Experts in the Swiss criminal and legal system are calling for clarification and milder penalties – and for greater efforts to be made in schools and at home – to deal with the rising number of Swiss minors who, intentionally or not, break Swiss pornography laws.
Last year, 224 Swiss minors were sentenced for pornography, representing a nearly five-fold increase from 47 cases in 2011, Swiss newspaper SonntagsZeitung reportedexternal link on Sunday.
In Switzerland, children aged 10 and over are regarded as criminally responsible if they violate laws, but young people between the ages of 10 and 18 who commit crimes are subject to a special form of criminal law, known as juvenile criminal law, the government says.
Younger children are not criminally responsible, it saysexternal link, but the parents of a child under the age of 10 must decide whether and how to react to the child's conduct. If necessary, the guardianship authority can order a child protection measure.
The newspaper cited a case that underscores some of the complexities of a legal system that can criminalise children who may or may know precisely what they are doing. It said a prosecutor received a case of an 11-year-old boy who meant to send to a friend a video that contained simple sex scenes, nothing hard-core, but accidentally shared it with a group chat allowing all his classmates to receive it.
"Very often, we are dealing with teenagers who send pornographic videos and pictures from the Internet into class chat," Patrik Killer, chief prosecutor for Zurich’s youth attorneys office, was quoted as saying. In many cases, a child shows the material to the parents, or the parents discover it on a smartphone. "You report that to the school, which then reports."
Hard-core porn depicting violence or children is forbidden in Switzerland. Children under 16 cannot be involved in any more usual sex movies or pictures.
"The law is intended to protect children – they should not encounter pornography so early," Killer said. "One can ask oneself whether this does not criminalise the young people themselves, who send such content among peers."
In 2013, lawmakers in Switzerland, where prostitution is legal, agreed to make it a criminal act to pay for sex with anyone who is under 18 years old, raising the limit up from 16. It was passed to bring Switzerland in line with a Council of Europe treaty that the country signed in 2010 aimed at protecting children from any form of sexual exploitation or abuse.
Until then, the Swiss had been one of the few in Europe to allow prostitution by anyone who is at least 16, the age of sexual consent, although some cantons and cities set stricter rules. People who consume underage pornography also could be prosecuted.
Niklaus Ruckstuhl, a lawyer and professor of criminal procedural law at the University of Basel, said protective regulations are needed to deal with young people punished for sharing pornography.
"Some sensible measures would be educational courses,” he said. “Prohibitions and penalties, on the other hand, make little sense in such offenses. This motivates young people to the contrary.”
Monika Egli-Alge, managing director of the Forensic Institute of Eastern Switzerlandexternal link, which deals with delinquent minors, agreed.
"Adolescents are often very poor at dealing with the social media and in these things they are too severely punished for stupidity," she said.
Reto Medici, a magistrate of minors for the canton of Ticino, said in most cases just talking with children and the parents is sufficient to prevent infractions from recurring.
"Then I make a reprimand. A kind of yellow card without an entry in the criminal register,” he said. “The authorities in Aargau and Zurich also prescribe in a few cases work assignments or courses rather than buses or imprisonment.”
Many experts say the clarifications and milder penalties are needed to deal with the reality of increasingly sophisticated youth who nearly all have a mobile phone – and access to pornography.
"Unfortunately, the topic is neglected at the schools," said Esther Elisabeth Schütz, director of the Institute for Sexual Pedagogy and Sex Therapyexternal link in Ulster. Children to some degree avoid pornography out of fear of angering their parents, she said, but they could use more help from teachers, many of whom lack the professional knowledge for dealing with the situation.
"They react with their own value propositions and do not have the necessary distance to help the young people adequately,” she said.
swissinfo.ch and agencies/jmh