The criminalization of grooming in practice: An analysis of Dutch District Court adjudication of article 248e Dutch Criminal Code between 2010 - 2018

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Name

Haverkamp, Ewout

Student number

S2465507

E-mail

e.haverkamp.5@umail.leidenuniv.nl

Date

December 1, 2020

Word count

22.061 Supervisor

Dr E. de Busser

Second supervisor

Dr. T. Tropina

Program

MSc Crisis & Security Management, Faculty

of Governance and Global Affairs, Leiden University

MASTER THESIS

The criminalization of grooming in practice

An analysis of Dutch District Court adjudication of article 248e

Dutch Criminal Code between 2010 - 2018

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Abstract

The Netherlands is one of the most digitalized countries in the world where the internet and mobile devices are ubiquitous. One of the negative consequences is an increased risk of online sex crimes like grooming. In order to protect children from unwanted attention online, and subsequent sexual exploitation and abuse, the legislator criminalized the act of grooming by introducing article 248e to the Dutch Criminal Code in 2010. The question that is central to this thesis is how the district courts have adjudicated the act of grooming, between 2010 and 2018. A systematic content analysis has been utilized to analyze the case law on grooming, which made it a somewhat unconventional marriage between the legal and social sciences. As a result, trends and threads that link the reasoning of districts courts regarding article 248e DCC were distilled and commented on. The findings have shown that there has been a discrepancy between the intention of the legislator when article 248e DCC was introduced and how the courts have reasoned on the acts of grooming. The conclusions from this thesis opens the floor for further research into grooming case law from higher courts or a comparative study on the criminalization of grooming between countries.

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List of figures

2.1 Conceptualization of cyberspace ... 7

4.1 The number of cases and indictments between 2010 and 2018 ... 32

4.2 Age categories of defendants in grooming case law ... 39

4.3 Victims of other offenses ... 52

List of tables

4.1 The number of cases between 2010 and 2018 ... 32

4.2 Overview of article 248e DCC indictment outcomes ... 34

4.3 Overview of article 248e DCC primary indictment outcomes ... 35

4.4 Overview of attempted grooming indictments and outcomes ... 36

4.5 Overview of the ages of defendants ... 39

List of boxes

4.1 Primary and subsidiary indictments ... 33

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List of abbreviations

CBS Central Bureau for Statistics (Dutch)

DCC Dutch Criminal Code (Wetboek van Strafrecht) IT Information Technology

OW Opiumwet (Dutch)

SCA Systematic Content Analysis

List of translations

Child pornography Kinderpornografie

Court case Rechtszaak

Court of appeal Gerechtshof

Conviction Veroordeling

Defendant Verdachte

Diminished capacity Verminderd toerekeningsvatbaar

District court Rechtbank

Dutch Criminal Code Wetboek van Strafrecht

Indictment Tenlastelegging

Legislator Wetgever

Lewd conduct/acts Ontuchtige handelingen

Middle-aged Middelbare leeftijd

Minor Minderjarige (<16)

Offense Strafbaar feit

Primary indictment Primaire tenlastelegging Procedural law Formeel recht

Proven statement Bewezenverklaring Public Prosecution Services Openbaar Ministerie (OM) Subsidiary indictment Subsidiare tenlastelegging Substantive law Materieel recht

Supreme court De Hoge Raad

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1

1. Introduction

The Netherlands is one of the most digitalized countries in the world in which the use of the internet and mobile devices is commonplace. As a result, its society is permeated with digital applications.1

Although this advancement towards a digital society comes with a multitude of positive effects, it is also a cause for concern as it poses risks such as cybercrimes (for example hacking or phishing), and online sex crimes. One of these online sex crimes, the act of grooming, can lead to other offline (sex) crimes like lewd acts and child pornography. As such it poses an increased risk for the safety of children.2

On January 1st_{, 2010 the Dutch legislator criminalized the act of grooming with the}

introduction of article 248e of the Dutch Criminal Code (DCC).3_{With this legal provision the legislator}

tried to ensure that approaching and seducing children via the internet with the intent to commit sexual abuse is punished. Moreover, this legal provision allows for an early intervention to prevent that children fall prey to child molesters.4_{This criminalization therefore has the potential to diminish}

sexual offenses such as the earlier mentioned lewd acts and child pornography.

The fact that technological advancement is cause for concern can also be seen in the development of crime in the Netherlands. The Dutch Central Bureau for Statistics (CBS) reported that since 2016, the total number of registered crimes had diminished, but that the number of sex crimes had increased. In particular the offenses “sexting” and “grooming” have been registered by the police more often and have become a more prominent type of crime within the Dutch society.5_Both

of these sexual offenses are committed through the use of technology like mobile devices and the internet.

It is furthermore argued that because of the technological advancements, the threshold for people to use, but also abuse the possibilities of technology are lowered. It can subsequently increase the chances of someone engaging in (sexual) criminal behavior, that he or she without that technology would not have engaged in. This means that the adverse effect of technological advancement is that it can function as a facilitator for someone to engage in criminal behavior.6_This

is perhaps best illustrated by a Dutch court case from 2008, in which the court considered the following:

“…the person concerned has had pedophilic feelings since he was sixteen years of age. He has always been able to restrict those feelings and keep them within acceptable boundaries. However, when he got access to the internet in 1998, his pedophilic activities sharply increased and his urges became stronger. In 2005, his computer was ceased due to the fact of possession of child pornography.” 7

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2 The person in question dealt with feelings of pedophilia, he was able to contain them prior to having access to the internet. In essence, the access to the internet is what facilitated and increased the urge of that person to act on his feelings and engage in criminal behavior (possession of child pornography, article 240b DCC). It cannot be stated with certainty that without access to the internet, the person would not have acted on his feelings, but the possibilities of the internet made it easier for that person to act on his feelings.

