Films of the XXX category have long been no longer a rarity and a product only of intimate salons. Explicit and pornographic pictures or videos abound on the Internet. People post their intimate photographs and videos on social networks or share them with each other, believing that the Internet is a secret, and sending and distributing such content is a purely personal matter.
And they are very much mistaken.
Illegal production for the purpose of distribution, distribution, public display or advertising of pornographic materials or objects on the territory of the Russian Federation is a criminal offense. Article 242 of the Criminal Code of the Russian Federation for committing such a crime prescribes punishment in the form of imprisonment for a term of up to 6 years.
What is pornography
The criminal law does not provide a clear understanding of what pornography is. Therefore, when assessing photo and video content, investigative authorities are guided by the definition from Wikipedia, according to which pornography is the depiction of sexual behavior in literature, images, sculptures, films, etc. with the aim of causing sexual arousal.
In contrast to eroticism, which is “the instinct of procreation, ennobled and presented as a spiritual attraction,” and in art “serves as the embodiment of the spirituality of people’s sexual relations.”
Pornography is characterized by:
- obscene, vulgar or immoral depiction or verbal description of sexual intercourse(s) with the intent to achieve sexual arousal;
- deliberate focus on the genitals of the participants while they perform sexual acts, with a detailed description of the latter;
- lack of depiction or description of a person’s emotional experiences and natural sexuality;
- instilling stereotypes of deviant behavior: sexual permissiveness, promiscuity, irresponsibility and cruelty.
Who is subject to criminal liability for distributing pornography?
According to Art. 20 of the Criminal Code of the Russian Federation, any legally capable individual who has reached the age of 16 at the time of the commission of the crime falls under criminal liability for the distribution of pornography.
At the same time, the following are considered criminal actions:
- production of pornography for the purpose of further distribution or public display;
- public display of pornographic material;
- sending pornographic photographs and video images to a specific recipient;
- posting pornographic content on your social network page in the public domain;
- posting pornographic photos and videos on websites.
Commentary on Article 242 of the Criminal Code of the Russian Federation
1. The object of the criminal attack is the moral health of the population.
2. Subjects of infringement - pornographic materials or objects.
About pornography, see paragraph 4 of the comment. to Art. 242.1.
Nude figures themselves cannot be considered the subject of a criminal offense.
3. Unlike Art. 228 of the Criminal Code of the Russian Federation of the RSFSR, the Criminal Code of the Russian Federation recognizes as a criminal act associated only with the illegal production and distribution of pornographic materials and objects. It seems that whether materials and objects are pornographic should be established by an expert opinion, since in modern sexopathology materials and objects of an erotic nature can be used for medicinal purposes, and the difference between pornographic materials and materials of an erotic nature is very fluid.
4. The objective side of the crime is expressed in the following actions: a) production of pornographic items; b) their distribution; c) their advertising; d) illegal trade in pornographic materials.
5. Production should be understood as the creation of pornographic materials by any means (drawing, photography, video filming, etc.).
6. Advertising can be expressed in exposing pornographic material for public viewing, showing it to individuals or a group of people to increase interest in the advertised materials.
7. Distribution is the transfer of pornographic materials to other persons, the organization of showing videos.
8. Illegal trade in printed publications, video materials, images or other items of a pornographic nature means that such trade is carried out without appropriate permission or, although the trade is formally legalized, it is carried out in inappropriate places, is sold to minors, the content of the material differs significantly from the conditions licensing, etc.
9. The corpus delicti is formal. The crime is completed (by composition) at the moment of commission of the actions specified in the law.
10. General subject of a criminal offense - any sane individual who has reached the age of 16 years.
11. The subjective side of the crime is characterized by direct intent. The motives and purposes of the crime are, as a rule, selfish, but they do not affect qualifications, except for the act of manufacturing.
11.1. The production of pornographic materials or objects is a crime if the perpetrator commits this act for the purpose of distributing or advertising them.
12. The use of minors and minors for advertising and distribution of pornographic materials entails the Criminal Code under Art. 242 and 150.
13. What was done falls into the category of intentional crimes of minor gravity.
How to identify those responsible for distributing pornography on the Internet
A special department “K” has been created within the structure of the Ministry of Internal Affairs, which is also involved in identifying crimes in cyberspace. Operational officers browse the vast expanses of the Internet at the request of individuals or as part of an operational activity and, having discovered the fact of distribution or demonstration of photos and videos of pornographic content, document this fact in the presence of witnesses.
Subsequently, by making inquiries, the operational officer finds out that a specific person owns the IP address from where the pornography or social page where the prohibited material was posted was distributed.
It does not matter in which region of the country the crime was discovered - the results of the operational activity will be sent to the region where pornography was distributed to initiate a criminal case.
Well, then to “split” the suspect and collect the necessary evidence is a matter of technique.
