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					                        Germany




Research done by:
- Birgit Thoma
- Rebecca Stefula

Coordination by:
- Mechtild Maurer




ECPAT GERMANY
P.O.Box 5328
D-79020 Freiburg
Germany
Tel: +49 761 707 5124
Fax: +49 761 707 5123
E-mail: info@ecpat.de
1. INTRODUCTION

Reports in the media and by various welfare associations show that child trafficking for the purpose of
sexual exploitation in the form of prostitution and child pornography can no longer be regarded as an
exception. On the contrary child trafficking is structurally organised and, as a consequence, the
number of children involved and traumatised is rising at an alarming pace. The fall of the `Iron Curtain'
and the increasing economic difficulties of the Eastern European states paved the way for the `export'
of children from Eastern to Western states for the purpose of sexual exploitation. In this context the
problems faced by Germany are of special significance for it has common frontiers with two Eastern
European states. The frontier areas in question have witnessed a rise in cases of the sexual
exploitation of children. Secondly, according to the reports, Germany serves as a transit area - a
situation comparable to the trafficking in women - through which the children are smuggled to other
European states. Furthermore, a rising number of reports draw attention to the fact that children are
illegally trafficked from Germany to Poland, where they are sexually exploited for the production of
child pornography.

The problem received international recognition for the first time in Stockholm 1996 at the Congress
Against the World-wide Sexual Exploitation of Children, initiated by ECPAT and UNICEF with the
support of the European Union. But despite the initial political discussion on the sexual exploitation of
children through trafficking, pornography and prostitution, a thorough survey on `East-West Child
trafficking' is still lacking. As a consequence, various questions are still to be addressed. Foremost,
questions about the extent and/or the existence of child trafficking for the purpose of sexual
exploitation remain unanswered. Nor is there detailed knowledge about how the perpetrators operate.
Furthermore, the main countries from which the children in question come and those to which they are
finally destined remain unclear. Equally, the question of which networks and rings of traffickers exist,
how they are structured, and how child trafficking can be prevented in the future remains to be
answered.

ECPAT international has made it its goal to conduct an extensive inquiry on these questions. To gain
further knowledge of the extent, the causes, as well as the options of criminal prosecution and
prevention in cases of East-West child trafficking, the organisation has consulted experts from eight
European countries. In Germany the inquiry was conducted by the legal expert and head of the study-
group Justiz ECPAT Germany prof.dr. Birgit Thoma together with her students. Their first aim was to
get an overview of the subject, examine the context in which the problem is taking place and to
understand its different variables. In the future, based on the results of the examination, further
analysis will need to take place to explore the problems of East-West child trafficking and to propose
possible solutions as to how to resolve these problems.


2. LEGISLATION AND POLICY

Substantive criminal law
Applicable regulations
A multitude of regulations are relevant in the case of child trafficking. It is important to note that child
trafficking often goes hand in hand with the distribution of child pornography. In summary, the sexual
exploitation of children through trafficking might constitute the following criminal offenses according to
the German Penal Code (StGB):
- § 5 no. 8 StGB (Acts Abroad Against Domestic Legal Interests: Crimes against sexual self-
   determination);
- § 180 b StGB (Trafficking in Human Beings), § 181 StGB (Serious Trafficking in Human Beings);
- § 180 StGB (Promoting Sexual Acts by Minors);
- § 180 a StGB (Promoting Prostitution);
- § 181 a StGB (Pimping);
- § 176 StGB (Sexual Abuse of Children);
- § 176 a StGB (Serious Sexual Abuse of Children), § 176 b StGB (Sexual Abuse of Children
  resulting in Death);
- § 182 StGB (Sexual Abuse of Youths);
- § 184 no. 3, 4 StGB (Dissemination of Pornographic Writings);
- § 236 StGB (Trafficking in Children/Adoption).

With regard to criminal offenses committed abroad the German Penal Code (StGB) is applicable in
accordance with the rules set up by International Criminal Law (§ 3-7 StGB). As a consequence, an
offence is punishable under German law, and especially so if the offence endangers domestic German
interests enjoying legal protection, if the offence is punishable under foreign law, or if the offender or
the victim are of German nationality.

Reforms
Abolition of the territorial principle and introduction of the nationality principle
In 1993 the territorial principle was abolished empowering German courts to try German offenders for
offenses committed abroad (§ 5 no. 8 StGB). This enables German authorities to prosecute German
nationals for offenses committed abroad, independent of the legal situation of the country where the
offence was committed for offenses of sexual child abuse (§§ 176, 176a, 176b StGB). Equally, in
cases of youth abuse (§ 182 StGB).
The same applies to cases of trafficking in human beings according to § 180b StGB and cases of
serious trafficking in human beings according to § 181 StGB as well as the distribution of pornographic
material according to § 184 no. 3 and 4 StGB.

Increase in the range of sentences
In addition, in 1998 Germany increased the maximum penalty for offenses which constitute sexual
exploitation of children as well as introducing new penal regulations. Thus, in the future serious sexual
child abuse in the form of rape, oral or anal intercourse or committed by a recidivist offender
constitutes not a simple misdemeanour but a felony. As a consequence, offenders face minimum
imprisonment of one year. The imposition of a probation order in connection with a charge makes the
abandonment of criminal proceedings impossible. Furthermore, the availability of probation is limited
and, additionally, in the case of a conviction, offenders face further disadvantages such as the loss of
any employment within the Civil Service. Overall, in cases of sexual exploitation proceedings have to
be instituted `ex officio' which means that a report to the police is not a requirement for criminal
investigation. An abandonment of proceedings is no longer possible but instead the case must be
terminated by a court decision (verdict or acquittal).

Furthermore, for the organised distribution of pornographic material giving a realistic account of events,
the maximum prison sentence was raised from five to ten years. If the offender caused the child's
death he can be punished with lifelong imprisonment; in this case the prison sentence cannot be shorter
than ten years.

