GENERAL COMMENT No 7
on ARTICLE 27 of the ACRWC
“SEXUAL EXPLOITATION“
JULY 2021
LIST OF ABBREVIATIONS AND ACRONYMS
ACRWC African Charter on the Rights and Welfare of the Child
ACERWC African Committee of Experts on the rights and Welfare of the Child
ACHPR African Commission on Human and People’s Rights
ART Antiretroviral therapy
AU African Union
CRC Committee on the Rights of the Child
CSAM Child Sexual Abuse Materials
CSEA Child Sexual Exploitation and Abuse
DGD Day of General Discussion
EUROPOL European Police Office
HIV Human immunodeficiency virus
ICTs Information and Communication Technologies
IOT Internet of Things
ILO International Labor Orgnaization
INTERPOL International Criminal Police Organization
NGO Non-governmental Organization
OCSE Online Child Sexual Exploitation
OPSC Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
PEP Post-exposure Prophylaxis STI Sexually transmitted infection
UNGA United Nations General Assembly
General Comment No. 7 on article 27 on Sexual Exploitation of the African Charter on the Rights and Welfare of the Child
Article 27: Sexual Exploitation
1. States Parties to the present Charter shall undertake to protect the child from all forms of sexual exploitation and sexual abuse and shall in particular take measures to prevent
a) the inducement, coercion or encouragement of a child to engage in any sexual activity;
b) the use of children in prostitution or other sexual practices
c) the use of children in pornographic activities, performances and materials.
I. INTRODUCTION
1. The African Charter on the Rights and Welfare of the Child (ACRWC) includes a provision which requires States to protect children from sexual exploitation and abuse. The contents of this article proceed further to oblige States Parties to take measure to prevent the inducement, coercion or encouragement of a child to engage in any sexual activity, the use of children in prostitution or other sexual practices and the use of children in pornographic activities, performances and materials.
2. This General Comment relates to the overall mandate of the African Committee of Experts on the rights and Welfare of the Child (ACERWC/the Committee) to guide State Parties in their obligations towards child victims of child sexual exploitation and abuse (CSEA). They can achieve this only if they clearly know and understand their obligations under the Charter, which entail the obligation to respect, protect and fulfil the rights. The Committee feels the need to clarify and interpret what constitutes CSEA for these purposes, and what States responses should at best be undertaken. There is a strong need to demystify CSEA, taking into account the cultural context of various African Communities. It is widely known that the reality in the region is that the major threat for children is abuse by people that they encounter in person on a daily basis (e.g. family members, teachers and school administrators).
3. The African Union has longed expressed concern, in different forms, about the prevalence of sexual exploitation of women and children on the continent. This has manifested, amongst others, in plans of action to reduce Gender Based violence,(1) end child marriage,(2) and to address impunity for violations committed during peace keeping operations in Africa.(3)
4. In an international context, the Sustainable Development Goals adopted by the UNGA in September 2015 include sexual exploitation as a form of violence. The implementation of the 2030 Agenda for Sustainable Development entails monitoring progress on both the elimination of all forms of violence against women and girls (Target 5.2) and the elimination of all forms of violence against children (Target 16.2). This also forms one of the priority goals for the Agenda 2040 adopted by this Committee in 2015 at the 25th anniversary of the Charter.
5. This General Comment is furthermore grounded in the AU Executive Council Decision which mandates “the ACERWC to scale up its work in safeguarding and promoting the rights and welfare of children in the cyberspace, namely the protection of children’s information, rights to safety, informed choices and digital literacy.” Formerly, the AU had information, rights to safety, informed choices and digital literacy.” Formerly, the AU had adopted the African Union Cyber Security and Data Protection Convention (Malabo Convention) in 2014. The Malabo Convention spells out the options for an African wide cyber security policy. It has four chapters, where chapter 3 deals with promoting cyber security and combating cybercrime. Chapter 3 Section 2 article 29 (3) is an important provision for the topic at hand. It deals with content related offences committed in cyber space concerning children and calls upon State parties to criminalize them.(4) The Malabo Convention can also be used to tackle the challenge of extraterritorial jurisdiction – chapter 3 article 28 deals with this issue (international cooperation and extra-territorial jurisdiction). The African Union also hosted a Global Summit on Online child sexual exploitation in December 2019, in collaboration with We Protect Global Alliance. Similarly, the African Commission on Human and People’s Rights developed
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(1) Maputo Plan of Action 2015-2030 (available at https://au.int/sites/default/files/documents/24099-poa_5-_ revised_clean.pdf).
(2) African common position on the AU campaign to end child marriage in Africa (available at https://au.int/ sites/default/files/documents/31010-doc-cap_on_ending_child_marriage_-english_0.pdf).
(3) African Union Policy on Prevention and Response to Sexual Exploitation and Abuse for Peace Support Operations https://reliefweb.int/report/world/african-union-policy-prevention-and-response-sexualexploitation-and-abuse-peace (December 2018).
(4) The Malabo Convention requires State Parties to criminalise the following (amongst others): (a) produce, register, offer, manufacture, make available, disseminate and transmit an image of or a representation of child pornography through a computer system; (b) procure for oneself or for another person, import or have imported, and export or have exported an image or representation of child pornography through a computer system; (c) possess an image or representation of child pornography in a computer system or on a computer data storage system.
nd issued Guidelines on combatting sexual violence and its consequences in Africa in 2017.(5)
6. At the global level, the CRC Committee adopted a General Comment no 13 on the right of the child to be free from all forms of violence in 2011, and endorsed the “Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse”, adopted by the Interagency Working Group on the Protection of Children from Sexual Exploitation and Abuse (Terminology Guidelines)in Luxembourg, 28 January 2016.
7. The ACERWC hosted a Day of General Discussion (DGD) on ’Online Child Sexual Exploitation’ (OCSE) during its 33rd ordinary session. An increase in internet usage was noted, which comes with a bigger risk of children being susceptible and sexually exploited online.(6) In the region’s context, Covid-19 has exacerbated sexual exploitation due to school lockdowns. Globalization too has resulted in increased connectivity among different groups, across different countries and regions, which contributes to children’s increased access to information but exposes them at the same time to predatory sexual exploiters and abusers.
II. CONTEXTUAL BASIS
8. CSEA is believed to be the lived reality of millions of children in Africa. However, the nature of CSEA and the lack of considered focus on the issue makes updated and comprehensive data regarding its prevalence in Africa difficult to obtain. Frequently it remains unreported due to the high level of stigmatization in society, among other things. It is often rooted in harmful gender stereotypical beliefs and practices, patriarchy and the subordinate position of women and girls. Harmful masculinities caused by negative socialisation, such as the restriction of emotional expression and the pressure to conform to expectations of dominance and aggression, may heighten the potential for boys and men to engage in general acts of violence.
9. CSEA is exacerbated by the culture of silence common in African communities,
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(5) “The Niamey Guidelines(available at https://www.achpr.org/public/Document/file/English/achpr_eng_ guidelines_on_combating_sexual_violence_and_its_consequences.pdf).
