It’s no crime to have bad intentions
Recently, the Dutch court reprimanded the police after an officer posed as an adolescent on the internet to catch a pedophile. Although protecting children against sexual abuse is important, the principles of criminal law still apply.
Governments must protect children against sexual abuse and crimes, such as child pornography and online grooming. Unfortunately, the internet can greatly facilitate such crimes and provide hiding places for perpetrators. The UK Child Exploitation and Online Protection Centre (CEOP) recently identified live streaming as one of the biggest threats for the sexual exploitation of vulnerable children in developing countries. Often these morally abject activities take place well out of sight in the Stygian darkness of the deep web that poses considerable challenges to law enforcement. However other crimes are committed in broad daylight on social media, although timely detection is still a struggle for the police, who come up with a creative, yet inadequate, solution.
Last week, the Hague Appeal Court rapped them over the knuckles after a police officer masqueraded as a 13-year old to let himself be groomed by a man on an online meeting place, thus endorsing an earlier decision by the court in the first instance. Online grooming is an inchoate offence and outlaws online behaviour, i.e. seducing or manipulating a child online to meet and have sex offline, that precedes other illegal activities, namely offline sexual abuse and the making of child porn. This crime fits in a tendency of growing criminalization, particularly where the use of new, often perceived as scary or risky, technologies is concerned. Note that offline grooming is not a crime.
Obviously, if (more) serious harm to children can be prevented, we should take action. Since the introduction of online grooming in the Dutch Criminal Act in January 2010, a number of online groomers have been convicted. In most cases, however, the child had already been sexually abused. In those cases where sexual abuse did not occur, family members (an observant mother or brother and father) had a role in preventing worse from happening. Ideally, parents or other carers are sufficiently close to children to notice when online communications take a dangerous turn and to step in. Particularly, children that are vulnerable as a result of – multiple – social, emotional or cognitive problems can be easy victims for online groomers and need to be guarded more in terms of their internet use. Empowerment through education may not be enough to effectively protect them. Sadly enough, when children are deprived of attention and warmth at home, they may feel they’re in a loving relationship with the groomer and actively seek to prevent disclosure of what’s going on. To be sure, their parents are not very likely to notice what’s happening anyway.
In the light of all that, the intentions of the Dutch police to protect children from being sexually abused may be prima facie understandable. However, for very good reasons – privacy to name a fundamental one – their hands are tied and they cannot constantly monitor what’s happening on “risky” communication channels, like chat rooms, without a probable cause. So in comes the idea of the ‘lokpuber’, i.e. a police officer posing as an adolescent to wait for perpetrators to start grooming them online and propose to meet offline in order to have sex. However, article 248e of the Dutch Criminal Code clearly states that the victim must be a person under 16, which a police officer clearly is not. This interpretation was expressly confirmed in parliamentary debates on the provision.
The decision of the court in the first instance provoked a change in opinion from the Minister for Justice and Security, given his intentions to change the law and allow the use of ‘lokpubers’ by law enforcement. Young people themselves – although sympathetic to the concept of the ‘lokpuber’ – think it will be more effective to make them more aware of the dangers of being contacted by online paedophiles. Just like we do with our children in the offline world, I’d like to add, even though obviously the methods of the groomer have slightly changed. More fundamentally, however, it would be wrong to criminalize a person’s intentions, however morally abject they may be, and ignore whom the law was meant to protect in the first place.