A court of appeal in the Netherlands has cleared a 38-year-old suspected paedophile of grooming a 13-year-old boy for sex – because the "teenager" who agreed over the internet to meet him was in fact an undercover police officer.
Legal commentators said last night that the decision – which confirms the ruling of a lower court – could bring to an end the use of adult “decoys” in paedophilia investigations because it establishes that they effectively undermine the legal basis of any prosecution.
“Grooming” became a criminal offence in the Netherlands in January 2010 after it changed its legislation to ratify the Treaty of Lanzarote, which criminalises the use of “new technologies”, particularly the internet, to sexually abuse or harm children.
The court in The Hague heard that the accused, who has not been named, met the officer he believed was a 13-year-old through a website and began to chat with him. The two exchanged a number of messages of a sexual nature and discussed a number of “lewd acts”.
Having established a relationship, the “underage boy” then agreed to meet the accused for sex in return for the payment of an unspecified sum of money – and when the accused arrived he was arrested and subsequently charged with grooming.
Under Article 248e of the Dutch Criminal Code, a suspect may be prosecuted for grooming – which carries a two-year maximum prison sentence – once he or she makes a proposal over the internet to meet a child under 16 for sex.
However, in yesterday’s ruling the judges in The Hague said that the accused could not be convicted of grooming a child for sex because, in actual fact, he had made an appointment to meet a grown man and not a child – and it was not an offence to proposition any person over 16 for sex.
“Making an appointment for sex with someone over the age of 16 is never an offence, even if the suspect thinks he is dealing with a juvenile,” the court said in its published ruling. “In this sense, the suspect’s intentions are not decisive here.”
Criminality
The judges said that if the accused had set up an appointment for sex with a teenager he believed was under 16, and that teenager turned out to be 18, there could, by definition, be no criminality involved.
This, they ruled, throwing out the prosecution, was what had effectively happened in this case when the accused 38-year-old man met the adult police officer.
They said it followed that for the crime of grooming to take place within the meaning of the law it was “necessary” that the intended victim should be under 16 – a crucial decision for future police investigations.
The Netherlands’ public prosecutor can still take the case to the high court, but after two rejections on identical grounds it is not yet clear if there will be a third hearing.
Ireland signed the Lanzarote Convention, also known as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, on October 25th, 2007, but has not ratified it.
