had the opportunity to adequately clarify the boundaries within which domestic pornography occurs. In the first place, better determine the category of the active subject, which must be different from the passive one, with exclusion, what's more, of the self-production phenomena of the material (es. the selfie). Secondly, in ascertaining the absence of conditioning of the minor's will, particular attention will be required if the relationship is made up of an adult and the minor represented, specifically verifying that the adult has not overcome the minor's resistance by inducing him to overcome his reluctance through techniques of psychological manipulation and emotional seduction. Finally, in no case can the minor be given consent to the circulation of material with sexual content concerning him, since it must be excluded that the subject in question has reached a level of maturity that would allow him to make a valid and informed assessment of the possible negative consequences of the commodification of his body following the disclosure of sexual images representing him.