(6) Report of the thirty-third ordinary session of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) par 53-54.
and the unwillingness or inability of children to speak out, due to their vulnerability or inadequate reporting and response mechanisms. The actual extent of CSEA remains unknown, as neither a global nor African estimation of its prevalence exists. Although girls are mainly victims, the sexual exploitation of boys appear to be increasing.
10. In addition to physical (contact) and non-physical (non-contact) CSEA, the growth of information and communication technology has introduced the challenge of online CSEA. This is a constantly evolving phenomenon that is shaped by developments in digital technologies. UNICEF’s 2017 State of the World’s Children Report specifically targeted children in a digital world. Noting that the lives of children are mediated by the digital environment in ways that impact how they can enjoy their rights and how their rights may be improved or transgressed, it is clear that the effect of the digital environment for children needs to be considered in the context of rights set forth under the African Charter on the Rights and Welfare of the Child. The relevant rights include not only children’s rights to protection from all forms of violence, but also their rights to participation and provision. In the absence of proper mechanisms of protections, thus, children will be susceptible to greater online risks of harm. OCSE reflects the dangers that children have been facing in their homes, schools, communities and the society at large. This General Comment offers the possibility to extend the understanding of the implications of article 27 of the ACRWC to the online world of CSEA.
11. However, as the ACHPR has recorded, sexual violence remains widespread both in time of conflict and crisis, and in times of peace. It takes place in public, in the street and on public transportation, but also in private, in schools, in the workplace or in intimate relationships. ‘Sex for grades’ scandals in educational systems continue to surface at an alarming rate.
12. The statistics reflected are alarming: in Sub-Saharan Africa almost 39 per cent of girls are married before the age of 18. In certain African countries, up to 95 per cent of girls are the victims of genital mutilation; more than 70 per cent of women report having been the victims of domestic violence, including sexual violence; and more than 90 per cent report having been the victims of sexual harassment and not feeling safe in public places. In addition, in several countries where conflict prevails, in several countries where conflict prevails, rape and other forms of sexual violence are used on a wide scale. Globally, 120 million girls are estimated to have suffered some form of sexual violence.(7) A 2018 report indicates that in Africa, a third of girls suffer sexual violence, and that this is often repeatedly experienced. It crosses all social classes.(8) A six country study showed that sexual violence takes place across the age range. Of the girls who suffered sexual violence, a median of 19% across the six countries experienced this for the first time at the age of 13 or younger, 36% at ages 14‐15 and 43% at ages 16‐17.
13. The growth of travel and tourism in Africa have increased the prevalence of CSEA, which implies that higher levels of vigilance and improved safeguarding practice need to be put in place. The levels of conflicts and crises in various countries in Africa has also been a fertile ground for CSEA, such as where girls are kept as “sex slaves” and wives of fighters. CSEA is also a challenge for children living in refugee camps as well as children in street situations. Girl children are expectedly at higher risk than boys. In the online space, one recent international study(9) relating to online sexual exploitation found that among the 72.5% of cases where victims of gender exploitation were documented, 64.8 per cent of unidentified victims were girls, and 31.1% depicted male children. It has been highlighted that while most victims of sexual abuse and exploitation are girls, the substantial proportion of boys depicted in unidentified images and videos in the International Child Sexual Exploitation Database (ICSE, hosted by Interpol) calls closer attention to this group. When boys were depicted in the abuse, it was more likely to be severe. Even though current evidence suggests that girls are disproportionately at risk of online sexual abuse and exploitation, there is a need to better understand the vulnerabilities of boys in the online context. The age profile of victims in the ICSE database (in case where the unidentified victim’s age could be determined) shows that 56.2% of cases depicted prepubescent children, 25.4 % were pubescent children, and 4.3% were very young children. There is an evident link between the age of the victim and the severity of abuse; the abuse was more likely to be severe when victims were younger. Very young children were more likely to be subjected to abuse and exploitation than pubescent victims.
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(7) UNICEF Global Status Report on preventing violence against children 2020.
(8) Big Win (2018) Violence against children: A review of evidence relevant to Africa on prevalence, impacts and prevention. Reporting on six country studies, the report notes that one in seven girls have recently experienced sexual violence. The median prevalence of sexual violence experienced recently among 13‐17 year‐olds is 15% for girls and 6% for boys. The percentages for girls range from 11% in Kenya to 23% in Malawi. The figures for boys are much lower, from 2% in Zimbabwe to 12% in Malawi.
(9) By ECPAT and Interpol, the findings of which were presented at the ACERWC Day of General Discussions. See Report of the thirty-third ordinary session of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) par 61.
14. Another important challenge in Africa is the lack of a consistent, comprehensive and agreed legal framework that specifically addresses all of the issues concerning CSEA; usually the issue is subsumed under sexual violence, but it is often scattered in different laws, leading to a piecemeal approach. Unless the different issues/crimes are specifically named and defined, their perpetrators cannot be held accountable. Legal frameworks are often infused with gender stereotypical understandings of sexual violence, which hampers the comprehensive protection of girls and boys. A dedicated section of this General Comment is devoted to legal responses to CSEA.
15. There is also a challenge of the limited focus on prevention on the continent. Furthermore professionals may not always identify or register concerns around CSEA. Professionals seldom have adequate training, including on child development, trauma, memory, interviewing of children, disclosure, how to solicit children’s evidence and the nuances of children’s behaviour during criminal justice interventions. Lack of social support services such shelters and psychological treatment to mitigate the impact of sexual exploitation and abuse is another challenge. Many countries do not have child and adolescent friendly health services (including trained healthcare professionals) that provide services to victims. This includes the provision of emergency contraceptives and safe abortion services which are important to address resulting pregnancies. Restrictive laws that do not allow victims of violence to access safe abortions; put age-based restrictions for accessing reproductive health services; require parental consent to access to these services; and place reporting the sexual violence to law enforcement authorities as a requirement to accessing the health services and viceversa all contribute to the problem.
16. There is a severe risk of secondary trauma being suffered by child victims and witnesses, in part due to the absence of adequate protective mechanisms under procedural law to prevent this.
17. For much of the continent, entry into the digital world has been relatively fast without the time for countries to develop and evolve their educational and support services, law enforcement and regulatory responses. There has been a rapid increase in mobile device ownership and internet access, which amongst other is facilitating greater use of online gaming, cashless payments, e-commerce and Internet of Things (IOT) devices such as baby monitors, internet-connected toys, and webcam-enabled devices. These developments have occurred rapidly, leaving legislators and regulators little time to develop responses. A practical impediment, further, is the fragmented nature of each nation’s online safety response, typically spanning policing, social services, regulation and education. WeProtect notes that technological development continues to outpace the ability of governments to support, educate and regulate the technology sphere, and that is most profound in, but not exclusive to, the Global South, where large numbers of users are achieving device ownership and internet access in a context where such factors as poverty and inequality heighten children’s exposure to sexual exploitation.(10) There is a gap in holding internet service providers accountable, as some countries have no specific obligation to report child sexual abuse material (CSAM) to authorities for investigation and there is no consistent definition of what constitutes CSAM. There is a very poor culture of cyber security. There are few African States who have enacted laws to protect themselves from cyber insecurity and often they do not implement them unless they face cyber-attacks; they are reactive rather than proactive. There are also 30 States in Africa who have no law or policy on cyber security, not even a draft. Furthermore not all countries in Africa have set up cybercrime law enforcement units. Some countries remain to ratify the UN CRC Optional Protocol on the sale of children, child prostitution and child pornography.
