The Increasing Recognition of Child Rights by European Constitutions and its Relevance for the Criminal Regulation of Sexting

Summary

ABSTRACT

While the United Nations (UN) Convention on the Rights of the Child (CRC) does not require states to elevate children's rights to constitutional status, in recent years various European countries have discussed whether to include specific child rights in their constitutions. This contribution illustrates the remarkably different approach towards the constitutionalisation of the rights of the child shown by Austria, Germany and Italy. Against this background, this contribution explores how these different constitutional perspectives might impact the criminal regulation of ‘sexting’, that is, the consensual exchange of sexual content via information and communications technology. This emerging issue, at the crossroads of the recognition of children's right to privacy and the need to protect them from sexual abuse and child pornography, provides an intriguing setting in which to examine the actual influence of children's human rights. Drawing on this analysis, this contribution argues that a clear constitutional recognition of children's rights may advance their actual implementation in legislation. Furthermore, it elaborates on some key requirements that a rights-based criminal regulation of consensual sexting should fulfil. Child participation in particular is needed in order for the legislator to appreciate the children's situation in full and acknowledge children as full rights-holders. Linking constitutional and criminal law, this contribution provides a thorough analysis of the three countries’ stances towards the rights of the child, as well as their actual relevance as regards a highly sensitive issue with which most legislatures are currently struggling.

INTRODUCTION

While almost all global states have ratified the UN Convention on the Rights of the Child (CRC, the Convention), there is less consensus whether children's rights should be acknowledged by domestic constitutional law. The recognition of children's rights at the constitutional level has been the subject of sparse but pivotal pieces of research. is contribution will qualitatively analyse how the Convention has had constitutional implementation in selected European countries, stimulating normative changes or nourishing a scholarly discussion. To this end, it will take a closer look at Austria, Germany and Italy. While these countries are clearly not representative of the various national stances within Europe, they show a remarkably different constitutional approach in this regard.