Legislation needs to enable cross-border responses to protect children everywhere and avoid impunity for offenders. States need to enact comprehensive extraterritorial legislation and extradition mechanisms and adopt measures to remove practical and procedural obstacles that affect the applicability of these provisions.
Extraterritorial jurisdiction for sexual exploitation of children reduces impunity by allowing for the prosecution of crimes that offenders may have avoided punishment for because of weaknesses or loopholes of the legal system in the country they committed a crime. It can also deter offending in the first place as avoiding prosecution is technically impossible, regardless of where in the world the offence is committed.
The applicability of extraterritoriality jurisdiction for all offences of sexual exploitation of children must be based both on the nationality of the offender and the nationality of the victim. Countries should ensure they are able to prosecute offences of sexual exploitation of children based on the nationality or residence of the offender, hence taking responsibility to prosecute their own nationals/residents irrespective of where in the world the offence takes place.
If countries cannot prosecute alleged offenders of sexual crimes against children based on their nationality/residence status, then these individuals could choose to travel to countries with tolerant laws to commit crimes against children, knowing that they will not be prosecuted after returning home.
In 2016, a French citizen was sentenced by a criminal trial court to sixteen years of imprisonment and a treatment order part of a ten-year social/judicial supervision for having raped and sexually assaulted at least 66 underage boys in Sri Lanka, Tunisia, and Egypt between January 2002 and December 2011. After the FBI identified the man in 2011 through child sexual abuse material circulating online, the offender was tracked down and arrested by the French Police the following year.
Countries should also protect children who are their nationals by prosecuting under national laws foreign offenders who sexually exploit them, even when the offence takes place abroad. This is especially important in cases where children are trafficked across borders to be abused.
If national legislation does not provide for such possibility, child victims could only obtain justice in the country where the crime was committed even if it is not their country of citizenship or habitual residence (in rare cases). Failing to include such provisions, as allowing for extraterritoriality based on the nationality of the victim, can lead to the impunity of the offender if the country where the crime was committed, and the country where the offender is from, do not criminalise the offence; neither country would be able to prosecute the child sex offender.
Children who are sexually exploited have a right to access justice and legal remedies. Access to justice should be available wherever the child is. The economic and psychological costs of travelling back to the country where the crime took place to access justice could result in re-traumatisation and additional harm for the child or simply represent an impossible barrier that deters the child or their family from seeking justice.
Once a country has established its jurisdiction over a case, an investigation starts. The often-transnational nature of crimes of sexual exploitation of children implies that in cases where the alleged offender is abroad, the authorities might need to request their enforced return to face prosecution and/or punishment. This process is known as extradition.
Strong extradition mechanisms that encompass all offences related to sexual exploitation of children make it possible to close loopholes that foster child sex offenders’ impunity. This is particularly important when the offender is likely to travel to another country, as the exploitation may not be detected until the offender has departed the country where the offence took place.
The number of countries that have incorporated in their national legislation the possibility of applying extraterritorial jurisdiction over offences of child sexual exploitation continues to increase. However, some obstacles remain both at the practical and procedural levels. The enforcement of extraterritorial jurisdiction is subjected to a number of procedural conditions that further complicate its application.
A practical obstacle is the need for strong and constant international cooperation between law enforcement agencies and judicial authorities of different countries. Such cooperation faces formidable practical problems, including language barriers, differing organizational arrangements and cultures between police forces, problems identifying contact points for information exchange and requests for evidence, delays in transferring or exchanging documents, difficulties in gathering material evidence and testimony from abroad, and differences in national laws for data protection among other issues.
Additional challenges arise in cases of child sexual exploitation with an online element, due to the intrinsically transnational nature of online evidence and the requirement of specific expertise and highly technical tools for the effective policing of these crimes.
The enforcement of extraterritorial jurisdiction is subjected to a number of procedural conditions that further complicate its application.
The requirement of double criminality, for example, is one of the most common conditions and it requires that an offence must be considered a crime both in the State exercising extraterritorial jurisdiction (or the requesting State in extradition cases) and in the State where the offence was committed (or the requested State in extradition cases).
Double criminality, when required in cases of sexual exploitation of children, can make extraterritoriality and extradition inapplicable if the offences are not criminalised in one of the countries or their definitions differ from country to country. Furthermore, double criminality may encourage offenders to seek out countries with weaker laws, where children are not adequately protected, and can prevent other States from exercising extraterritorial jurisdiction or extradition.
Beyond double criminality, one common limitation of extradition is the prohibition of States to extradite their own nationals. This principle potentially challenges the possibility of States to prosecute foreign offenders for sexual exploitation of children offences committed within their territory if the offender flees the country and returns home after committing the offence.
States must amend their criminal law to ensure cases of sexual exploitation of children are prosecuted and offenders apprehended no matter their or the victims’ nationality and the location committed crime.
Among others, States should:
