U.S./EUROPEAN SUMMIT ON MISSING &EXPLOITED CHILDREN  

The Past, the Present, and the Future 

Panel on “What have we learned? Accusation, Psychological and Social Factors” 

Mohamed Y. Mattar, S.J.D.

Adjunct Professor of Law and

Executive Director 

The Protection Project of The Johns Hopkins University School of Advanced International Studies (SAIS) 

25-27 October 2005 

Roche Forum

Buonas, Switzerland 
 

I am delighted to be speaking to you today on such an important issue and a problem that we are all struggling with, especially since it is about children, the child victim and exploitation of children.  

I have been asked to speak for 10 minutes, so I though I would share with you 10 issues, which I believe we have to be thinking about and because of time limitation, let me confine myself to a 1 minute per issue.  
 

Issue 1: Defining Exploitation 

When we talk about child exploitation, we talk about different forms of exploitation and we must be sure that we are covering all these forms when we design the appropriate response to this problem.  

And I propose the following definition:  

“1. Child exploitation is defined to include, at a minimum, sexual exploitation, especially child prostitution, child sex tourism, child pornography, child sex trafficking; economic exploitation, especially child labor; and other forms of exploitation, such as sale of children for illicit adoption, involving child soldiers in armed conflict. 

2. The following categories of children are the most vulnerable for exploitation: unregistered, missing, runaway, throwaway, homeless, unaccompanied, migrant and abducted.”

Under Article 35 of the Convention on the Rights of the Child, “[s]tate parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”  

Article 34 of the Convention on the Rights of the Child provides that “[s]tate Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.” 

Missing children 

The April 18, 2005 UNHCR decision “encourages states to engage in multilateral and bilateral cooperation to ensure, inter alia, the return of the child to the country where he or she resisted immediately before the removal or retention and in this respect, to pay particular attention to cases of international abduction of children by one of their parents or other relatives.” 

As a result of the December 26, 2004 tsunami, at least 162,000 people were killed, at least 26,000 were missing, 1,139 were displaced, and at least 35, 000 children have lost one or both parents in Indonesia alone. This creates a condition of vulnerability.  

Migrant children  

The April 18, 2005 UNHCR decision “calls upon all states to ensure, for migrant children, the enjoyment of all human rights as well as access to health care, social services and education of good quality; states should ensure that migrant children, and especially those who are unaccompanied, in particular victims of violence and exploitation, receive special protection and assistance.”  

Abducted children 

Under the Hague Convention on the Civil Aspects of International Child Abduction, the objective is “to secure the prompt return of children wrongfully removed to or retained in any contracting state,” and “to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.” 

Homeless children  

It is estimated that there are at least 750,000 homeless children in Russia. According to a 2000 survey conducted by the ministry of education, almost 8 percent of Russian homeless children had been engaged in prostitution.

Unregistered children   

Article 7 of the Convention on the Rights of the Child states that “[t]he child shall be registered immediately after birth.” Otherwise, the child lacks legal status.  

An unregistered child is more vulnerable to exploitation and lacks the basic protection that a birth certificate provides against child labor, early marriage, involvement in armed forces,etc. 

Age is essential to determine age of employment, age of marriage, age of sexual consent.   

Unaccompanied children

The United Nations Guidelines on Policies and Procedures in Dealing with Unaccompanied Children seeking Asylum of 1997 define an unaccompanied child as “a person who is under the age of eighteen, unless, under the law applicable to the child, majority is, attained earlier and who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so.” 

The Guidelines state that ‘[a]uthorities at ports of entry should take necessary measures to ensure that unaccompanied children seeking admission to the territory are identified as such promptly and on a priority basis” and that “unaccompanied children should be registered through interviews.

Effective documentation of the child will help to ensure that subsequent actions are in the ‘best interests’ of the child.”  

The Guidelines provide for an access to the territory of an unaccompanied child by stating that “[b]ecause of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.”  