III. PURPOSE
18. The main purpose of this General Comment is to expound upon the nature of the State’s obligations under section 27 of the Charter to prevent, combat, and protect children from sexual abuse and exploitation, including both offline sexual exploitation and OCSE. The ACERWC recognises that NGOs and civil society are often at the forefront of efforts to combat and provide redress for victims of CSEA; some recommendations that follow implicate these organs of society, however, the primary obligations incurred under article 27 rest on State Parties to the Charter.
I V. DEFINITIONS AND CONCEPTUAL CLARIFICATIONS
19. CSEA, as contemplated in the heading to article 27, includes any actual or attempted abuse of a position of authority, differential power or trust, for sexual purposes,
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(10) We Protect “Global Threat Assessment” (2019), p 34 available at https://www.weprotect.org/
including but not limited to profiting monetarily, socially or politically from the sexual exploitation of another. Sexual exploitation of children can be commercial or non- commercial. It may include exploitation of children in prostitution, the use of children in pornography, child trafficking for sexual exploitation and child marriage.11 Exploitation of children in prostitution has been deemed to be one of the worst forms of child labour for the purposes of ILO Convention 182 of the worst forms of child labour.(12) According to CRC Committee General Comment no 13 on Freedom from all forms of Violence, the use of children in commercial sexual exploitation; the use of children in audio or visual images of child sexual abuse; the use of children in prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes as well as forced marriage are subsumed in this definition, but this is not a finite list. CSEA can amount to a form of torture or cruel, inhuman, or degrading treatment.(13) CSEA committed during armed conflict has been held to constitute a war crime,(14) a crime against humanity, or a constitutive act with respect to genocide.(15)
20. Sexual abuse is a subcategory of CSEA. Sexual abuse is traditionally defined as ‘actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions’. “Child sexual abuse has been defined as the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Many children experience sexual abuse which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic. It incorporates both contact and non-contact sexual activity, and may take place in person or virtually. The sexual abuse of children requires no element of exchange and can occur for the mere purpose of the sexual gratification of the person committing the act, whereas the sexual exploitation of children can be distinguished by an underlying notion of
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(11) These are terms used in the text of article 26, although it is recognised that they are increasingly criticised as stigmatising, and are being replaced with alternatives: See the Terminology Guidelines (2016) referred to earlier.
(12) Terminology Guidelines p 18.
(13) Terminology Guidelines p 16.
(14) See Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06 OA5, Judgment, 1-2 (June 15, 2017), https:// www.icc-cpi.int/CourtRecords/CR2017_03920.PDF.
(15) The Statute of the Special Court of Sierra Leone lists rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence as a crime against humanity (article 2(g)), and Article 3(e) lists outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault as serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.
xchange.(16) Both contact and non-contact forms of sexual abuse are harmful and can result in long term negative impacts on the child.
21. “Sexual abuse/activity” includes both explicit and non-explicit sexual activities that cause harm, such as penetration, or acts that harm the sexual integrity of the child, such as lascivious exhibition of children’s genitals.(17) Sexual touching of a child is a form of sexual abuse. While the term “sexual touching” can of course have positive connotations when referring to adult consensual sexual relationships, it refers to abusive acts when committed on children, except where both parties are children over the age of sexual consent and the touching is consensual.(18)
22. “Grooming” means befriending and establishing an emotional connection with a child, and sometimes the family, to lower the child’s inhibitions with the objective of sexual abuse. Enticement of children is sometimes used as a synonym of the “solicitation of children for sexual purposes” or “grooming”.(19)
23. “Sexual harassment” is any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment.(20)
24. “ICT” for the purposes of this General Comment, encompasses any communication device or application, including radio, television, cellular telephones and computer and computer networks, including both hardware and software.
25. “Safeguarding” refers to the actions taken and measures and procedures put in place to protect children from harm and prevent any abuse.
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(16) Terminology Guidelines p 18.
(17) Terminology Guidelines p 15.
(18) Terminology Guidelines p 21.
(19) Terminology Guidelines p 51. 20 Terminology Guidelines p 21.
26. “Due diligence” means the totality of the obligation on the State to take responsibility for preventing CSEA, prosecuting and punishing perpetrators, and protecting and providing redress for victims.
27. “Age of maturity” for the purposes of this General Comment is the age below which a child is regarded as being incapable of consenting to sexual intercourse.
28. “Age of sexual consent” is the age established by law at which age a person is deemed to be able to express informed consent to engage in sexual activity. Many argue that the age of sexual consent should mirror the age of marriage, despite considerable evidence of adolescents below the age of 18 engaging in sexual activity.
29. “Age of consent to marriage” is the age at which a person is legally regarded as competent to provide free, full and informed consent to marriage, and according to the African Children’s Charter should be specified to be a minimum of 18 years.
30. “OCSE” means online child sexual exploitation. Reference to OCSE includes all acts of a sexually exploitative nature carried out against a child that have, at some stage, a connection to the online environment. It includes any use of ICT that results in sexual exploitation or causes a child to be sexually exploited or that results in or causes images or other material documenting such sexual exploitation to be produced, bought, sold, possessed, distributed, or transmitted.(21)
V. GENERAL NATURE OF STATE OBLIGATIONS
31. Article 27 of the Charter requires States Parties, in particular, to take all appropriate national, bilateral and multilateral measures to protect children from all forms of sexual exploitation and sexual abuse and prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.”
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(21) Terminology Guidelines p 27.
32. The scope of applicability of this General Comment is to all persons aged below 18 years, in accordance with the definition of a child in the Charter. Implementation of article 27 in the context of the Charter as a whole involves taking a wide range of measures to provide protection, enhance access to quality basic social support and health services and to justice, and improve the overall safety and wellbeing of every individual child. Implementation covers the process whereby governments take the necessary legal, policy, budgetary, administrative and other appropriate measures to ensure the full realisation of all children’s rights stipulated in the CRC, the African Children’s Charter and other relevant national, regional and international human rights laws and instruments pertaining to children, to ensure the wellbeing of all children.(22) Whatever their economic circumstances, States Parties are required to undertake all possible positive measures towards the realization of the rights of the child contained in the African Children’s Charter, paying special attention to the most disadvantaged and marginalised groups.
33. The obligation contained in article 27 is one that is capable of immediate fulfilment, and is not subject to the availability of resources or to progressive realisation. The ACERWC expects that States Parties show rapid progress in extending the reach and impact of rights and protections contained in article 27, with a special focus on the most marginalised and excluded groups. State Parties are further reminded that any retrogressive measures, which dilute or cut back on rights and protections already enjoyed, are regarded as being contrary to international law, unless, during times of significant recession or emergency, sound justification can be provided and the previous position re-established as soon as circumstances permit.
34. The obligations in article 27 are reinforced by those contained in article 16, which deal with the protection of the child from all forms of torture, inhuman or degrading treatment and abuse, including sexual abuse.
