ST 242 of the Criminal Code of the Russian Federation.
1. Illegal production 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 pornographic materials or objects - is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to two years, or forced labor for a term of up to two years, or imprisonment for the same period.
2. Distribution, public display or advertising of pornographic materials or objects among minors or involvement of a minor in the circulation of pornographic products, committed by a person who has reached the age of eighteen, is punishable by imprisonment for a term of two to five years with deprivation of the right to hold certain positions or engage in certain activities. for a period of up to ten years or without it.
3. Acts provided for in parts one or two of this article, committed: a) by a group of persons by prior conspiracy or by an organized group; b) using the media, including information and telecommunication networks (including the Internet); c) with the extraction of income on a large scale - is punishable by imprisonment for a term of two to six years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to fifteen years, or without it.
Note : Large-scale income in this article, as well as in Article 242.1 of this Code, is income in an amount exceeding fifty thousand rubles.
Commentary to Art. 242 of the Criminal Code
1. The subject of the crime is pornographic materials and objects. Pornographic materials - films and videos, printed publications, images, computer information on various media, photographs, picturesque, graphic, literary, and other works, the main content of which is the image of obscene, cynical sexual relations; vulgar-naturalistic depiction of sexual intercourse; various perversions of a sexual nature, etc. Items of a pornographic nature - figurines, models of genital organs, their fragments, dolls - substitutes for a sexual partner, various toys and devices specifically designed to satisfy sexual desire. Pornographic content of objects and materials, lack of artistic, scientific or historical value is established by examination.
2. The objective side is characterized by the commission of one of the actions listed in the law. The production and transportation of pornography across the Russian border can be recognized as a crime only in the case of a special purpose - distribution, public display or advertising. All of these actions must be illegal and carried out in violation of the procedure established by law.
3. It is not a crime for one spouse to demonstrate, with the consent of the other, pornographic materials or items acquired not for distribution or advertising, but solely for their own personal purposes.
4. The qualifying feature is the distribution, public demonstration or advertising of these items among minors (persons under 18 years of age), their involvement in the circulation of pornographic products (Part 2). Involvement - actions of a person aimed at encouraging a minor to make a decision to participate in the commission of one of the crimes listed in the article. Methods of involvement in the commission of a crime can be promises, deception, threats and other methods.
P2P and torrents
The second type of cases under Part 3 of Article 242 of the Criminal Code concerns users who, having downloaded porn products from an intranet P2P file sharing service or torrent tracker, do not close the distribution of these files, thereby, according to the investigator, participating in their distribution. Thus, a resident of Murmansk named Borisov received a suspended sentence of two years for copying five video files to a folder on his hard drive and forgetting to exclude it from the file-sharing network directory. Then everything happened according to the standard scheme - an operative from department “K” entered the word “porn” into the search engine of the file-sharing network, found files from Borisov’s computer in it and recorded them on an optical disk for subsequent transfer for examination.
According to the same scheme, a resident of the Yakut city of Neryungri Perevalov received two years of suspended imprisonment, who did not close the distribution of pornographic films on a file hosting service, thereby committing “deliberate illegal distribution of pornographic materials by providing the opportunity for mass viewing and copying of them by an unlimited number of people, using the distribution service network,” but was stopped in time by an operative.
“Thus, Perevalov, knowingly knowing about criminal liability, distributing pornography, put his mercantile interests above the interests of society. The court regards this circumstance as an encroachment on the moral principles of an indefinite number of people, including children, which indicates an increased social danger of the crime committed, and does not provide grounds for changing the category of the crime,” the court decision says.
Second commentary to Art. 242 of the Criminal Code of the Russian Federation
1. The commented norm has an international legal origin (see Geneva International Convention “On the Suppression of the Distribution and Trade in Pornographic Publications” of October 12, 1923).
2. The object of the crime is public morality in the sphere of sexual relations.
3. The subject of the crime is pornographic materials and objects.
Pornographic materials should be understood as pictorial, graphic, literary, musical and other publications (photographs, paintings, drawings, posters, films and videos, audio recordings, etc.), in which sexual intercourse is depicted in a crudely naturalistic, obscene manner with an emphasis on physical contact between sexual intercourse organs and on the physiology of sexual relations.
Pornographic objects are understood as objects that crudely naturalistically depict human genitals (erect phallus, phallus at the moment of orgasm, etc.).
4. It is necessary to distinguish from pornographic materials and objects works of an erotic nature, which also depict sexual relations, but without crude naturalism and without arousing unhealthy sexual emotions. To determine the pornographic or erotic nature of materials, art criticism, literary criticism, sexology and other examinations should be carried out.
5. The objective side of the crime is characterized by illegal actions in relation to pornographic materials or objects: production, movement across the State Border of the Russian Federation, distribution, public demonstration, advertising.