It further states that “[u]pon arrival, a child should be provided with a legal representative” and “[t]he claims of unaccompanied children should be examined in a manner which is both fair and age-appropriate.”  

In addition, the Guidelines provides for access of children to asylum procedures, regardless of their age.

In November 2004, the US Senate passed the Unaccompanied Alien Child Protection Act (S 1129), establishing guidelines for the unaccompanied children arriving to the United States.  
 

Issue 2: The Links

Pornographers see out children already working in prostitution. Some studies showed that exposure to child pornography increases the likelihood of sexual exploitation of children.  

A person in possession of child pornography is likely to be also involved in sexually exploiting children.  

So, at least, there is a link, and sometimes even “causation,” if we accept the argument that possession of child pornography may cause some individuals to commit child sex crimes. 

Some of the distributors of pornography started off by collecting these materials, and then distributed them to make profit.  

The link is also there between adult pornography and child pornography. Many start accessing adult pornography and then move to child pornography.  

In Sweden, 38% of those convicted of child pornography has also been convicted for other sex crimes against the child in the same case.

Link between Child Sex Tourism and Child Pornography

In United States v. Seljan, on October 2003, John W. Seljan, 85 year old, was arrested in Los Angeles as he attempted to board a flight to the Philippines, where he intended to have sex with two girls aged 9 and 12.

At the time of his arrest, Seljan was found to have pornographic materials. On March 28, 2005, John W. Seljan was sentenced to 20 years in prison.

In United States v. Datan, on November 19, 2004, Edilberto Datan, age 60, was indicted on charges of child sex tourism and charges of producing, importing, and possessing child pornography. 

Datan has been arrested on November 4 th as he returned from a 2-month trip to the Philippines. He was carrying approximately 100 sexually explicit mages of Filipino boys.  

Datan pleaded guilty in March 2005 admiting he had sex with four Filipino boys and that he produced child pornography outside the United States.   

On June 17, 2005, Datan was sentenced to 17 years in prison for:

Link between child sex tourism and child trafficking 

The other link between child sex tourism and child trafficking must be examined, and we, at The Protection Project, are studying this link in different countries.  

But there are studies that show, for instance, that Costa Rican minors are trafficked internally to the tourist points for sexual exploitation.  

Adolescents from Colombia, Dominican Republic and the Philippines are being trafficked to Costa Rica in areas known as sex tours destinations.  

Young girls in Dominican Republic, attracted by the presence of foreigners, often fall into the hands of traffickers who exploit them in prostitution. 

Cambodian children are being trafficked to Thailand and send to the main tourist areas for prostitution.  
 

Issue 3: Does adult prostitution facilitate child prostitution?  

According to the Preamble of the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others “prostitution and the accompanying evil of the traffic in persons are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” 

A false distinction is sometimes drawn between adult prostitution and child prostitution.  

Clients of adult prostitution are moving to the young and the virgin for the fear of being infected with HIV/AIDS, and based upon this fact some argue that decriminalization of prostitution is better as of creating safe sex, so the clients no longer resort to children out of fear of being infected with HIV/AIDS from adult women in prostitution. According to this view prostitution should be legalized and brothels licensed.   

Studies shown that “the presence of pre-existing adult prostitution” market is a factor contributing to sexual exploitation of children.  

In the Untied States, 80% of women in prostitution enter into the prostitution market before they are 18 years old.  
 
 Issue 4:  Demand 

The UN Resolution on Eliminating Demand for Trafficked Women and Girls for All Forms of Exploitation calls upon governments to “[t]ake all appropriate measures to eliminate demand for trafficked women and girls for all forms of exploitation.” 

The UN Protocol on trafficking recognizes the link between demand and trafficking. Article 9(5) of the Protocol states that “states Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters exploitation of persons, especially women and children, that leads to trafficking.”  

Few legal systems fully comply with this mandate 

The 1998 Swedish law on the Prohibition of Purchase of Sexual Services criminalizes only the purchase, and the attempted purchase, of casual sexual services, while selling sex is not considered a crime.   