New criminal regulations concerning child trafficking (adoption agencies)
Parallel to the measures increasing the penalty for §§ 176 and 184 StGB, a new regulation was
introduced, which punishes illegal child trafficking but primarily in the context of illegal adoption
through agencies (§ 236 StGB).

Registration of virtual presentations in the internet (child pornography)
Since April 1997, the virtual presentation of child pornography in the internet is also classified as an
offence. This includes the presentation of realistic events or those which appear to have taken place
but where the possibility exists of them being merely fictive.
Criminal prosecution
International cooperation
Bilateral agreements
Cooperation between the criminal prosecution agencies is based on the European law enforcement
treaty in criminal matters of 20 April 1959, imposing a duty of mutual assistance in criminal matters, in
connection with the supplementary protocol of 17 March 1978. A supplementary protocol is currently
being negotiated with the Republic of Poland in order to enhance and facilitate the cooperation
between other European countries. A comparable supplementary protocol has already been concluded
with the Czech Republic. It was signed 2 February 2000 and ratified by the Czech Parlia ment mid-
March 2001. The supplementary protocol facilitates the extradition of offenders and enhances law
enforcement procedures.

Contact police officers of the BKA
Contact police officers of the Bundeskriminalamt (BKA, Federal Criminal Police Department) working
abroad do not hold sovereign jurisdiction within the states to which they have been sent. On foreign
territory they are prevented from conducting their own investigations. Only in the case of specific
criminal proceedings are German prosecution agencies entitled to make a formal request for assistance
in law enforcement to the foreign criminal prosecution authorities. However, the competence of the
contact police officers was extended by the Agreement between the Ministry of Foreign Affairs and
the Home Office on the delegation of contact officers of the Federal Criminal Police to German
agencies abroad from 20 December 1994 in the revised version of 3 November 1995. In the case of
German agencies having requested assistance in law enforcement, these officers, apart from collecting
and evaluating information, are entitled to initia te and support investigations irrespective of the specific
offence. The information gathered thereby can be used by the German police in the respective pro-
ceedings in compliance with the formal legal requirements. At present 52 contact police officers are
working in 35 states throughout the world. A further enlargement of the current force of contact police
officers is planned.

Adoption agencies
The Federal Republic of Germany has signed the Hague Agreement of 29 May 1993 on the protection
of children and cooperation in the field of international adoption. Ratification and implementation of the
agreement are currently in preparation. The purpose of the agreement is to protect the children's rights
in the case of cross-border adoption and to install a system of cooperation between the signatory states
in order to safeguard the wellbeing of the children. Furthermore, it aims at the prevention of child
abduction and child trafficking. It lays down basic requirements for international adoptions specifically
with regard to the necessary consent of the private individuals and the administrative authorities
concerned. Of central importance is the obligation of the contracting states to set up head offices,
which are to cooperate to secure the wellbeing of the children, to put into effect the aims of the
agreement and to support the cooperation between the responsible authorities in the respective states.
In connection with this agreement, two important measures of reform have taken place in Germany:
1. The scope of the regulation concerning the abduction of children, laid down in § 235 StGB, was
   enlarged by the new § 236 StGB to facilitate the work of those agencies set up to combat child
   trafficking for sexual abuse. However, the applic ability of the regula tion is conditional upon the
   particular child having lived together with the offender for a lengthy rather than merely a passing
   period of time.
2. With the civil children's law reform of 1998, the regulations of the Civil Code concerning adoption
   were extended by a law designed for the prevention of child trafficking and com-
   parable practices. Accordingly a person may only adopt a child if the child's wellbeing is guaranteed
   As a consequence, the new regulation places a heavy burden upon the unlawful or improper
   initiation of adoption.
Child trafficking as an offence of organised crime?
Since 1992 the trafficking in human beings is considered to constitute an offence of organised crime.
As such, special authoritative responsibilities are applicable and extended competence of investigation
is conferred upon investigation authorities. Furthermore, the contact with and utilisation of Interpol or
Europol is facilitated. In legal practice, however, the sexual exploitation of children through child
trafficking is not registered and investigated as trafficking in human beings but simply sexual abuse.
Consequently, no special responsibilities or extended investigation competencies apply and the potential
use of international investigation by Europol and Interpol is impeded. An additional problem is that very
few contact police officers are located in Eastern European countries and those who are deployed
primarily investigate other crimes, namely offenses of organised crime. One can draw the following
conclusion: the existing international dimension of the crime of child trafficking does not automatically
correspond with the deployment of the existing international network of investigation strategies. This
leads to the following question: how can the sexual abuse of children be included as constituting an
offence of organised crime? The answer depends on the application of the organised crime-criteria as
established by the BKA in its guidelines on criminal proceedings and the fining system.

According to these guidelines, the definition of organised crime is as follows: `Crimes, planned and
committed by more than two persons who are committed to attaining profit or power, in which the
crimes taken individually or as a whole are of significant seriousness and the persons involved work
together, based on a division of labour over a lengthy or indefinite period of time if they either:
a. use professional or businesslike structures, or
b. deploy violence or other measures suitable for intimidation, or
c. collaborate while exercising influence in politics, the media, public administration, the judiciary or the
   economy'.

These criteria are generally met in cases of sexual exploitation of children within the framework of
child trafficking: professional or businesslike structures are created and the children are transferred to
the clients by their parents or relatives for the purpose of sexual exploitation. Furthermore, the children
are often forced into prostitution by the use of violence or threats, or they are directly sold by their
relatives for the purpose of prostitution which creates a specific situation of psychological pressure and
dependency. Moreover, they are subjected to sexual exploitation without any means to protect
themselves. The latter constitutes a psychological situation of violence which, according to the BKA's
commentary on the organised crime-criteria, meets the requirements for the legal concept of violence.
Further taking into account the corruption, professionalisation, and the increasing level of organisation
in this area, the criteria of organised structures are clearly met.