VI. KEY PRINCIPLES UNDERLYING THE IMPLEMENTATION OF ARTICLE 27
6.1. Best interests of the child
35. Article 4 of the ACRWC requires that States have the obligation to take into consideration the best interests of the child in implementing the Charter. It is in children’s best interests
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(22) ACERWC General Comment No 5 (General Measures of Implementation of the Charter and systems strengthening for child protection), par 2.1
that States take all necessary measures to prevent all forms of sexual violence and its consequences, particularly by eliminating the root causes of that violence, including sexist conceptions and remarks, patriarchal preconceptions and stereotypes about women and girls, preconceptions and stereotypes based on gender identity, certain preconceptions of masculinity and virility.(23) Ending child marriage/union, which has been regarded as synonymous with sexual violence,(24) is a key obligation in the bests interests of children.
36. The obligation to protect and guarantee children’s best interests extends to the adoption of adequate legislative and regulatory measures, and to prompt, adequate and diligent responses by all stakeholders to complaints of violations received. Psychosocial support to victims and redress for infringements are also part of ensuring children’s best interests.
37. States must ensure that the potentially negative consequences for victims and witnesses, of procedures to investigate acts of sexual violence and efforts to prosecute perpetrators, are reduced as much as possible. The principle of “do no harm” must be uppermost,(25) and States must adopt the necessary legislative and regulatory measures to act with due diligence to prevent and investigate acts of sexual violence committed by State and non-State actors, prosecute and punish perpetrators, and provide a remedies to victims. The necessity of the due diligence principle in pursuing sexual violations has been emphasised by this Committee in the Cameroon case.(26) In cases where the violence has already occurred, the Committee requires that Governments undertake exhaustive investigations and ensure that commensurate compensation is rewarded to the victims.(27)
38. As contemplated in this Committee’s General Comment no 5 (General Measures of Implementation and Systems strengthening for child protection), child protection systems which contain the full array of measures to prevent and respond to child abuse,
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(23) African Commission on Human and Peoples’ Rights “Niamey Guidelines on combatting sexual violence and its consequences in Africa” p 18.
(24) The African Union’s Goodwill Ambassador on Ending Child Marriage Nyaradzayi Gumbonzvanda has argued this: https://www.devex.com/news/devexplains-do-we-need-a-new-term-for-childmarriage-90039.
(25) Niamey Guidelines p 17.
(26) The Institute for Human Right and Development in Africa and Finders Group Initiative on behalf of TFA (a minor) V. The Government of Republic of Cameroon No. 006/Com/002/2015.
(27) As above, par 45.
neglect and sexual exploitation are integral to the implementation of the Charter, in the best interests of all children. This includes support services to victims, such as psychological treatments, health services and shelters, and redress for infringements are also part of ensuring children’s best interests.
6.2. Non-discrimination
39. Article 3 of the ACRWC enshrines children’s rights to be free from discrimination. Therefore, States Parties must take the necessary measures to ensure that the rights of the child victims of sexual violence are guaranteed, irrespective of their race, colour, national origin, citizenship, ethnicity, profession, political opinions, and any other opinions, and health including HIV status, disability, age, religion, culture, marital status, socio-economic status, status as a refugee, migrant, or any other status, sex, gender, or any other factor that could lead to discrimination against them.(28)
40. The non- discrimination principles includes that targeted measures shall be taken to provide protection to those who are most vulnerable to being victims of sexual violations, including children with a disability, children in care institutions, children in conflict situations, children in street situations, and displaced and migrant children. That girl children are at heightened risk is axiomatic, but States should also ensure that responsive measures are tailored to, and cater for, boy children when they report sexual violations. States should, in accordance with article 11(6) of the Charter, ensure that girls who become pregnant are enabled to complete their education.
6.3. Survival, life and development
41. States must ensure that investigations into acts of sexual violence and the prosecution of the perpetrators of sexual violence against children are carried out without unjustified delays; independently, impartially and effectively; and in a manner that will lead to the identification and sentencing of the perpetrators.(29) Victim’s rights should at all times be upheld, guaranteeing their wellbeing and safety. Remedial services to ensure the full psychological and physical recovery of child victims is essential to ensuring their survival and development. The right to health under the African Children’s Charter and other regional and global human rights instruments includes reproductive health. Thus,
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(28) Niamey Guidelines p 17.
(29) Niamey Guidelines p 18.
post exposure prophylaxis and access to anti- retroviral treatment at no cost must be made available, and access to confidential sexual and reproductive health services, including termination of any pregnancy caused by sexual violations, must be regarded as essential right in ensuring victims’ survival and development.
42. As this Committee has previously noted, such practices as trafficking in children, sexual exploitation, child marriage, which give rise to sexual exploitation, are less likely to occur, and easier to prevent, when effective birth registration systems are in place.(30) State Parties are therefore urged to expedite the development of free, universal and accessible birth registration systems. 6.4. Participation of children
43. Article 4 (2) of the Charter requires that children be given the opportunity to be heard during judicial and administrative proceedings, and that their views are taken into consideration. The Charter also requires that children are informed of their rights in an age-appropriate manner, that children have the right to express their views freely in all matters affecting them, and that such views are given due weight in accordance with the age and maturity of the child. Child victims of sexual violations should be afforded legal advice and where appropriate, legal representation at no cost to enable them to assert their rights.
44. Child participation is to be implemented at all stages of the process of responding to complaints of violations of rights, from the time of first reporting, to the provision of health services, to investigative processes and subsequent criminal and civil actions.(31) Children should also be engaged in the design and implementation of support services such as health care services.
45. States parties should make efforts to include child participation in drafting processes and policy development, and in the implementation of legislative and policy measures, ensuring that the views of children are considered without discrimination.
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(30) ACERWC General Comment no 2 par 18.
(31) Civil actions could include claims for damages and reparations, applications for protection orders, interdicts, and so forth.
46. It goes without saying that child victims should be afforded the maximum assistance when participating in criminal and civil justice processes, such as having recorded testimony presented, through victim impact statements, and through other measures designed to facilitate their optimal participation.
6.5. Evolving capacity
47. It must be noted that there is no international treaty that establishes a legal age for sexual activities. The ACRWC, CRC, the OPSC, and ILO C182 are silent with regard to the age of sexual consent, leaving it up to the States to establish this age.(32) The establishment of an age of consent relates, to protective goals, recognising that very young children are incapable of consenting to sexual acts (below the age of maturity), and that older adolescent children must be protected from predatory adults. Globally, at least half of all adolescents are sexually active before turning 18 and in Africa, most adolescents engage in sexual intercourse for the first time between the ages of 15 and 18. A significant number of adolescents are having sexual intercourse by the age of 17 on the continent.(33)
48. Even though children need to be protected from sexual abuse and exploitation, it needs to be acknowledged that adolescents often times start exploring their sexuality and engaging in consensual sexual activity with their peers before they turn 18.
49. The legal age of sexual consent varies between countries, although many set the age of sexual consent at between 14 and 16 years of age.(34) Many national legal
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(32) The CRC Committee has addressed this issue in General Comment no 16 on the Rights of the child during adolescence: [40] ….. States parties should take into account the need to balance protection and evolving capacities, and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.