The Swedish law provides that "a person who obtains casual sexual relations in exchange for payment shall be sentenced-unless the act is punishable under the Swedish Penal Code-for the purchase of sexual services to a fine or imprisonment for at most six months."    

In some legal systems knowledge of trafficking makes the customer liable.  

This approach is adopted by Article 418-a of the Criminal Code of Macedonia which provides that “[t]he one that uses or enables another person’s usage of sexual service from the person for whom he knows are victims of human trafficking will be punished with imprisonment from six months up to five years.”   

Article 19 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings, which has been signed by 16 countries, states: “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings.” 

The United States Protect Act of 2003, Section 105, penalizes a person who enters the United States or travels abroad for the purpose of engaging in illicit sexual activity with a child.  

Punishment for such offence is imprisonment for a term up to 30 years.  
 
 Issue 5: Family 

As state by the UNHCR decision of April 18 2005, “[r]ecognizing that the family is the basic unit of society and as such should be strengthened, that it is entitled to receive comprehensive protection and support, that the primary responsibility for the protection, upbringing and development of children rests with the family…bearing in mind that in different cultural, social and political systems, various forms of family exists” 

The April 18, 2005 UNHCR decision consequently provides for “ensuring that a child shall not be separated from his or her parents against their will, except when consistent with the Convention on the Rights of the Child,” and “taking all necessary measures to prevent and combat illegal adoptions.” Consequently, inter-country adoption is to be considered as a last option.  

The 1993 Hague Convention on Protection of Children and Co-operation in respect of Inter-country adoption recalls that “each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,” and further recognizes that “inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.” 

Article 21 of the United Nations Convention on the Rights of the Child states that “[s]tates [p]arties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall… [r]ecognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin.” 

However, sale of children for illicit inter-country adoption should be recognized as a serious crime.  

Children are being trafficked from countries of the Americas for the purpose of adoption, especially from Honduras, Ecuador, El Salvador, Venezuela, and Guatemala.  

In Guatemala, inter-country adoption is a big business. Some estimates indicate that up to $20 million enters the economy of Guatemala through inter-country adoption.   

Poor, single mothers, unaware of their legal rights, are targeted by baby brokers and coerced into giving up their newborns.   

It has been reported that lawyers representing American couples also send out brokers to search for potential baby donors in the poorest neighborhoods in Guatemala.  

These brokers befriend the pregnant women and introduce the idea of giving up their babies, even offering to pay for medical bills.  

It has been reported that 98 percent of all adoptions in Guatemala are international, 62 percent of which go to families in the United States who pay between $20,000 and USD $24,000 for a child.   

From 1995 to 1998, the number of visas for Guatemalan babies adopted by American couples totaled 879.   

Statistics show that 12 percent of babies adopted from Guatemala are sent to France, six percent to Canada, five percent to Spain, and two percent to Italy.   

In most countries, courts or government agencies oversee adoptions, but in Guatemala, mothers can directly relinquish their newborn babies to a lawyer who arranges adoptions.   

Increasing demand for children has caused husbands to become baby brokers.   

In some cases, husbands have beaten their wives until they agree to give up their babies and have “pocket[ed] the price…for selling the newborns.”   

According to the Special Rapporteur to the UN on the Sale of Children, Child Prostitution, and Child Pornography, “the robbing and sale of babies in Guatemala within the international adoption process is a common practice.”  

The report states further that such illegal adoptions occur because of the involvement of a large number of parties, many of them high-ranking, including lawyers, notaries, doctors, and judges who facilitate the legal adoption of stolen babies.  

Another reason cited for the high number of illegal adoptions is the fraud committed against young mothers who are tricked or drugged into signing or placing their thumbprints onto blank pieces of paper that are later filled in to read as papers consenting to the adoption.  

These adoptions are made easier because they are subject to minimal governmental interference. 