Witness protection/videotape interrogation
For a successful criminal prosecution, the children's testimony is of great significance for the
presentation of the case. Within this context the `witness protection law' (Zeugenschutzgesetz) was
passed in 1998, enabling children to give testimony via video-recording in those proceedings concerned
with sexual offenses. According to this law the children can be questioned abroad and their testimony
can be used by German courts during the main hearing. Therefore, repetitive interrogation, which puts
a considerable strain on the child, is not required at the start. However, the Federal Supreme Court
(Bundesgerichtshof/BGH) has established requirements for the child’s credibility to the effect that it
has, as a rule, demanded the renewed questioning of the child concerned during the main hearing.
These precedents are not to be welcomed. Legally, it is possible to protect the child from the
considerable stress of repetitive interrogation by referring to the provisions enabling the judicial
exclusion of evidence, such as unobtainability or unsuitability. Experience of videotape interrogation of
children is limited in Germany. In spite of its introduction under the 1998 reforms primarily for the
questioning of children in proceedings concerning sexual abuse, it has been mainly used for the
questioning of contact men and investigation officers working under cover.
State financed legal adviser for victims-witnesses
Children can be given a legal adviser at public expense in sexual offence proceedings. The legal
adviser represents the joint plaintiff and the interests of the child during the proceedings and
accordingly is entitled to attend all examinations and has all rights of the joint plaintiff. The provision of
such a legal adviser is possible at the stage of preliminary proceedings. All costs are covered by the
treasury.

Execution of sentences/tightening of preventive detention for offenders
The sixth law on the reform of the penal code modified the penal code as well as the laws on the
execution of sentences to give the courts as well as the criminal executive authorities new and more
flexible powers in protecting the public from so-called `dangerous sex offenders'. It extends the
potential use of therapy for those offenders considered treatable and enhances the possibility of putting
these offenders into therapeutic institutions while serving their sentence. From 2003 onwards it is
mandatory to transfer those sexual offenders considered treatable and in need of treatment as well as
being sentenced to more than two years of imprisonment to a therapeutic institution.

The law also provides clarification in the requirements for probation. It establishes that the public
interest in safety, as well as the importance of additional interests enjoying legal protection, in the case
of a repetition of the offence, must bear some influence on the ruling. If it cannot be ruled out that
public safety might be endangered in the case of the offender's premature release, an expert witness's
report must be obtained. Under the new law, a court can order those sentenced to attend probation as
well as ordering those already released from prison to undergo therapy, even in the absence of consent
(compulsory therapy). In addition, the law provides for the deployment of further security measures
against recidivistic sex offenders as well as violent offenders.

Politics
In July 1997, following the first World Congress in Stockholm, the Federal Government at that time
(CDU/CSU/FDP) published a working report on the fight against child abuse, child pornography and
sex tourism. The report contained a block of specific measures, ranging from propagation and the
dissemination of information, prevention and legal aspects to international prosecution and victim
protection. Furthermore, in 1998 an addendum was published, supple -menting the work report in
particular with regard to its legal aspects and laying down the legal requirements for their implementa-
tion. Below follows a brief summary.

Dissemination of information and prevention
The exchange of information in the area of child protection has increased and prevention methods
have been further developed. In this respect, various educational measures, as well as further
vocational training, were sponsored by various associations (Association for the Protection of Children
National Task Force on the Protection of Children and Young People). The project `Schools to the
Net' was sponsored to enhance the educational work directed against the sexual exploitation of
children. The Federal Head Office responsible for public education in health matters has published
several informative pamphlets. Furthermore, various conferences on the topic of `Prevention of
Violence' were sponsored. Altogether, six advice centres are sponsored with the specific task of
advising women and girls. The `Study Group Trafficking in Women' was set up by the Federal Ministry
for Family Services, Women and Youth Affairs. Additionally, the following model projects were set up,
directed at the dissemination of information and prevention:
- a Children's magazine aimed at informing and prevention;
- multi-media system programme titled `Sexual Abuse – Prevention and Aid' (a film with
   accompanying book);
- `Love-tour': a sex education tour in the new Federal States Laender;
- gender specific sex education taking specifically into account young adults in vocational training;
- integration of family planning within company related training and further education;
- combining school and youth work, development and testing of innovative approaches to sex
  education for boys and young men;
- reflective youth work in the States of the Rhineland-Palatinate and Saarland.

Educational and informational campaigns
A National Information Centre for Child Abuse and Child Neglect (IKK) was founded in 1999 at the
German Youth Institute, funded by the Federal Ministry for Family Services, Women and Youth
Affairs. Its task is, on the one hand, to develop educational and informational campaigns, in order to
push the subject of sexual exploitation and abuse at both political and practical levels, and on the other
to help develop preventative measures. In March 2001, the Ministry and the IKK held a National
Follow-up Conference of the 1996 International Conference of Stockholm, with the participation of
national experts. The continuation and implementation of the national action plan against sexual
exploitation of children were the planned actions resulting from the con-
ference. These have yet to materialise.


3. OVERVIEW OF OTHER RESEARCH

Up to now there has been no comprehensive evaluation of the subject child trafficking on a national
level. The only brief national inquiry on the subject was into the proportion of offenders sentenced by
the courts by the legal work group of Germany's ECPAT. According to this, merely 8 proceedings led
to a trial, in spite of the readjustment in 1993, which makes punishable a criminal offence committed
abroad. The average sentence was 4 years.
Since 1992, the Federal Criminal Police Office has been creating yearly reports on the national state of
affairs concerning trafficking in human beings. The reports include the results of the regional Criminal
Police Offices. Since child trafficking is not recorded for the reasons stated above, this data can only
be referred to in a limited manner.
The existing research results on child sex tourism are more comprehensive in the extra-European area
and trafficking in human beings (women). Since they may be partially referenced when studying child
trafficking, a short outline follows.