(33) Godfrey Kangaude “Policy brief challenging criminalisation of adolescent sexuality in Africa” Accountability International (not dated). According to MacQuarrie K, Mallick L, and Allen C. Sexual and reproductive health in earlyandand later adolescence: DHS data on youth age 10–19. DHS comparative reports No. 45. Rockville, MD: ICF, 2017, sexual debut occurs during adolescence for most women in all West African, Southern and Middle African, and in most countries in East Africa. Women’s youngest median age at sexual debut appears in Mozambique (16.1), Chad (16.5), Congo (16.3), Liberia (16.2), and Niger (16.2). The highest adolescent median age of Africa countries in this study is Gambia and Burundi (19.8). In Comoros and Rwanda, sexual debut is not a part of women’s adolescent experience (p 19).
(34) Terminology Guidelines p 19. The age at which a person is considered mature enough to consent to receiving health services related to sex and reproduction without a guardian is in many States tied to the age of sexual consent. The higher the age of sexual consent, the more barriers exist in accessing sexual health services before that age. Having to obtain consent from a guardian or a parent to access services related to sexual health is a hurdle many adolescents will choose to avoid. This provides an argument for not making the age of sexual consent unduly high.
systems make a distinction between sexual relations among peers (under 18) and sexual relations between a child and an adult. Equally, many countries do not, leading to the prosecution and imprisonment of children, usually boys, for consensual sexual activities.
50. To acknowledge the evolving capacities of the child, and the fact that children who have reached the age of maturity have the right to engage in sexual relationships (provided these are not exploitative or abusive), many countries have introduced an exception to the obligation of State Parties to criminalise certain conduct. This entails decriminalisation of peer to peer consensual sexual conduct, provided that the child is above the age of maturity, and the adolescents are close in age. In line with this, State Parties should decriminalize consensual, non-abusive and non-exploitative sexual activities among child peers. Some States apply a “close-in-age” exception to age of consent provisions (sometimes known as the “Romeo and Juliet defence”) where one or both participants are under the age of consent. This exception is usually available as a defence to child sexual assault charges to avoid criminalising genuinely consensual sexual activity between young people who are close in age. This applies, for example, where one person is 16 years and the other is only a few years older, e.g. 2–5 years, provided there is no relationship of trust, authority or dependency between the two people.(35) Sexual activity between adolescents is not as such harmful, as long as both adolescents give informed consent and have access to sexual and reproductive information and services.
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(35) In 2015, South Africa introduced an amendment to the Criminal Law (Sexual Offences and related matters) Amendment Act 32 of 2007, that allows adolescents aged 12 to 15 to engage in consensual sex with peers of the same age, or between the age of 16 to 17 if there is no more than a 2-year age difference between them. Prior to this, the law allowed prosecution of adolescents engaging in consensual sex. In a Constitutional challenge, it was argued that the law had various harmful effects on adolescents, such as exposure to the criminal justice system, and a negative effect on their understanding of, and healthy attitudes towards, sexuality. The challenge succeeded. Namibia, similar to South Africa, has implemented an age of consent to sexual activity and reproductive health services of 14 years. In addition, the country has adopted a ‘close in age’ exception in the Combating of Rape Act, preventing prosecution of adolescents having consensual sex if the younger person is under 14 years and the older person is not more than 3 years older (Zimbabwe report p 6). In High Court of Kenya at Nairobi, Eliud Waweru Wambui v Republic (2019), the High Court called for a national discussion on the ‘age of discretion’, and overturned a conviction for defilement of a girl purportedly 17 years and 5 months. In Mauritius, Zimbabwe and Malawi the age of consent is set at 16 years, in Burundi, Eritrea and Ethiopia at 18 years, and In Madagascar it is 14 years. Allegedly the age of consent in Nigeria is 11 years. These are some examples. However, the pluralistic nature of legal systems which recognise customary law is a variable that can make a determination of the age difficult. Many countries have different ages for boys and girls. See Harmonising the legal environment for Adolescent sexual and reproductive health rights (UNFPA 2017) in general, though some of their facts are disputed.
51. In general, criminalising adolescents as sexual offenders does not prevent them from engaging in sexual activity – it merely drives it underground. It can serve to prevent them from accessing education, and sexual and reproductive health services. This can, in turn, lead to higher unsafe abortion rates, STDs and unwanted pregnancies. Mandatory reporting systems should also not interfere with adolescent right to reproductive health services.
52. Beyond this, the age of sexual consent as defined by law must mean that adults engaging children below that age in sexual activities is prohibited under all circumstances, and that the consent of such a child is legally irrelevant. It should be criminalised. For age of consent laws to meet human rights standards, they must at the very least be nondiscriminatory and equal for everyone, regardless of the gender, disability status, and marital status of those involved.(36)
53. In contrast, sexual activity between adolescents is not as such harmful, as long as both adolescents give informed consent and have access to sexual and reproductive information and services.
54. In general, criminalising adolescents as sexual offenders does not prevent them from engaging in sexual activity – it merely drives it underground. It can serve to prevent them from accessing education, and sexual and reproductive health services. This can, in turn, lead to higher unsafe abortion rates, STDs and unwanted pregnancies. State parties should therefore carefully construct criminal justice systems which take account of these concerns.
55. A child acting in the online environment is not different from a child offline, and her/his right to access certain online services without parental consent may well be allowed before the child turns 18; even though all young persons under the age of 18 years are entitled to special protection, this must necessarily be balanced against the child’s right to information, and his or her right to participation when engaging with the digital world, also in the context of evolving capacity of the child.
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(36) Good Practice Guide in Human Rights Compliant sexual offence laws 2017 par 10.11.
6.6 Interdependence and indivisibility of the rights within the African Children’s Charter (article 16, article 21 in particular)
56. As has been noted in previous General Comments of the ACERWC,(37) Charter rights are interdependent, indivisible and mutually reinforcing. Closely related to article 27 of the Charter are articles 16 and 21.
57. Article 16 provides protection to the child against all forms or torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse. States are required to take specific legislative, administrative, social and educational measures to protect the child from all forms of these. Protective measures, under article 16(2), shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and those who have the care of the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow up of instances of child abuse and neglect. 58. This array of measures is equally relevant to CSEA. Two main strands can be discerned: victim support services (which include psychosocial support, medical and health services support, and avenues for redress and compensation(38) for victims). The second is specialised detection, investigative and follow up units, requiring dedicated and well trained staff with modern era skills and competencies.
59. Article 21 (39) of the Charter is also implicated, for two reasons: first, the general injunction to States Parties to eliminate harmful social and cultural practices affecting the welfare, dignity normal growth and development of the child is implicated by harmful practices around sexual exploitation generally, and by social practices around children’s which may include sexualised dimensions. Second, article 21(2) prohibits marriage of boys and girls whilst aged below 18, and child marriage constitutes a form of (sexual) violence against children. In addition, the rights contained in Article 3 (non-discrimination) and article 14 (the right to health) are implicated, as highlighted in the text above.