Also, the adoption agencies arrange illegal adoptions of children from the Dominican Republic to the United States or Puerto Rico.  

I believe that they should also be subject to criminal liability under the law. 

The situation with illegal international adoptions appears to be also very severe in some countries of Central Asia.

For example, Kazakhstan is said to hold the eighth place in the world in the number of children sold abroad.  

Some of the reported cases of trafficking of children for illegal adoption from other Central Asian republics include a case suggesting the involvement of Uzbek and Kyrgyz citizens in exporting newborn babies to Israel, and a case involving two Tajik doctors and a nurse from one of the maternity wards in Dushanbe, who were convicted for selling a newborn boy for US$ 500 and a newborn girl for US$ 300, although it is unclear for what purpose the babies were sold.   

The sale of children abroad for adoption is prevalent in Central Asia for several reasons.   

With deterioration of access to medical care that followed the break down of the Soviet Union, home deliveries have become more common in the region, and children born outside of hospitals are often not registered officially with the Central Asian governments.   

These unregistered children become more vulnerable to exploitation.   

This vulnerability must be addressed in accordance with Article 7 of the United Nations Convention on the Rights of the Child, which provides for the right of every child to be registered.  
 
 
Issue 6: Age of a child

Age of a child

The Rights of the Child Convention defines a child as a person who is under 18 years of age. However, the legal definition of a “child” varies from one legal system to another.  

The child pornography law of Australia defines a child as a person under 16 years of age.  

In England, the law makes it a criminal offense to posses, take, distribute or exhibit “indecent” photograph of a child but the law defines a child as a person under 16.  

In the Netherlands, it is illegal to manufacture, disseminate, transport or export pornography of a child under the age of 16, while the laws of the United States and Canada prohibits pornography of children under the age of 18.

Age of marriage

Marriage below the legal minimum age is what we call early marriage or child marriage and it should be prohibited.  

But what is the “age of marriage”? 

The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages does not determine a specific age as the legal minimum age for marriage.  

The April 18, 2005 UNHCR decision considers early marriages as “harmful tradition or customary practices.” 

Millions of girls are married at a very early age. 

For the purpose of applying the rules that protect children against sexual exploitation, a child must be defined as a person who has not attain the age of 18 regardless of the legal age of consent in a legal system.  

Consequently, while a person under the age of 18 may consent to sex, such a person is legally incapable of consenting to any form of sexual exploitation, including prostitution, sex tourism, pornography or sex trafficking.  

Consent in any of these cases is irrelevant.  

So, for instance, the age of consent in Finland is 16 years, in Iceland it is 14 years.  

In Italy it is 13 years if the sexual activity is taking place among minors whose age gap is not wider than 3 years of age, and it is 14 years if the sexual activity is among minors or between a minor and an adult, and it is 16 if the sexual activity is between a minor and an adult living with the minor or taking are of the minor.  

The age of consent in Norway is 16 years, and it is 15 years in Sweden. 
 
 Issue 7:  Extraterritoriality

Although organized crime should not be required for the establishment of a crime of exploitation of children, it may be considered an aggravated circumstance that enhances the penalty.  

Russia has inadequate laws controlling the production and distribution of child pornography.

The maximum sentence for production or distribution of child pornography is six years in prison, which may be enhanced to eight years in cases involving teachers or parents.  

In addition, the law is poorly enforced.  

At least 50 countries still do not have a specific anti-trafficking legislation that recognizes trafficking in children as a specific crime.  

I was in Mexico last week testifying before the Mexican senate and making an argument that existing legal frameworks are inadequate and ineffective in combating trafficking in persons, especially women and children.

Extraterritoriality

The doctrine that is important to combat demand in sex tourism is the doctrine of “extraterritoriality.” 

Tourists travel to countries of destination that have “lax laws” and lack adequate legislation that punishes a sex tourist or do not enforce such legislation. 

So, countries of origin must enact laws that hold their nationals criminally liable for acts they committed outside their territory.  