International sex tourism
- With reference to prostitution tourists and the background/motives of the offenders, two papers are
  available by Andrea Rhode (Men, Prostitution, Tourism 1997), and Dieter Kleiber (Aids, Sex and
  Tourism 1995)
- A further inventory was carried out by Giesela Wuttke in 1999 (child prostitution, child pornography,
  tourism). This paper does not lay claim to a scientific approach, but merely clarifies the motives and
  presents the political measures currently taken.
- Journalistic research was carried out by Mechthild Mauer (Tourism, Prostitution and Aids, 1991) as
  well as by Ekkard Launer (Sextourism, 1993) and Guido and Michael Grandt/Petrus van der Let
  (Merchandise Children, Abuse and Prostitution 1999)
- The most comprehensive expert book from a criminological and psychological point of view is by
  Adolf Gallwitz/Manfred Paulus (`Grünkram', the child sex mafia in Germany). In spite of its
  misleading sub-title, it predominantly covers sex tourism in Asiatic countries.

Trafficking in women
Numerous studies have been published over the last few years covering the subject of women and
trafficking.
- In 1991 Lea Ackermann from SOLWODI (solidarity with women in distress) and Dagmar Heine-
   Wiedemann presented a comprehensive study on the conditions, extent and motives of trafficking in
   women. Apart from analysing the situation in the area of prostitution tourism, marriage trading and
   trafficking in human beings, it also documents the results of conversations with numerous involved
  authorities and counselling groups (Border Guards, Federal and Regional Criminal Police Offices,
  Criminal Prosecution Authorities, the Aliens Office and Counselling Specialists).
- Ilse Lenz examined the possibility of intervention in her paper in 1993.
- The Institute for Social Science in Frankfurt presented a paper on the evaluation of work in the
  specialist counselling offices.
- Ulrike Menz, in her thesis in 2000, examined Trafficking in human beings as a problem of migration
  law.

Study on the approximation of the criminal law at a European level
The Max-Planck Institute for Foreign and International Criminal Law in Freiburg is analysing and
comparing the various legal, judicial and criminal law systems, with a view to the possibilities of the
approximation of criminal law at a European level.
The results are expected by the end of 2001. The first interim-report can be viewed on the Institute's
homepage viz: max.planck@uni-freiburg.de.


4. RESULTS OF THE INTERVIEWS

Part of the inquiry consisted of the questioning of 12 experts from different areas.
They were asked to fill out questionnaires. In this section the conclusions drawn from the results of the
questionnaires and some individual responses of the experts will be presented.

The extent of the problem of child trafficking
There is lack of inclusion of criminal offenses committed abroad in the criminal statistics of the police
as well as in the report on trafficking in human beings. The fact that police criminal statistics as well as
the reports on trafficking in human beings only register those criminal offenses committed on domestic
but not on foreign territory, poses a problem. As a consequence, only the sexual exploitation of children
within German sovereign territory is taken into account. The statistics are silent therefore on the
number of German offenders exploiting children for sexual purposes abroad.
Furthermore child trafficking is not registered as constituting trafficking in human beings. Child
trafficking is registered in the police criminal statistics as constituting sexual abuse of children (until the
age of 14) or adolescents (until the age of 16). Unfortunately, the statistics do not provide information
on the nationality of the particular vic tims. Thus, no information on East-West child trafficking can be
obtained from the statistics.

However, if the offence was listed under the heading `trafficking in human beings', the statistics could
provide information on child trafficking, for in this case German victims serving as witnesses are
registered separately from those who come from abroad. However, it must be noted that in the current
statistics on trafficking in human beings almost no person under the age of 18 years is registered as a
victim. The result is that child trafficking is not classified as trafficking in human beings and therefore,
does not figure in the statistics. This ignores the fact that the former meets the typical conditions which
eventually constitute `trafficking in human beings'. On foreign territory the children are sold to German
offenders or the latter take them to Germany where they are forced into prostitution. Equally, the
requirement of dependency is met, for the children are in a specifically dependent relationship. Often it
is their own parents and relatives that sell them to the clients.
It has become evident that the classification of the particular offence is burdened by the continuing
divergence of definitions. The BKA denies that child trafficking constitutes trafficking in human beings
whereas various NGOs argue that it assuredly does. The opposing views lead to a dilemma, which can
only be solved by the further interpretation and explanation of the legal constituents of the offenses.

The problem of child trafficking cannot be adequately analyzed by evaluating the current statistics, for
the relevant cases are lost within the general figures on the sexual abuse of children. Thus, officials
simply deny the problem by pointing to the general statistics. As a consequence the need for action to
fight child trafficking is routinely dismissed.
By contrast, the above mentioned reports by NGOs provide evidence of a heavy increase in the
number of trafficked children. According to their reports, approximately 10-15 children are inspected
by potential clients at border crossing-points each week. In their home countries the children are often
approached on the streets. The care centres for women provide evidence of the increasing number of
young women and children contacting them for help.
Since child trafficking is categorised as sexual abuse and not as trafficking in human beings, it is not
considered as an offence of organised crime. Consequently, neither special authoritative responsibilities
nor extended competencies for investigation are conceded and the possibilities of international
cooperation through Europol and Interpol are seriously hampered. An additional problem is the
insufficient number of contact police officers in the Eastern European countries, whereas the few that
are placed there are primarily assigned with the task of investigating other offenses – that is those that
form part of organised crime. Thus, one can draw the following conclusion: the existing international
dimension of the offence, as outlined by the NGOs, does not automatically force the criminal
prosecution authorities to employ the existing international network of investigative instruments.
Consequently, the following question needs to be addressed: what needs to be done in order to classify
the sexual abuse of children as an offence of organised crime? The answer depends on the corre-
sponding application of the organised crime-criteria as established by the BKA in its guidelines for
criminal proceedings and penalties system.

A characteristic of organised crime is that the offenses are planned and commissioned by more than
two persons, committed to attain profit or power, whereby the offenses taken individually or as a
whole have to be of significant seriousness and the persons involved work together, based on a division
of labour over a lengthy or indefinite period of time if they either
- use professional or businesslike structures, or
- deploy violence or other measures suitable for intimidation, or
- collaborate while exercising influence in politics, the media, public administration, the judiciary, or
   the economy.

