Grooming in Argentina: A Bad Law and a Procedural Waste

by Digital Rights LAC on December 20, 2013


By, Eleonora Rabinovich*

Argentina has a new anti-grooming law. And it’s not good news.

Last month, the Senate passed a penal law that was subject to harsh criticism by human rights activists and several lawmakers. The Higher Chamber rejected the amendments that had been made by the House, following a long discussion that included different voices and sectors, and insisted instead on the drafting a law that disavows the basic principles of a penal law system that is respectful of constitutional guarantees.

The new law incorporates the following text into the Argentine Penal Code: “Any person who, by way of electronic communication, telecommunications or any other data-transferring technology, should contact a minor for the purpose of violating said minor’s sexual integrity shall be subject to six months to four years imprisonment.”

This text has been questioned by different civil society organizations, including the Association for Civil Rights (ADC) and Vía Libre Foundation, who raised their voice in protest over the vagueness and amplitude of the new criminal charge. Representatives like Manuel Garrido also made blunt observations against the draft resolution.

For example, the article incriminates the act of merely contacting a minor; this implies the punishment of an action conducted in preparation of the crime that the law seeks to persecute, which is then committed through an exclusively subjective element that is very difficult to prove. This can open the door to different issues throughout the penal investigation, including breaches of individual liberty and privacy, such as those described by different specialists. The “Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse” stipulates, by case, that the crime is actually committed only if the proposal to meet “was followed by concrete actions for meeting,” even if there was no real abuse.

The new law also seems disproportionate because it foresees the same punishment for contacting a minor as it does for actual abuse. In addition, the text does not specify the age of the minor, which should be consistent with the rest of the penal laws regulating consent from minors.

The criticism to which this law was subjected led to consultation hearings in the House that included sessions in which different sectors and actors were able to voice their concerns. The process was extremely enriching and resulted in the development of a law that overcame many of the issues of the draft that had been partly sanctioned by the Senate.

The version that was approved by the House stipulated that: “Any person who, by way of electronic communication, telecommunications or any other data-transferring technology, should request from a person under the age of thirteen the conduction of any explicit sexual activities or sexual actions, or submission of sexual images of him or herself, shall be subject to 3 months to 2 years imprisonment. The same punishment applies to an adult person who should carry out any of the above described actions toward a person over the age of thirteen and under the age of sixteen by way of deception, abuse of authority or intimidation.” In addition, it also specified that these were privately actionable crimes.

However, the Senate rejected the version submitted by the House and insisted on drafting a highly problematic law, the result and implementation of which will need to be closely followed.
*Deputy Director of ADC

Translated by, Paula Arturo.