This is what we mean by the doctrine of “extraterritoriality” as basis for jurisdiction.

And this is the case under the penal code of Thailand that amended the Act whereby the code has expanded the jurisdiction of Thailand to cover “indecent sexual acts” and “trafficking offenses” provided in section 282 and 283 of the code, irrespective of where such offenses are committed or the nationality of the offender. 

It is encouraging that in addition to extraterritoriality the international community is now considering trafficking in persons as a crime against humanity that is to be universally condemned under article 7 of the International Criminal Court statute.

Double Criminality/Serious Penalty

But there are problems in the application of an extraterritorial legislation. 

One is the age of a child. 

1. While article 1 of the Convention on the Rights of the Child defines a child as “every human being below the age of 18 years,” the Convention allows state parties to recognize the age of majority earlier.
2. The age of legal consent also varies from one country to another
3. The 1994 Australian sex tourism law prohibits an Australian from engaging in sexual activities with children under the age of 16 while abroad. 16 is also the age recognized in the extraterritorial laws of the Netherlands and Belgium, while France and Sweden are satisfied with the age of 15.

We need a “uniform age of consent,” preferably 18. Otherwise, the tourist will go free every time he has sex in a country of destination that has a lower age of consent and the extraterritorial law requires “double criminality.” 

And this is why an effective extraterritorial legislative should not require double criminality. 

Unfortunately, unlike the laws in the U.S., Germany, Australia and Belgium, the laws of Sweden, The Netherlands and Switzerland will not prosecute a citizen for the crime of sex tourism committed in another country, unless his action constitutes an offence that violates the law in both countries, the country of origin and the country of destination where the crime has been committed.

Another problem besides double criminality is double jeopardy.

The law of Sweden, for example, does not allow a Swedish judge to prosecute a sex tourist who has been prosecuted in the country of destination or to convict such tourist with a sentence that is higher that the sentence imposed for the crime in the country of destination. 

Conviction for a short sentence or acquittal for sex tourism in a country of destination bars the prosecution of the sex tourist in his country of origin under this interpretation of the doctrine of extraterritoriality. 

The requirement of double criminality in cases involving sex crimes against children must be abolished.  

The double criminality requirement requires for the establishment of the crime that the crime be punishable in the place where it was committed. 

In addition to prison sentences, a legal system must consider:  

• Publishing the names and addresses of the offenders; 
• Forfeiting of assets and using the proceeds of criminal activities to provide for protective measures for children victims. 

The limitation period should not begin until the child victim reaches the age of majority.  

The child witness should be able to testify outside the court.

Sentence

Trafficking in children should always be as an aggravated circumstance that enhances the penalty.  

For example in the United States, the United States Trafficking Victims imposes punishment of imprisonment for 20 years.  

However, in cases of trafficking in children less than 14 years old punishment is enhanced to imprisonment for life.  

Similarly, the Greek Criminal Code punishes a crime of trafficking in persons by imprisonment for up to 10 years and a fine ranging from 10,000 to 50,000 Euros.

Punishment enhances to imprisonment for no less than 10 years and a fine ranging from 50,000 to 100,000 Euros if the crime of trafficking is committed against a minor.  

These are specific offences that must be recognized as separate crimes.  

So, it is not enough to use existing anti-prostitution laws that are designed to criminalize prostitution in related activities such as pimping, pandering or procuring, to cover trafficking for the purposes of exploitation of prostitution of others.  

Similarly, some countries have been utilizing child sexual abuse legislation for prosecution of child pornography offences.  

While the child is sexually abused in making of pornography, the child pornographers should be charged with the crime of production, distribut

ion and possession of child pornographic materials in addition to child exploitation since a record of that exploitation is produced and circulated.  

Issue 8: Liability of legal persons 

The UN Resolution on Eliminating Demand for Trafficked

Women and Girls for All Forms of Exploitation

“[e]ncourages the business sector, in particular the tourism industry and Internet providers, to develop or adhere to codes of conduct with a view to preventing trafficking in persons and protecting the victim

s of such traffic, especially for commercial sexual exploitation, and promoting their rights, dignity and security, including through collaboration with governmental and non-governmental organizations.” 

According to the Council of Europe Framework decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography, Article 6 provides for the principle of “liability of legal persons,” and Article 7 provides for sanctions on legal persons, including “disqualification from the practice of commercial activities” and “ closure of establishment which have been used for committing the offence.” 

It is not enough to penalize the natural person.  

The legal person also needs to be held liable.  

Travel agencies, employment agencies, adoption agencies, matchmaking organizations, advertisement agencies, hotels, restaurants, bars, taxi companies and sex operators must all be criminally liable for any illicit activity that includes exploitation of children.  

Corporations that are involved in illegal acts must be held accountable.  International standards prohibiting involvement of corporations in human rights violations must be fully respected. 

It is important for the companies to develop a Code of Conduct, which should contain the following main six provisions:

1. To establish a corporate ethical policy against commercial sexual exploitation of children; 
   • To train the personnel in the country of origin and travel destinations;  
2.  To introduce clauses in contracts with suppliers, stating a common repudiation of sexual exploitation of children;  
3. To provide information to travelers through catalogues, brochures, in-flight films, ticket-slips, websites, etc; 
   • To provide information to local “key persons” at destinations;  
4.  And to report annually. 

The Internet increased child prostitution, child pornography, child sex tourism, and child trafficking.  

Live sex tours are available on the Internet.  

Cyber-sex has become a billion(s) dollar industry in many countries as well as online trafficking of children, since it is easier to recruit victims of advertise the victims on the Internet.  

The development of digital and web cameras, video and computer technology has increased the production and distribution of child pornography.  

Article 3 of the European Council Decision of 29 May 2000 to combat child pornography on the Internet provides that “[m]ember states shall engage in constructive dialogue with industry and examine appropriate measures, of a voluntary or a legally binding nature, to eliminate child pornography on the internet.”

In particular, the member states “shall examine the … measures, which would place Internet providers under a duty … to withdraw from circulation child pornography material of which they have been informed or of which they are aware and which is distributed through them … ”

However, the Internet service providers have not always been cooperative in fighting child pornography on the Internet. 

In United States v. Kimbrough, 69 F.3d 723 (1995), Terry Burton Kimbrough was sentenced to imprisonment for 72 months “for knowingly receiving, by computer, a visual depiction, which had been transported in interstate commerce and the production of which involved the use of a minor engaging in sexually explicit conduct.” 
 
 Issue 9: Participation

Civil Society

The Council of Europe Resolution on the contribution of civil society in finding missing or sexually exploited children (2001/C 283/01), calling upon member states “to encourage cooperation between the competent authorities and civil society, in particular civil society organizations, in finding missing or sexually exploited children”

(Article 2), including: 

• Providing emergency telephone line; 
• Disseminating information for locating missing children; 
• Making available volunteers for search of missing children; 
• Providing support for families of missing or sexually exploited children; 
• Providing specific expertise in this field. 

NGOs should be able to bring charges against the offender of the sex crime. They should be able to play a part in the pro secution phase. 

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime provides: “[e]ach State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.”

The Protocol also provides that “policies, programmes and other measures established in accordance with [Article 9] shall, as appropriate include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.”

These provisions, in my judgment, establish an international obligation on state parties to cooperate with non-governmental organizations.

Ordinary Citizen

It should be considered a criminal offense: 

· Failure to inform the competent authority of an act that constitutes exploitation of children if the person have the knowledge of it; 

•  Failure to assist a person in danger. 

Council of Europe Decision of 29 May 200 to combat child pornography on the Internet to protect minors from “harmful content” states in Article 1 that “[m]ember [s]tates shall take the necessary measures to encourage Internet users to inform law enforcement authorities, either directly or indirectly, on suspected distribution of child pornography material on the Internet, if they come across such material.  