According to statements by various NGOs these criteria are met in cases of the sexual exploitation of
children within the framework of child trafficking: Professional or businesslike structures are created,
the children are transferred to the clients by their parents or relatives for the purpose of sexual
exploitation. Furthermore, the children are often forced to prostitution through the deployment of
violence or threats, or they are directly sold by their relatives for the purpose of prostitution which
causes a specific situation of psychological pressure and dependency. Moreover, they are subjected to
sexual exploitation without any means to protect themselves. The latter constitutes a psychological
situation of violence which, according to the BKA's commentary on the organised crime-criteria,
meets the requirements for the legal concept of violence. Taking further into account the corruption,
professionalisation, and the increasing level of organisation in this area, the criteria of organised
structures are clearly met.
NGOs report on the offenders' increasing level of organisation but a female representative, a member
of the investigation committee `Rotlicht' in Rheinland-Pfalz, indicated criminal colla-
boration between the police, the judiciary and the offenders. The committee put on record a specific
involvement of judges and politicians in child sex parties held abroad.

Legislation
Some important legal changes relevant to child trafficking have taken place:
- in 1993 the application of criminal responsibility of German offenders having committed crimes
  abroad;
- in 1998 the increase of penalties as well as the introduction of new criminal provisions; and
- in 1998 the addition of provisions or obligations prior to the early release of recidivist sexual
  offenders.
However, these new provisions have not increased the proportion of convic tions.

The power of the German courts to deal with German offenders having committed crimes abroad is
not of great significance in terms of child trafficking. This is because the children are mostly trans-
ferred from Eastern European countries to Germany.
Until now an increased penalty for sexual abuse has led neither to an increase in convictions nor to
harsher sentencing of those convicted. Furthermore, the new provision on child trafficking
(§ 236 StGB) has rarely been applied.

All of this indicates that the problems are not due to the deficiencies of substantive law (legisla tion) but
procedural law (enforcement jurisdiction). Here, the reform of provisions drafted to fight organised
crime are of special importance. It is essential to classify child trafficking as an offence of organised
crime as well as to apply the extended investigating competence (composed of line tapping, monitoring
measures, transfer of data, exchange of information).

Definition of trafficking in human beings
The fundamental problem is concealed in the recording of child trafficking. In practice, differing
definitions on child trafficking are applied to the effect that, legally, criminal investigations focus on the
sexual abuse of children and not on child trafficking. As long as the legal requirements of trafficking in
human beings are answered in the negative with the consequence of no investigation. The extended
investigating competence on organised crime is not applicable to this form of sexual exploitation of
children. Thus, it has to be made clear that, legally, child trafficking with the purpose of sexual
exploitation is a matter of trafficking in human beings according to §§ 180b, 181 StGB.

Witness protection
Criminal investigation is oriented towards the offender, not the victim, which means that the interests
of the child victim-witness are not sufficiently met in the course of the investigation. Often the children
are deported to their home countries by themselves. Thus, they are criminalised for not possessing an
alien's residence permit. As a consequence, the vicious circle of exploitation starts anew. In their home
countries they are placed in foster homes where they are often subjected to the dangers of sexual
exploitation.
Because of the children being in fear of possible retaliation by the traffickers, the majority of them
refuse to testify. Therefore, a special witness protection system must be developed together with a
general system for a more victim-witness oriented criminal jurisdiction. Without the children’s
testimony the satisfaction of the burden of proof as well as the conviction of the offenders is
hampered. Since 1998 it has been possible in the course of criminal proceedings to introduce the
children's testimony on videotape without the necessity of a repeated interrogation of the children in
court. In Germany this possibility is primarily used for the interrogation of informers (V-Leute) and
investigating officers working under cover (Verdeckte Ermittler). Nevertheless, the videotape
testimony remains as an alternative to reduce children's suffering in the context of an investigation.

Prevention
There are a number of preventive as well as informative projects on sexual abuse at the national level
as well as domestically (see politics section). As far as the prevention of child trafficking is concerned,
workable definitions are still lacking. Presently, only the project KARO, located in the frontier district
Engrensis, is sponsored together with two other projects in Berlin (one of which, however,
concentrates primarily on street children).


5. CASE STUDIES
Ildiko from Hungary
When Ildiko was 11 years old, her parents divorced. The girl would have preferred to stay with her
father but was forced to stay with her mother. However, she did not accept the situation. Her dislike
of her mother was created by the fact that, since the divorce, her mother brought home various lovers.
Because the family home consisted of nothing but one single room which Ildiko had to share with her
mother and her sister, the visits of her mother’s lovers put considerable strain on their family life.
Several times Ildiko tried to find shelter at her father’s place even though the mother had prohibited it,
repeatedly bringing forward the argument that the father was a violent criminal and alcoholic. In fear
of being reported to the police by the mother, the father did not dare to give Ildiko shelter at his home.
The situation worsened when the mother made the acquaintance of a wealthy man and moved to his
place together with her daughters. Ildiko was not ready to accept the authoritarian treatment of this
man towards her family. Eventually, she rebelled and was even hit by her mother's new lover. The
fact that, in this situation, her mother was taking her lover's side, severely damaged the girl's feeling of
trust. Ildiko still would have preferred to live at her father’s place but did not dare to move, fearing
rejection. At the same time, she found it increasingly difficult to keep trusting her immediate family. As
the situation became unbearable, the mother turned to the social welfare office for help. Ildiko was
sent to a foster home.
At the foster home Ildiko did not manage to settle down. Several times she tried to escape to her
father and to a friend of hers. Her various escape attempts remained unsuccessful and she was trans-
ferred to a home for difficult children. Her new placement was combined with a re-education
programme. Despite her intelligence she had to attend a special school. In this new foster home she
was often exposed to sexual harassment by the staff and older adolescents. Again, she tried to escape.
This time she was brought back by the police.
A short time later she finally managed to escape successfully. In her desperation Ildiko confided in a
friend of her mother's who promised to help her. This friend sold Ildiko to German traffickers,
something Ildiko was not aware of. At 15 years old she came to Hamburg. She received false papers
and was forced into prostitution in a brothel. In the brothel there were other minors, mainly from
Hungary, Slovakia and the Czech Republic. Ildiko was completely helpless because she did not
understand German and had, therefore, no means to orientate herself. She was under the constant
surveillance of her pimp and his accomplices. However, Ildiko managed a carefully planned escape.
Even though she had no idea what was to become of her, she saw no other way out than to return to
Hungary. Because of her false papers the Hungarian police put her back into the foster home. Again
she escaped, and confided into her mother's friend for a second time. She still ignored the fact that it
had been this woman who had sold her to Germany. Ildiko was sold a second time. With the help of an
intermediary in Budapest Ildiko was again brought to Germany. Several days later the police picked
her up during a raid and brought her to SOLWODI. Ildiko was 16 years old.

Irina from the Ukraine
At the age of 13, Irina was raped while spending the summer holidays at her grandmother's home.
Since then her emotional stability was severely affected yet she received no support from her family.
She could not confide in them and felt misunderstood by them. Her parents considered her to be very
mature in comparison with her younger sister who they claimed to be in need of all their attention.
At the age of 15, Irina made the acquaintance of a woman who sold her to German traffickers. Irina
was brought to the Ruhr area via Hamburg. During a raid she was picked up by the police and
deported. Instead of leaving the country she confided in a stranger at the station and was brought to
another brothel. Here, the situation was better for in comparison she was treated in an acceptable
way. However, when her age became known she had to leave the brothel. Her pimp advised her to
apply for asylum and was sent to an asylum seekers centre. From there she went back to the brothel.
During a raid she was arrested. When she told her story the criminal investigation department
contacted SOLWODI. From the age of 16 Irina spent the following 3 years in the care of SOLWODI.
6. CONCLUSIONS AND RECOMMENDATIONS

It can be seen that as a result of their practical experience, the NGOs have clearly identified child
trafficking as being a problem, but has not been similarly recognised on a political and legislative level.
For example, only the child adoption laws have been readjusted, while child trafficking is still not
officially recognised as constituting trafficking in human beings. This situation is further underlined by
the fact that the major part of all information regarding child trafficking has been gathered by the
NGOs and not by political representatives.
It is therefor essential that further studies and investigations take place in this area.

The following conclusions can be drawn:
- statistically, child trafficking is to be classified as trafficking in human beings and not simply as
  sexual abuse;
- as a consequence, all investigative competence has to be employed in cases of child trafficking for
  since it constitutes trafficking in human beings it is an offence which should be classified as
  organised crime;
- in cases where child trafficking is regarded as constituting sexual abuse, it is equally to be classified
  as an offence of organised crime;
- more consistent application of the existing regulations is required;
- classification of child trafficking for the purpose of sexual exploitation as trafficking in human beings
  according to §§ 180b, 181 StGB;
- no deportation of the children concerned;
- allocation of homes where the children can be placed and, correspondingly, offered psycho-social
  care;
- creation of a witness protection programme for children; victim-witness oriented modification of the
  guidelines on criminal proceedings and the penal system as far as relevant in the context of
  organised crime; enhanced consultation of NGOs;
- taking advantage of the possibility of videotape interrogation for victim-witnesses.


7. ANNEX

Annex I

List of interviewed experts
Part of the inquiry consisted of the questioning of 12 experts from different areas.
They were asked to fill out questionnaires. The experts are representatives of:
- The Federal Criminal Police Office department for `Trafficking in human beings' and `Child
   Pornography';
- The Federal Border Guard;
- KARO (project against prostitution and for the prevention of HIV in the Euro-region Egrensis);
- SOLWODI (solidarity with women in distress);
- Political spokeswoman on law and home affairs of the Green Party and member of the investiga-
   tion committee `Rotlicht' Rheinland-Pfalz;
- Member of the PDS, (party of the socialist democrats) in the State Parliament of Saxon
   (representative for social matters and women);
- Expert within the Commission on Children, in the German Parliament;
- Prosecutor's Office in Frankfurt/Oder; Federal Ministry of Justice, department `Laws of
   Criminal Procedure';
- Alien Ministry of the city of Plauen; Ministry of Foreign Affairs department `Eastern Europe'.

Annex II
Legal provisions

Section 5 Acts Abroad Against Domestic Legal Interests
German criminal law shall apply, regardless of the law of the place the act was committed, to the
following acts committed abroad:
8. crimes against sexual self-determination:
   (a) in cases under Section 174 subsections (1) and (3), if the perpetrator and the person, against
       whom the act was committed are Germans at the time of the act and have their livelihoods in
       Germany; and
   (b) in cases under Sections 176 to 176b and 182, if the perpetrator is a German.

Section 176 Sexual Abuse of Children
(1) Whoever commits sexual acts on a person under fourteen years of age (a child), or allows them to
    be committed on himself by the child, shall be punished with imprisonment from six months to ten
    years, and in less serious cases with imprisonment for not more than five years or a fine.
(2) Whoever induces a child to commit sexual acts on a third person, or to have them committed on
    the child by a third person, shall be similarly punished.
(3) Whoever:
    1. commits sexual acts in front of a child;
    2. induces the child to commit sexual acts on his own body; or
    3. exerts influence on a child by showing him pornographic illustrations or images, by playing him
        audio recording media with pornographic content or by corresponding speech, shall be
        punished with imprisonment for not more than five years or a fine.
(4) An attempt shall be punishable; this shall not apply for acts under subsection (3), number 3.

Section 176a Serious Sexual Abuse of Children
(1) The sexual abuse of children shall be punished with imprisonment for no less than one year in
    cases under Section 176 subsections (1) and (2), if:
    1. a person over eighteen years of age completes an act of sexual intercourse or similar sexual
        acts with the child, which are combined with a penetration of the body, or allows them to be
        committed on himself by the child;
    2. the act is committed jointly by more than one person;
    3. the perpetrator by the act places the child in danger of serious health damage or substantial
        impairment of his physical or emotional development; or
    4. the perpetrator has undergone a final judgment of conviction for such a crime within the
        previous five years.
(2) Whoever, in cases under Section176 subsections (1) to (4), acts as a perpetrator or other
    participant with the intent of making the act the object of a pornographic writing (Section 11
    subsection (3)), which is to be disseminated pursuant to Section 184 subsections (3) or (4), shall be
    punished with imprisonment for not less than two years.
(3) In less serious cases under subsection (1), imprisonment from three months to five years shall be
    imposed, in less serious cases under subsection (2), imprisonment from one year to ten years.
(4) Whoever, in cases under Section 176 subsections (1) and (2):
    1. by the act seriously physically maltreats the child; or
    2. by the act places the child in danger of death, shall be punished with imprisonment for not less
        than five years.
(5) The time in which the perpetrator is in custody in an institution pursuant to order of a public
    authority shall not be credited to the term indicated in subsection (1), number 4. An act as to
    which judgment was rendered abroad shall be deemed equivalent in cases under subsection (1),
    number 4, to an act as to which judgment was rendered domestically, if under German criminal
    law it would have been such an act under Section 176 subsections (1) or (2).
Section 176b Sexual Abuse of Children Resulting in Death
If by the sexual abuse (Sections 176 and 176a) the perpetrator at least recklessly causes the
death of the child, then the punishment shall be imprisonment for life or for not less than ten years.

Section 180 Promoting Sexual Acts by Minors
(1) Whoever abets the commission of sexual acts of a person under sixteen years of age on or in
             front of a third person or sexual acts of a third person on a person under sixteen years of
             age:                 1.        by acting as an intermediary; or
    2. by furnishing or creating an opportunity, shall be punished with imprisonment for not more than
        three years or a fine. Sentence 1, Number 2 shall not be applicable if the person responsible
        for the care of the person acts; this shall not apply if the person responsible for the care of the
        person grossly violates a duty to provide upbringing in thus abetting.
(2) Whoever induces a person under eighteen years of age to commit sexual acts on or in front of a
    third person for compensation, or allows them to be committed on the person by a third person, or
    whoever abets such acts by acting as an intermediary, shall be punished with imprisonment for not
    more than five years or a fine.
(3) Whoever induces a person under eighteen years of age, who is entrusted to him for upbringing,
    education or care in leading his life, or who is subordinated to him within the framework of an
    employment or work relationship, to commit sexual acts on or in front of a third person, or to allow
    them to be committed on the person by a third person, while abusing a dependency connected with
    the upbringing, education, care, employment or work relationship, shall be punished by
    imprisonment for not more than five years or a fine.
(4) In cases under subsections (2) and (3) an attempt shall be punishable.

Section 180a Promoting Prostitution
(1) Whoever professionally maintains or manages an operation in which persons engage in prostitution
    and in which:
    1. they are held in personal or financial dependency; or
    2. the exercise of prostitution is promoted by measures which go beyond merely furnishing a
        dwelling, a place to stay or a residence and the additional services normally associated
        therewith, shall be punished with imprisonment for not more than three years or a fine.
(2) Whoever:
    1. furnishes a dwelling, or a place to stay or residence for professional use to a person under
        eighteen years of age for the exercise of prostitution; or
    2. urges another person, for whom he has furnished a dwelling for the exercise of prostitution, to
        engage in prostitution or exploits the person in relation thereto, shall be similarly punished.

Section 180b Trafficking in Human Beings
(1) Whoever, for his own material benefit, exerts influence on another person, with knowledge of a
    coercive situation, to induce the person to take up or continue in prostitution, shall be punished with
    imprisonment for not more than five years or a fine. Whoever, for his own material benefit, exerts
    influence on another person, with knowledge of the helplessness associated with the person's stay
    in a foreign country, to get the person to engage in sexual acts, which the person commits on or in
    front of a third person or allows to be committed on the person by the third person, shall be
    similarly punished.
(2) Whoever exerts influence:
    1. on another person with knowledge of the helplessness associated with the person’s stay in a
        foreign country; or
    2. on a person under twenty-one years of age, to induce the person to take up or continue
        prostitution or to get the person to take it up or continue it, shall be punished with imprisonment
        from six months to ten years.
(3) In cases under subsection (2) an attempt shall be punishable.

Section 181 Serious Trafficking in Human Beings
(1) Whoever:
    1. with force, threat of appreciable harm or trickery induces another person to take up or continue
        prostitution;
    2. recruits another person through trickery or abducts person against the person’s will by threat of
        appreciable harm or trickery, with knowledge of the helplessness associated with the person's
        stay in a foreign country, in order to get the person to commit sexual acts on or in front of a
        third person, to allow them to be committed on the person by a third person; or
    3. professionally recruits another person, with knowledge of the helplessness associated with the
        person's stay in a foreign country, in order to induce the person to take up or continue prostitu-
        tion, shall be punished with imprisonment from one year to ten years.
(2) In less serious cases the punishment shall be imprisonment from six months to five years.

Section 181a Pimping
(1) Whoever:
    1. exploits another person who engages in prostitution; or
    2. for a material benefit supervises another person's engagement in prostitution, determines the
        place, time, extent or other circumstances of the engagement in prostitution, or takes measures
        to prevent the person from giving up prostitution, and in that regard maintains a relationship
        with the person which goes beyond a particular case, shall be punished with imprisonment
        from six months to five years.
(2) Whoever professionally promotes another person's engagement in prostitution by procuring sexual
    traffic, and in that regard maintains a relationship with the person which goes beyond the
    particular case, shall be punished with imprisonment for not more than three years or a fine.
(3) Whoever commits the acts named in subsection (1), numbers 1 and 2 or the promoting indicated in
    subsection (2) in relation to his spouse, shall also be punished pursuant to subsections (1) and (2).