6. Manufacturing means the creation of an original or a copy of a pornographic work, regardless of the method of copying.
7. Moving across the State Border of the Russian Federation means both illegal import and illegal export from the country of the subject of a crime.
8. Distribution means the transfer of pornographic materials or objects for any reason to at least one person (sale, donation, delivery for viewing), but does not constitute signs of distribution; joint viewing, for example, of a pornographic video film acquired exclusively for joint use by spouses, relatives, etc. P.
9. Public demonstration should be understood as providing pornographic materials or objects for group perception (viewing, viewing, reading, etc.).
10. Advertising pornographic materials or objects means exposing them to the public, organizing a pornographic show, announcing, using them in television commercials, etc.
11. Since the crime in question is constructed according to the formal type, it is considered completed from the moment of commission of any of the actions listed in the disposition. Advertising and public display are considered a complete crime from the moment they are put on display or for sale.
12. The subjective side is characterized by direct intent. For the production and illegal movement across the border, a mandatory sign of the subjective side is a special purpose - distribution, public display or advertising of the produced pornographic materials or objects.
13. Any person who has reached the age of 16 can be the subject of a crime.
14. Part 2 provides:
– distribution, public display or advertising of the same materials or items among minors;
- involvement of a minor in the illegal trafficking of pornographic products.
In these cases, the subject of the crime is an adult. 15. Particularly qualified types of this crime (Part 3) are characterized by its commission:
a) by a group of persons by prior conspiracy or an organized group;
b) using the media, including information and telecommunication networks (including the Internet);
c) with the extraction of income on a large scale (i.e. in an amount over 50 thousand rubles - note to the commented article).
"My videos"
The practice under Part 3 of Article 242 of the Criminal Code, described in the Rospravosudie database, can be conditionally divided into two large blocks of cases. In the first, VKontakte users who added pornographic videos to the “My Videos” section and did not restrict access to their page are subject to criminal prosecution. “Operational information” about the existence of such pages “receives” to department “K” under the Ministry of Internal Affairs, then the operative receives permission for the “operational search activity “Collecting samples for comparative research”” - in other words, downloads the videos onto an optical disk. The argument that they are pornographic is confirmed by art criticism, on the basis of which the operative writes a report on the discovery of signs of a crime, and then transfers it to the municipal department of the Ministry of Internal Affairs, which initiates a criminal case. To identify the person administering an account with a particular ID, the investigator sends a request to , which in response transmits the phone number associated with the page and other user data.
Thus, in 2013, a resident of the Volga region working-class village of Bazarny Karabulak created a VKontakte account and, according to the verdict, “acting deliberately, […] began to search for pornographic videos from other users, viewing them and making sure that they contained pornographic scenes,” and then, “realizing his criminal intent,” he added “more than 30 audiovisual files of pornographic content from the pages of these unidentified users, that is, he deliberately created the opportunity to download and view these files.” The judge gave him a suspended two-year prison sentence, citing violations of the Russian criminal code and the Geneva International Convention of September 12, 1923, “On the suppression of the circulation of pornographic publications and the trade in them.”
The same convention became the basis for the suspended sentence of two and a half years for a resident of the city of Serdobsk, Penza region, named Ustinov, who added three videos to the “My videos” section, according to the court decision, knowing that they “contained demonstrations of sexual deviations and paraphilias, […] causing sexual reactions in the form of arousal [and] capable of creating a cynical, immoral attitude towards sexual life.” Ustinov’s fellow countryman Yurkin, who registered on VKontakte under the nickname “Denis Batonov,” received two years probation for posting three videos in which the recipient’s attention “was fixed on the genitals, manipulations with them, as well as on the sensations of the characters and on sexual paraphilias aimed at sexual arousal of the recipient beyond any artistic or educational purpose.”
According to the counter, these files had six, nine and seven views.
Luck of Department "K"
Formally, by initiating criminal cases under Article 242 of the Criminal Code based on a simple search for users with porn content on social and file-sharing networks, operatives act within the framework of the law. However, this leads to the fact that they simply do not need to track the real distributors of prohibited materials, says lawyer Domkin.
“I don’t know of cases where either the creator of this content or its real distributor, I don’t know, the owner of a porn site, was pressed. No, they are pressing boys who are at the stage of puberty, due to which such interest arises. I have not met a single serious person who is actually involved in the distribution of these products and distributing them on an industrial scale. Probably because no one needs it,” he says.
According to him, the large number of sentences under Article 242 does not reflect the real number of crimes, but the convenience of this composition for increasing detection rates. His colleague from Izhevsk, Albert Ikhsanov, also agrees with Domkin.
“Instead of solving a serious crime, it’s easier to quickly look on VKontakte, draw up an act and attract someone, some boy. This requires very little time. The investigation into the case has been going on for, well, a month at most. An operational-search activity, recording the fact of distribution - well, within one day maximum, more likely even two hours. A month for the investigation, and a trial under a special procedure in one court session. But it turns out that they solved a serious crime and received a guilty verdict, which for statistics couldn’t be better,” he says.