Internet users shall be made aware of ways to make contact with law enforcement authorities or entities which have privileged links with law enforcement authorities, to enable such authorities to fulfill their task of preventing and combating child pornography on the Internet.” 

So while children must be empowered to report an illicit sexual conduct, a witness to such act must be required to report it, if such person has the knowledge that the act is illegal.  

Article 593 of the Italian Penal Code on Omission to assist a person in danger states that anyone who finds an abandoned child under ten years of age or a person who is not able to take care of him/herself, for mental or physical illness, for his/her old age, or for another reasons, and does not contact the relevant authorities, is punished with imprisonment up to one year and a 2500 euro fine. 

The same penalty applies to anyone who finds an inanimate or seemingly inanimate human body, or an injured person, or a person in danger and omits to assist, help or contact the relevant authorities. 

If injuries occur as a result of the commission of this crime the penalty is increased.  

If death occurs as a result of the commission of this crime the penalty is doubled. 

Section 226 of the Victim of Child Abuse Act of 1990 [United States Code, Title 42 on the Public Health and Welfare, Section 13031 on Child Abuse Reporting] imposes an obligation to report “child abuse,” meaning “ the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child,” on professionals, such as physicians, dentist, nurses, psychologist, psychiatrist, social worker, marriage counselor, teachers, child care workers, law enforcement personnel, foster parents, commercial film and photo processors, while engaged in their professional capacity on federal land or federally operated capacity. Any person who fails report child abuse, as stated in the above-mentioned section, commits a Class B misdemeanor under the United State Criminal Code, Section 2258 on failure to report child abuse.

Issue 10: A Bill of Rights 

The child victim of exploitation must be entitled to basic rights.  

Based upon the standard of the best interest of the child and taking into consideration child sensitive approach I propose the following Bill of Rights on behalf of child victims of exploitation: 

Right to identity

Right to safety

Right to privacy

Right to information

Right to medical care

Right to education

Right to social integration

Right to be heard in court

Right to legal representation

Right to compensation

Right to residency

Right to return 

Consequently, special rules must be adopted to implement these rights.  

The 2005 Council of Europe Convention on action against Trafficking in Human Beings contains a number of provisions addressing the special needs of children victims of trafficking.  

For instance, the Convention calls upon member states to adopt a child-sensitive approach in the development of policies and programs to prevent trafficking. [Article 5(3)]  

Similarly, the Convention calls upon state parties to adopt measures to reduce children’s vulnerability to trafficking in persons. [Article 5(5)]

Furthermore, the Convention states that special measures must be adopted when identifying children as victims of trafficking, including appointing a legal guardian, and keeping the identity of children anonymous. [Article 10 and 11]  

State parties should provide access to education for children in an effort to assist them in their social recovery. [Article 12(1)(f)]  

Moreover, the Convention provides that the residence permit for child victims should be issued in accordance with the best interest of the child. [Article 14(2)]  

Likewise, child victims should not be returned to their country of origin if such return is not in the best interest of the child. [Article 16(7)]  

The best interest of the child should be also taken into account during the prosecution of traffickers [Article 28(3)].  

To this end, special court proceedings should be adopted to protect children’s private life and safety. [Article 30] 

In regards to rules of testimony, the following is a proposed language based on the United States law, which may be considered.   

“The court shall make a preliminary finding regarding whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public for any of the following reasons: 

· The child will be unable to testify because of fear. 

· The child suffers a mental or other infirmity. 

The United Nations Guidelines on Policies and Procedures in Dealing with Unaccompanied Children seeking Asylum of 1997 establish the “best interests of the child” as basic guiding principle in any childcare and protection action.    

So, the need of children who are sexually exploited through pornography should be addressed, especially their physical and psychological treatment, special shelters for children, legal representation and special testimonial procedures, and compensation for damages.  

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