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(37) General Comment no 5 on “State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and systems strengthening for child protection”, par 5.3.1.
(38) See the finding of the ACERWC in The Institute for Human Right and Development in Africa and Finders Group Initiative on behalf of TFA (a minor) V. The Government of Republic of Cameroon (no 006/Com/002/2015).
(39) See Joint ACERWC and ACHPR General Comment on ending Child Marriage no 3 of 2018.
6.7. Role of parents and other care-givers
60. Article 20 of the Charter provides for parents or other persons responsible for the child to have the primary responsibility for the upbringing and development of the child, concomitant with ensuring their best interests. States parties are to assist parents in the fulfilment of their duties. This is most directly relevant to children’s online activity which occurs largely in the confines of personal space such as the home or in educational settings.
61. Ordinarily, parents and other caregivers act in the best interest of their children, in the exercise of their child rearing function. However, there can be a tension between the exercise of parental responsibility and the duty to guide children in their behaviour, and children’s right to freedom of expression and to privacy, as well as their evolving capacity and need to engage increasingly with the adult world as they near the end of childhood. Managing these tensions requires sensitive approaches. Parents should be equipped to educate and advise their children about online safety, rather blocking children from entering the online space altogether, as increasingly the online and offline domains are intertwined and not easily separated. Nevertheless, States parties must play a supportive role to enable parent to fulfil their obligations, including with educational programmes and easy to use guides for parents.
62. Moreover, many African parents are ill-equipped to intervene in matters related to cyberspace, due to the generational divide. Hence an added duty rests on State Parties to assist parents and caregivers to provide guidance to their children about online sexual predatory and inappropriate or risky behaviour and the forms that is may take. Children too should be provided with educational programmes about how to safely use and interact with cyberspace. Life skills programmes in educational settings should include a component related to this.
63. In the case that the alleged perpetrator of CSEA is a parent, a family member, another child in the family or a primary caregiver, any measures should involve careful consideration of the fact that a child’s disclosure should not worsen her or his situation and that of the other non-offending members of the family, and should not aggravate the trauma experienced by the child. For many reasons, child victims who allege sexual abuse by parents or caregivers should not be interviewed in their presence. For instance, there is a concern that prevailing taboos in Africa about talking about sexual behaviours may play an inhibiting role, or that parents or caregivers could intervene to prevent a child’s accurate testimony.
64. Furthermore, in the above situations, the Committee encourages States parties to consider removing the alleged perpetrator rather than the child victim, since removal can be experienced by the child as a punishment, unless there are circumstances which indicate that removal of the child victim is in his or her best interests.(40) Criminal justice actors should consider whether the pre-trial release of any offender who is a member of the child victim’s household will put in jeopardy the child’s safety.
VII. CONTENTS OF THE RIGHT
7.1. Inducement, coercion and encouragement of child to engage in any sexual activity
65. Physical coercion of children is a common characteristic of forced sexual activity, which is an extreme manifestation of gender based violence. But coercion can also be the result of psychological pressure, undue influence, detention, abuse of power or someone taking advantage of a coercive environment, or the inability of an individual to freely consent.(41)
66. States Parties must take all measures that have been proven to be effective in reducing exposure to inducement and coercion of children to engage in sexually exploitative activities, and preventing it from occurring. Many of these steps are outlined in detail in the remainder of this General Comment, including through gender sensitive urban planning, provision of safe learning and leisure environments, education and awareness raising, girls’ empowerment and so forth.
67. There is an expressed need to describe the ‘in kind’ element of commercial sexual exploitation, taking into account the cultural context of various African Communities. ‘In kind’ rewards for sexual services can include food and supplies, humanitarian donations, as well as clothes, personal accessories, and even airtime and data.
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(40) CRC Guidelines OPSC par 97.
(41) Niamey Guidelines page 14.
68. Inducement and encouragement can take many forms, including by propagating transactional sexual violations ( ‘in kind’ sexual exploitation), and grooming of children so that their resistance to unwanted sexual violations weakens and dissipates. Child grooming (or solicitation of children for sexual purposes) (42) is also regularly used to lure minors into various illicit businesses such as child trafficking, child prostitution, or the production of child sexual abuse material. “Localised grooming” is a form of sexual exploitation – previously referred to as “on street grooming” in the media where children have been groomed and sexually exploited by an offender, having initially met in a location outside their home. This location is usually in public, such as a park, on the street or at a friend’s house. One abuser might present himself as the “boyfriend”; this person abuses this position by arranging for the child to have sex with other members of the peer group.
69. The impact of grooming in the context of CSEA can be extensive: it often results in non-disclosure by the child as he or she feels that he or she has actively contributed to the situation; and it leads to well documented feelings of shame and lack of self worth/self-blame, which can endure for years. Criminal Justice professionals and other responders to reports of sexual violations should be made fully aware of these aggravating factors.
70. Sexual grooming of children also occurs on the Internet. Some abusers will pose as children online and make arrangements to meet with them in person. Online grooming of children is most prevalent within the 13–17 age group (99% of cases), and particularly 13–14 (48%). The majority of targeted children are girls (though boys are also at risk), and most victimisation occurs with mobile-phone support.(43) This can be prevented not only on platform level but also on the point of entry; therefore it is recommended that parents and teachers establish safe environments for their children to use the Internet, to reduce the risk of children encountering cyber grooming individuals.
71. Acts which tend towards grooming may constitute an offence, for instance, where it involves the production and dissemination of child sexual abuse material. Offenders may also convince a victim to migrate from offline to online platforms, or between online platforms in the grooming phase, to evade detection.(44)
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(42) Terminology Guidelines p 52.
(43) As above. 21
(44) Voluntary principles March 2020 principle 3.
72. An image, depiction or recording of a child online remains that of a child even when the person depicted has moved into adult age.(45) Offences can be committed both online and offline, such as where grooming potential child victims takes place online, with a view to exploiting them sexually, even though the acts that follow are then carried out offline.
7.2 The use of children in prostitution or other sexual practices.
73. “Sexual exploitation of children in/for prostitution” is frequently referred to as “child prostitution”.. This form of exploitation consists of a child performing a sexual act in exchange for (a promise of) something of value (money, objects, shelter, food, drugs, etc). It is not necessarily the child who receives the object of exchange, but often a third person. Moreover, it is not necessary that an object of exchange is actually given; the mere promise of an exchange suffices, even if it is never fulfilled.(46)
74. The term “child prostitution” does not accurately cover what really happens to the child and could be interpreted as implying that it represents a legitimate form of sex work, or could contribute to shifting the blame onto the child. The Committee encourages State Parties to avoid the use of the term “child prostitution” as much as possible, and to use instead the term “sexual exploitation of children in prostitution”. It is a form of sexual exploitation of children. The acts of offering, obtaining, procuring or providing a child for prostitution should be criminalised, whether committed for remuneration or for any other form of consideration.(47) Criminal law should extend to include prohibitions on children being advertised for prostitution through websites or mobile phone applications. However, children who are victims of sexual exploitation in prostitution should never be subject to criminal justice processes or sanctions.
