Mere Possession of Child Pornography is Penalized

On April 23, 2018 Law No. 27,436 (the “Law”) was passed. It modified Section 128 of the Argentine Criminal Code, which in its previous wording only penalized possession of child pornography when there was an unequivocal intent to distribute or market it.

In the context of different bills intended to penalize mere possession (for more information read Draft Bill Makes Possession of Child Pornography a Crime and Preliminary Approval for Bill on Possession of Child Pornography), the Argentine Congress approved the Law, also establishing an aggravation of the punishment in cases where the victim is under 13 years of age.

Now Section 128 establishes a punishment of 3 to 6 years of imprisonment for those who: “produce, finance, offer, trade, publish, facilitate, disclose or distribute, by any means, any representation of a minor under 13 years of age engaged in explicit sexual activities or any representation of their genital parts for predominantly sexual purposes, as well as that of who organizes live shows of explicit sexual representations in which said minors participate”.

Furthermore, the Law establishes the following punishments:

1. 4 months to 1 year of imprisonment for distribution or commercialization;
2. 6 months to 2 years of imprisonment for mere possession; and
3. 1 month to 3 years of imprisonment for facilitating access to pornographic shows or for supplying pornographic material to minors under 14 years of age.

Finally, the Law set higher punishments when the victim is under 13 years of age.

In so doing, the Law is a response to the growing use of new technologies used to commit crimes related to child pornography. The Law is making progress in the field of the protection of children’s rights in the digital era and in the fight against cybercrime.