How a crime is identified and investigated, in detail...
Child pornography and criminal liability
Unlike “adult” pornography, criminal liability for children’s pornography is much stricter. Article 242.1 of the Criminal Code of the Russian Federation provides for punishment for the distribution of child pornography, a penalty of up to 10 years in prison.
Moreover, the law already specifically defines what constitutes child pornography.
According to the note to Art. 242.1 of the Criminal Code of the Russian Federation under materials and objects with pornographic images of minors means materials and objects containing any image or description for sexual purposes:
-fully or partially exposed genitals of a minor;
- a minor who commits or imitates sexual intercourse or other actions of a sexual nature;
- sexual intercourse or other acts of a sexual nature committed against a minor or with his participation;
- an adult person pretending to be a minor, committing or simulating sexual intercourse or other actions of a sexual nature.
Another thing is that there are no scientific methods for determining the age of persons depicted in photos and videos, which leads to “distortions” in criminal prosecution and quackery of imaginary experts who, on instructions from law enforcement agencies, are ready to make any “conclusion” for a fee.
About responsibility for child pornography, more details...advokat54.su
Judicial practice under Article 242.1 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated June 25, 2019 N 1823-O
Article 242.2 of the Criminal Code of the Russian Federation establishes criminal liability for photo, film or video filming of a minor for the purpose of producing and (or) distributing pornographic materials or objects or engaging a minor as a performer to participate in a spectacular event of a pornographic nature, committed by a person who has reached the age of eighteen (part one), and for the same acts committed: in relation to two or more persons; a group of persons by prior conspiracy or an organized group; in relation to a person under fourteen years of age; using information and telecommunication networks, including the Internet (part two). The term “pornographic materials or objects” used by the federal legislator in this article is disclosed in the notes to Article 242.1 of the Criminal Code of the Russian Federation and is consistent with the definition of “child pornography” in paragraph “c” of Article 2 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, child prostitution and child pornography, and in paragraph 2 of Article 20 of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse.
Determination of the Constitutional Court of the Russian Federation dated March 26, 2020 N 795-O
ARTICLE 242.1 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, V.G. Yaroslavtseva,
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 10, 2019 N 16-UD19-7
convicted by the verdict of the Krasnooktyabrsky District Court of Volgograd dated February 16, 2021 under clauses “a”, “g”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation to 4 years of imprisonment to be served in a general regime correctional colony. By the appeal ruling of the judicial panel for criminal cases of the Volgograd Regional Court dated April 23, 2021, the verdict against Puzyrev I.N. left unchanged.
Determination of the Constitutional Court of the Russian Federation dated April 25, 2019 N 1174-O
According to the applicant, Article 135 “Depraved acts” of the Criminal Code of the Russian Federation does not correspond to Articles 37 and 41 of the Constitution of the Russian Federation, since it allows a medical examination of a minor patient by a medical specialist performing actions included in the methods of such examination to be qualified as indecent acts. In addition, the applicant believes that the interrelated provisions of the notes to Article 242.1 “Production and circulation of materials or objects with pornographic images of minors” and Article 242.2 “Use of a minor for the purpose of producing pornographic materials or objects” of the Criminal Code of the Russian Federation contradict Articles 15, 19 (Part 1 ), 54 and 55 of the Constitution of the Russian Federation, since they allow the retroactive effect of the Federal Law of June 23, 2021 N 199-FZ “On amendments to Article 242.1 of the Criminal Code of the Russian Federation in order to counter the trafficking of pornographic products using minors and (or) among minors and Article 151 of the Criminal Procedure Code of the Russian Federation” in terms of determining the characteristics of materials with pornographic images of minors.
Determination of the Constitutional Court of the Russian Federation dated July 17, 2018 N 2047-O
Article 242.1 of the Criminal Code of the Russian Federation establishes criminal liability for the production, acquisition, storage and (or) movement across the State Border of the Russian Federation for the purpose of distribution, public display or advertising, or distribution, public display or advertising of materials or objects with pornographic images of minors (part one) , as well as for the same acts committed: in relation to a person under fourteen years of age; a group of persons by prior conspiracy or an organized group; with the extraction of income on a large scale; using the media, including information and telecommunication networks, including the Internet (part two).
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 29, 2020 in case No. 31-UD20-15sp-A4
- according to clause “d”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation in the form of 3 years of imprisonment; - according to clause “d”, part 2 of Art. 242.1 of the Criminal Code of the Russian Federation in the form of 3 years of imprisonment. Based on Part 3 of Article of the Criminal Code of the Russian Federation, for the totality of crimes by partial addition of punishments, Ishutov was finally sentenced to 3 years and 6 months of imprisonment to be served in a general regime correctional colony, with a fine of 150,000 rubles.