Section 182 Sexual Abuse of Youths
(1) A person over eighteen years of age who abuses a person under sixteen years of age, in that he:
    1. commits sexual acts on the person by exploiting a coercive situation or for compensation, or
        allows them to be committed on himself by the person; or
    2. by exploiting a coercive situation induces the person to commit sexual acts on a third person or
        to allow them to be committed on the person by a third person, shall be punished with
        imprisonment for not more than five years or a fine.
(2) A person over twenty-one years of age who abuses a person under sixteen years of age, in that
    he:
    1. commits sexual acts on the person or allows them to be committed on himself by the person; or
    2. induces the person to commit sexual acts on a third person or to allow them to be committed on
        the person by a third person, and thereby exploits the victim’s lack of capacity for sexual self-
        determination, shall be punished with imprisonment for not more than three years or a fine.
(3) In cases under subsection (2) the act shall only be prosecuted upon complaint, unless the
    prosecuting authority considers ex officio that it is required to enter the case because of the
    special public interest therein.
(4) In cases under subsections (1) and (2) the court may dispense with punishment pursuant to these
    provisions if, in consideration of the conduct of the person against whom the act was directed, the
    wrongfulness of the act is slight.

Section 184 Dissemination of Pornographic Writings
(1) Whoever, in relation to pornographic writings (Section 11 subsection (3)):
    1. offers, gives or makes them accessible to a person under eighteen years of age;
      2. displays, posts, presents or otherwise makes them accessible at a place accessible to persons
           under eighteen years of age, or into which they can see;
      3. offers or gives them to another in retail trade outside of the business premises, in kiosks or
           other sales areas which the customer usually does not enter, through a mail-order business or
           in commercial lending libraries or reading circles;
      3a offers or gives them to another by means of commercial rental or comparable commercial
           furnishing for use, except for shops which are not accessible to persons under eighteen years
           of age and into which they cannot see;
      4. undertakes to import them by means of a mail-order business;
      5. publicly offers, announces, or commends them at a place accessible to persons under eighteen
           years of age or into which they can see, or through dissemination of writings outside of
           business transactions through normal trade outlets;
      6. allows another to obtain them without having been requested to do by him;
      7. shows them at a public film showing for compensation requested completely or predominantly
           for this showing;
      8. produces, obtains, supplies, stocks, or undertakes to import them in order to use them or copies
           made from them within the meaning of numbers 1 through 7 or to make such use possible by
           another; or 9. undertakes to export them in order to disseminate them or copies made from
           them abroad in violation of the applicable penal provisions there or to make them publicly
           accessible or to make such use possible, shall be punished with imprisonment for not more
           than one year or a fine.
(2)   Whoever disseminates a pornographic presentation by radio shall be similarly punished.
(3)   Whoever, in relation to pornographic writings (Section 11 subsection (3)), which have as their
      object acts of violence, the sexual abuse of children or sexual acts of human beings with animals:
      1. disseminates them;
      2. publicly displays, posts, presents or otherwise makes them accessible; or
      3. produces, obtains, supplies, stocks, offers, announces, commends, or undertakes to import or
           export them, in order to use them or copies made from them within the meaning of numbers 1
           or 2 or makes such use possible by another, shall be punished, if the pornographic writings
           have as their object the sexual abuse of children, with imprisonment from three months to five
           years, and otherwise with imprisonment for not more than three years or a fine.
(4)   If the pornographic writings (Section 11 subsection (3)) in cases under subsection (3) have as their
      object the sexual abuse of children and reproduce an actual or true-to-life event, then the
      punishment shall be imprisonment from six months to ten years if the perpetrator acted pro-
      fessionally or as a member of a gang which has combined for the continued commission of such
      acts.
(5)   Whoever undertakes to gain possession of pornographic writings (Section 11 subsection (3)) for
      himself or a third person, which have as their object the sexual abuse of children, shall, if the
      writings reproduce an actual or true-to-life event, be punished with imprisonment for not more
      than one year or a fine. Whoever possesses the writings indicated in sentence 1 shall be similarly
      punished.
(6)   Subsection (1), number 1 shall not be applicable if the person responsible for the care of the
      person acts. Subsection (1), number 3a, shall not apply if the act takes place in business
      transactions with commercial borrowers. Subsection (5) shall not apply to acts, which serve
      exclusively to fulfil legal, official or professional duties.
(7)   In cases under subsection (4), Section 73d shall be applicable. Objects, to which a crime under
      subsection (5) relates, shall be confiscated. Section 74a shall be applicable.

Section 236 Trafficking in Children
(1) Whoever, with gross neglect of his duties of care and upbringing, leaves his child under fourteen
    years of age with another indefinitely for compensation, or with the intent of enriching himself or a
    third person, shall be punished with imprisonment for not more than five years or a fine.
      Whoever, in cases under sentence 1, takes the child in indefinitely and gives compensation
      therefor, shall be similarly punished.
(2)   Whoever, without authorization:
      1. procures the adoption of a person under eighteen years of age; or
      2. engages in procurement activity which has as its goal that a third person takes in a person
          under eighteen years of age indefinitely, and thereby acts for compensation or with the intent
          of enriching himself or a third person, shall be punished with imprisonment for not more than
          three years or a fine. If the perpetrator in cases under sentence 1 causes the procured person
          to be brought into Germany or abroad, then the punishment shall be imprisonment for not more
          than five years or a fine.
(3)   An attempt shall be punishable.
(4)   Imprisonment from six months to ten years shall be imposed, if the perpetrator:
      1. acts for profit, professionally or as a member of a gang, which has combined for the continued
          commission of trafficking in children; or
      2. by the act places the child or the procured person in danger of a substantial impairment of his
          physical or emotional development.
(5)   The court may in its discretion mitigate the punishment (Section 49 subsection (2)) or dispense
      with punishment under subsections (1) to (3) of participants, in cases under subsection (1), and of
      inciters or accessories, in cases under subsection (2), whose guilt, taking into consideration the
      physical or emotional welfare of the child or the procured person, is slight.

				
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