75. Relationships in which sexual acts are exchanged for cash, goods or benefits, often linked to economic survival or opportunities, educational achievement or social status involve children below the age of 18 are a form of exploitation of the child, on the basis that children cannot legally consent to engaging in commercial or commodified sexual activities which include a remuneration or any other form of consideration (the exception being the normal exchange of gifts amongst adolescents involved in consensual and
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(45) Terminology Guidelines p 23.
(46) Terminology Guidelines p 29.
(47) CRC OPSC Guidelines Par 56.
on-exploitative sexual relationships with peers, as provided for above).(48) Any potential argument of the offender that the child consented to this form of sex is legally irrelevant.(49) A child does not under international law have the capacity to consent to her or his own sexual exploitation. Therefore terms such as “voluntary child prostitution”, “transactional sex” and “child sex workers” should be avoided, as they obscure the exploitation at stake.
76. The AU and this Committee takes the stance that as regards peacekeeping missions, sexual activity involving children of the local population, participants and/or beneficiaries of assistance is prohibited, regardless of the age of majority or age of consent locally. Mistaken belief as to the age of a child is not a defence. Moreover, in the same context all sexual exploitation is prohibited, since it is based on inherently unequal power dynamics, and such relationships undermine the integrity and credibility of Mission Personnel, Peace Support Operations and the AU at large.(50)
7.3 The use of children in pornographic activities, performances and materials (51)
7.3.1 Child sexual abuse material
77. “Use of children in pornographic performances and materials”, “child sexual abuse material” and “child sexual exploitation material” are terms nowadays preferred to child pornography. They include as any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.(52) States parties should ensure that the relevant provisions of their criminal or penal codes cover all forms of material, whether
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(48) “Transactional sex” means sexual relationships where the giving of gifts or services, such as rent, phones, clothes, drinks, drugs, grades, or education, support to the family and employment is an important factor. Transactional sex relationships are distinct from prostitution, in that the exchange of gifts for sex includes a broader set of (usually non-marital) obligations that do not necessarily involve a predetermined payment or gift, but where there is a definite motivation to benefit materially from the sexual exchange: African Union Policy on Prevention and Response to Sexual Exploitation and Abuse for Peace Support Operations (2017) p5.
(49) CRC Guidelines OPSC par 58.
(50) African Union Policy on Prevention and Response to Sexual Exploitation and Abuse for Peace Support Operations (2017) p11.
(51) Terminology Guidelines p 30 notes that this wording is preferable to that of the CRC (term used in the CRC is the “exploitative use of children in prostitution”, which might be understood suggesting that there also being a non-exploitative use of children in prostitution.
(52) CRC Guidelines OPSC par 60.
offline or online. “Any representation, by whatever means” reflects the broad range of pornographic material available in a variety of media, which depict children in a manner intended to sexually arouse or gratify the user. This includes, but is not limited to, visual material such as photographs, movies, drawings, and cartoons; audio representations; live performances; written material in print or online; and physical objects such as sculptures, toys, or ornaments.53 “Simulated explicit sexual activities” includes any material, online or offline, that depicts or otherwise represents a child appearing to engage in sexually explicit conduct. States parties are to include in their legal provisions regarding child sexual abuse material a prohibition of any representations of non-existing children or of persons appearing to be children, in particular when such representations are used as part of a process to sexually exploit children.54
78. State Parties should ensure that the producing, distributing, disseminating, importing, exporting, offering, selling or possessing, for the purposes of sexual exploitation of child sexual abuse materials, as well as ensuring that save for clearly defined professional purposes, mere possession is also made a criminal offence. Even where child sexual abuse materials are not ‘possessed’ – such as where they are live streamed or viewed on a webcam show in real time – a criminal sanction should be provided for. Penalties indicative of the severity of the offences should be spelled out by law to guide sentencing officers. Civil forfeiture of equipment, premises, monies received and so forth should be a routine reaction by law enforcement authorities. 79. There is no international uniformity about whether child erotica, ie material which represent a child’s (semi-) nudity or erotic posing with no explicit sexual activity or display of the sexual organs of a child, but which sexualises the child directly or indirectly but, constitutes child abuse material.55 The Committee is of the view that State parties are advised to outlaw child erotica in their definition of child sexual abuse materials, because the they underpin the belief of some persons that the sexualisation of children is normal.
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(53) Terminology Guidelines p 36.
(54) CRC Guidelines OPSC par 62 and 63, IWG p 41: Computer-generated child sexual abuse material is the production, through digital media, of child sexual abuse material and other wholly or partly artificially or digitally created sexualised images of children. The realism of such images creates the illusion that children are actually involved, although this is not the case. This type of material is also commonly referred to as “virtual child pornography” or “pseudo child pornography”. Because it sexualises children, it is harmful and should be proscribed.
(55) Terminology Guidelines p 37.
7.3.2 Performances 80. States must criminalise the acts of recruiting, or coercing a child into participating in pornographic performances or causing a child to participate in such performances, profiting from or otherwise exploiting a child for such purposes, and knowingly attending pornographic performances involving children.(56)
81. Children are sometimes made to witness sexual activities, and the Committee encourages States parties to criminalize the intentional causing, for sexual purposes, of a child to witness sexual abuse or sexual activities, even without having to participate.(57)
82. It has been noted that the age of consent is irrelevant in the context of pornographic performances, and age of consent laws (see 4.5 above) are not the same as consent to participate in pornographic performances.58 7.3.3 Sexting between minors 83. “Sexting” refers to the situation whereby self-generated sexual content in the form of images or the exchange of sexual messages is sent via mobile phone to others. Sexting often appears to be a product of youth peer pressure and, to a certain extent, teenagers increasingly consider sexting to be normal. While this conduct in and of itself is not necessarily illegal, it involves a number of risks. Sexualized images of children can easily spread online or offline beyond or against the will of the child, can be very difficult to remove and can be used in the context of bullying and for sexual extortion, which can have serious and traumatizing consequences for children, including suicide.(59)
84. International guidance teaches that although children (in particular adolescents) may willingly produce sexual content, this does not mean they consent to or are responsible for the exploitative or abusive use and/or distribution of these images. Therefore, they should never face criminal liability for their role in producing or making available the material depicting themselves.(60) There are also many forms of “unwanted sexting”. This refers to the non-consensual aspects of the activity, such as sharing or receiving unwanted sexually explicit photos, videos, or messages, for instance by known or unknown persons trying to make contact, put pressure on, or groom the child. Sexting can also be a form of sexual bullying. Sexting can be a mechanism for grooming.
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(56) CRC Guidelines OPSC par 64.
(57) CRC Guidelines OPSC par 70. 58 Terminology Guidelines p 34.
(59) CRC Guidelines OPSC par 42.
(60) Terminology Guidelines p 43.
85. Children should not be held criminally liable for producing images of themselves. It should therefore not be regarded as child sexual abuse materials where such images are made consensually, for private use, unless such images are produced as a result of coercion, blackmailing or other forms of undue pressure against the will of the child.(61) When sexting leads to abuse or exploitation, it is crucial that the fact that the material is self-generated does not result in blaming the child for what happens or in holding the child criminally liable for the production of child sexual abuse material. If such self-generated images are subsequently distributed, disseminated, imported, exported, offered or sold as child sexual abuse material, those responsible for such acts should also be held criminally liable. The authorization of the child to distribute should not exempt this liability.(62)
86. Finally adults (not peers) who send self-generated images with sexual content to children should be criminally liable, even where no coercion, blackmail or undue pressure is evidenced.