Expertise
In both cases, the work of the operatives was reduced to a few clicks without the use of any special software. Judging by the verdicts from Rospravosudiya, most often they use the Opera browser to view video files and the VKMusic plugin to download them. Further development of the case under Article 242 depends on the investigator and art experts, who, due to the absence of a legally defined concept of “pornography,” compete in the elegance of formulations.
For example, an expert from Yakutia describes the videos given to him as the subject of research as follows: “They belong to the category of pornographic products according to the following criteria: their content is aimed at a crudely naturalistic depiction of scenes of sexual life, at arousing base feelings. Sexual acts are depicted in an obscene form, focusing on the genitals, that is, they are an end in themselves. In addition, these files do not carry any literary, artistic or scientific value; there is no artistic goal or storyline of the producers.”
His Khakass colleague is more verbose: “They demonstrate a vulgar-naturalistic, obscene depiction of sexual relations between sexually mature people, encroaching on public morality, [...] they do not carry any artistic, psychological, aesthetic, or meaningful meaning, their content is based on a naturalistic depiction scenes of intimate life, the subject of the image is a demonstration of sexual intercourse, group sex, human genitals. In them, sexual acts between people are cynically and plurally presented in both ordinary and perverted forms. According to the plan, the presented video materials are aimed at arousing lust (gross-sensual sexual desire). Human sexual behavior is depicted in a cynical and obscene manner.”
At the same time, lawyer Domkin notes, almost any graduate of a specialized university can now conduct an art history examination if they have the necessary experience. “Expertise - they just show off, more and more every year. If previously two departments made them for the whole country, now these conclusions are issued in each region. There are now thousands of these expert firms,” he says.
Sentence
Lawyer Domkin sees two reasons why only suspended sentences are imposed under Article 242, although the legislator defined it as grave. And both have nothing to do with the humanity or common sense of judges.
“Since we do not have a legislative definition of the concept of pornography, but operatives initiate criminal cases, investigators initiate them, and the prosecutor’s office turns a blind eye, judges have to, in order not to spoil the statistics, make compromise decisions - so that the person remains free, but so that he does not complain anywhere, did not try to reach the Supreme Court. The solution is to give him a suspended sentence,” he says.
The second reason is, in the vast majority of cases, the young age of those accused under this article, and, as a consequence, their reluctance to deal with the pressure of the investigator. “According to my observations, people between the ages of 16 and 25 are being persecuted. A young man posts something similar to pornography on his VKontakte page, an operative identifies him, they come to him, conduct a search, everything is serious - a criminal case - the guy’s tears flow, and so on. They tell him: “Okay, we’ll make sure you don’t go to jail, but to do this you need to admit your guilt.” A person confesses at the investigation stage, goes to court under a special procedure, and the judge, with a light heart, assigns him a suspended sentence. We are talking mainly about young people, since a person aged, say, 40 years old, cannot be told such lies - the likelihood is too high that he will express a desire to defend himself, say - let the investigator prove his guilt if he is actually guilty of something. it's my fault. But young people are simply being psychologically broken,” says the lawyer.
In Domkin’s practice, there were only two cases when his clients, accused of distributing pornography, refused to admit guilt and went to the end in court, however, they were charged with 242.1 - “Production and circulation of materials or objects with pornographic images of minors.” According to the lawyer, it took his clients from a year to a year and a half for the case to be closed without reaching trial for lack of evidence of a crime. “They took an aggressive position, defended themselves, challenged every step: “You claim that this is pornography - prove it, justify it, make a reference to the law, indicate which law I violated when I transferred this content to someone, explain.” But such a law simply does not exist, and at this point the investigators simply merged,” recalls Domkin.
Intent
After the examination has shown that we are talking specifically about pornography, the investigator is faced with another task, which must be solved in order to develop the criminal case towards a conviction - to prove the intent to commit distribution.
When adding porn content to the VKontakte page, this happens automatically - by registering on the social network, the user checks his agreement with its rules prohibiting the distribution of such materials, which means, investigators and judges decide, he cannot but know that he is violating them, and have no intent to violate them. In the case of P2P file sharing services and torrent trackers, as a rule, there is no such checkbox, but this does not interfere with the investigation.
“In this case, everything happens orally, during interrogation as a suspect. Something like this dialogue takes place between the investigator and the suspect: “Did you install a torrent client? - Installed it. — How does it work, can you explain? “So-and-so.” And that’s all, this one phrase during an oral interrogation is enough to prove intent - if a person agrees that he knows how a torrent works, then he agrees that, being aware of this, he downloaded porn content from other users, while simultaneously distributing it , which means he had the intent to distribute,” explains lawyer Domkin.