7.3.4 Sexual Extortion
87. Sexual extortion (sometimes referred to as “sextortion”) is a practice whereby a child is forced into agreeing to give sexual favours, money or other benefits under the threat of sexual material depicting the child being shared on, for example, social media. This practice is often linked to grooming and sexting.63 Often, the influence and manipulation typical of groomers over longer periods of time (sometimes several months) turns into a rapid escalation of threats, intimidation, and coercion once the person has been persuaded to send the first sexual images of her/himself.
88. Sexual extortion is considered a feature of online solicitation of both children and adults, and there appears to be an increase of the use of this type of blackmailing, including more extreme, violent, sadistic, and degrading demands by offenders.(64) When carried out against children, sexual extortion involves a process whereby children or young people are coerced into continuing to produce sexual material and/or told to perform distressing acts under threat of exposure to others of the materials. The use of the phrase “sextortion” risks trivialising behaviour which could have serious consequences, and therefore international guidance suggests that the term should be replaced with “sexual extortion of children”. 65 See further 6.3.3 above relating to the manner in which self- generated sexual images should be handled.
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(61) Lanzerote Convention 20 (3).
(62) CRC Guidelines OPSC par 67. Terminology Guidelines p 43.
(63) CRC Guidelines par 69.
(64) Terminology Guidelines p 51.
(65) Terminology Guidelines p 52.
7.3.5 New and emerging forms of online sexual exploitation
89. New ways of committing sexual offences may involve online “premises”, such as chat rooms, online forums and other online spaces that are not physical premises in the traditional sense of the term. Livestreaming is particularly complex because it allows offenders to interact with child sexual abuse production in real-time and leave limited evidence. Adult offenders may direct the child abuse to occur elsewhere whilst the acts are streamed live to an audience of offenders. Alternatively, offenders may entice or coerce children into using livestreaming platforms to produce child sexual abuse material. Offenders may also stream their sexual abuse of children through livestreaming platforms. In some cases, a livestream is captured and distributed.(66)
90. These new and emerging forms of online sexual exploitation require that both substantive criminal law and investigative and evidence collection techniques be developed to accommodate them. As mentioned, “possession” as the offence classification will not suffice due to the real time nature of the offence; entrapment rules may be implicated; and evidence leaders such as police and prosecutors will need to be specialised in computer and digital media analysis.
7.3.6 Extraterritoriality and international mutual legal assistance and cooperation
91. It bears noting that perpetrators will constantly adapt their behaviours to exploit gaps in law and in enforcement methods. Technology is permitting offender communities to attain unprecedented levels of organisation, which in turn creates new and persistent threats as these individuals and groups exploit online ‘safe havens’ and ‘on-demand’ access to victims.(67) The result is an ever-shifting landscape and the need for vigilance, including with respect to accessing encrypted communication channels and tracking payments sought and made in cryptocurrencies.
92. Legislation must found the jurisdiction to prosecute alleged offenders for all offences committed on the territory of the State, and also allow the State to investigate and prosecute all these offences regardless of whether the alleged perpetrator or the victim is a national of that State.
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(66) Voluntary principles to counter online child sexual exploitation and abuse (WeProtect, March 2020) annotated commentary to principle 5.
(67) WeProtect Global Threat analysis 2018.
93. Each State party should also establish its jurisdiction over sexual abuse offences that are committed outside its territory (extraterritorial jurisdiction) when the alleged offender is a national of that State or a person whose habitual residence is in its territory, or when the child victim is a national of that State. It is not necessary for the alleged offender to be present in the territory of the State for action to be taken, and an international arrest warrant can be sought where appropriate.68 An offender can, for instance, be in one country, watching or even ordering the live streaming of a child being sexually abused in another country. The prosecution of such offences regardless of the nationality or habitual residence of the alleged offender and victim should be established.69 Given the increased use of ICT to enable sexual offences against children and the new challenges to territoriality, States are encouraged to establish universal jurisdiction for these offences, and if this is not possible, to pursue the adoption of multilateral and regional instruments to facilitate prosecutions.
94. Given the transnational reach of the digital world, it is possible that multiple jurisdictions might have a claim to jurisdiction to prosecute. In such instances, jurisdictional conflict should be resolved by taking into account the best interests of the child victim or victims, taking into account their identity, needs, family and community situation, and the overall child friendliness of the intended measure or measures.
95. Extraterritorial jurisdiction is particularly important for offences constituting the sale or sexual exploitation of children where the offender is likely to travel to another country, such as in the case of sexual exploitation in travel and tourism. As the exploitation may not be detected until the offender has departed the country in which the offence took place, it is essential to ensure that States parties have the capability to prosecute the offender.(70)
96. Whilst the formulation of extradition treaties on a bilateral basis between States is encouraged, States are also encouraged to adopt legislative measures that would make extradition for the commission of specified child sexual abuse offences possible without the prior existence of a treaty between the respective countries.
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(68) CRC OPSC Guidelines par 82.
(69) CRC OPSC Guidelines par 87.
(70) CRC Guidelines par 85.
97. Interstate and international cooperation should cover, inter alia, effective detection and reporting systems, information-sharing, and safeguarding and transmission of evidence of crimes, including electronic evidence, in a timely manner. Cooperation should also cover assistance to victims in their recovery, reintegration and repatriation, as appropriate.(71) International cooperation should be guaranteed in regard to asset seizure and forfeiture, and any requests from another State party for such seizure or confiscation should be granted. In situations of porous borders, where offenders can easily move and cross back and forth between different countries, regional law enforcement and judicial cooperation is essential to fight impunity.
98. State Parties should leverage existing mutual legal assistance treaties or other international collaboration clauses, with due respect to the principle of sovereignty of States. In the absence of legal frameworks, State Parties should nevertheless afford requesting states the highest level of assistance in the fight to combat all forms of sexual exploitation. Where the principle of the best interests of the child is not an express feature of mutual legal assistance arrangements, it should be incorporated by proxy, in line with article 4 of the ACRWC.
99. The detection of online sexual exploitation and abuse does not necessarily lead to identifiable offenders and child victims. States parties should adopt clear measures to strengthen the identification of victims, including through mutual legal assistance and international cooperation and INTERPOL, and to guide their rescue and repatriation. States parties should also use similar means, including image analysis systems, to identify offenders.(72)
100. Interstate and international co-operation can increase the number of “hashes”, a kind of “digital fingerprint” of each child sexual abuse image, available to industry, civil society organisations and law enforcement agencies to assist in preventing the circulation of child sexual abuse material, and increasing the identification of victims and both crime and criminals.(73) Thus, States parties should employ to the maximum extent technological means to make the prevention and investigation of online sexual exploitation and abuse more efficient and to improve cross border collaboration.
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(71) CRC Guidelines OPSC par 109.
(72) CRC Guidelines OPSC par 101. 73 We Protect 2017.
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