Although in this case the behavior of the person was criminal, he still decided to act contrary to the law. However, one way to increase the protection and digital security is through the legal order of a country as a legal provision that governs and criminalizes certain behavior, which can function as a deterrent for would-be offenders. It is reasoned that the threat of legal repercussions can lead to social conformity where individuals would rather forego certain behavior than to risk legal consequences.8_{Moreover, a legal form of retribution can be incorporated in the legal provision}

as well towards the victims of that criminal behavior.9

The criminalization of grooming in the Netherlands was a direct result of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, also known as the Lanzarote Convention, of which the Netherlands is a signee.10_{As a signee to this}

convention, it was required to “take the necessary legislative measures to criminalize” the act of grooming.

In accordance with the Lanzarote Convention, the Dutch legislator deemed it necessary to protect children against manifestations of sexual abuse within the digital world. In the proposal for the criminalization of grooming, it was argued that the criminalization had the express goal to protect children against the unwanted consequences of a progressing digitalization of society, and the development of technology. Because these modern means of communication - as a result of technological advancement - bring along an increased risk, the possibility that it can facilitate those who want to approach and seduce children for the purpose of sexual exploitation and sexual abuse should not be ignored. To address these potential dangers, the legislator introduced article 248e DCC.11

The Netherlands is a democratic constitutional nation state that has embraced the Latin phrase “Nullum crimen, nulla poena sine lege” as one of the core elements of its law, which can be found in article 1 of the Dutch Criminal Code. This legal provision essentially translates as “no crime without law, no punishment without law”. It means that an act is only punishable if it is criminalized by the law at the time that the act was committed.12_{In other words, a legal framework or legal}

provision needs to be in place for an act to constitute criminal behavior. As grooming was criminalized on January 1st_{2010, any behavior that would meet all the criteria of article 248e DCC,}

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3 The Dutch Criminal Code is part of the codified law of the legal order of the Netherlands. Another source of law is case law (legal decisions from courts).13_{If the codified law is that part of the}

law that has the rules written out, then case law is the interpretation of those rules. The relation between case law and codified law is best illustrated as a coloring page. If the codified law is a coloring page, then the case law is the coloring of those pages by the judges of the court (judiciary).14

This analogy shows that codified and case law are not only closely related, but are also intertwined. Case law can be seen as an indicator of the state in which the legal order of a society is.15_The

focus is on the judicial reasoning of the court, not only because it is a reflection of the law, but also because it is the law. What is more, case law are “detailed repositories” that indicate how the court reasoned to get to their conclusions (and whether someone was guilty of committing a crime).16

Applied to the act of grooming, the case law in which the question whether or not a defendant had committed the act of grooming, would then be an indicator of the state of article 248e DCC. In order to research how the criminal chamber of the district courts in the Netherlands understands, explains and applies (the criminalization of) the act of grooming as laid down in article 248e DCC, the following research question has been formulated:

How is the act of grooming, as laid down in article 248e of the Dutch Criminal Code adjudicated by the criminal chamber of the district courts in the Netherlands between 2010 and 2018?

Adjudication is taken to mean the reasoning and argumentation of the criminal chamber of the district courts in the Netherlands, in relation to the cases (case law) that were brought before them, by the Public Prosecution Services, regarding indictments on article 248e DCC.17

The focus of this research is solely on the substantive law of grooming. Procedural law is outside of the scope of this research, because that part of the law deals with the procedural aspects of the law, instead of the content of criminal behavior, in this case the act of grooming. Substantive law does deal with the various components of article 248e DCC.

The research is demarcated by the timeframe 2010-2018. This has to do with the fact that the first case law (and criminalization of grooming) occurred in 2010. The end date has to do with the fact that article 248e DCC was revised and this update went into effect on January 1st_{, 2019.}

The goal of the research is to gain insight into the reasoning, application and interpretation of article 248e DCC by the criminal chamber of the district courts in the Netherlands. This content analysis serves as an indication of how the judiciary of the Netherlands has governed the act of grooming from a legal perspective, how the courts have interpreted the provision of article 248e and

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4 which difficulties have arisen in its application. It will furthermore give an insight into how the act of grooming has developed in the case law in almost a decade time.

In order to distill this information from the case law a systematic content analysis is used as a research methodology. This type of tool allows for finding common threads that link the decisions of the courts and indicates the significance of certain components of the legal provision, which have occurred frequently.18

It is by no means the objective of this research to gain insight into how often the act of grooming occurred in Dutch society. Coming up with an estimate of how often grooming takes place is difficult, if not impossible, because not all occurrences of grooming were reported to the police (due to various reasons), which subsequently could not be tried before a court of law.19_{The focus lies}

predominantly on gaining an insight into what the courts considered relevant factors in deciding if grooming had occurred and what difficulties have arisen in deciding on an article 248e DCC indictment. The content of the chosen case law is relevant within the broader social and political context of the Netherlands, but the legal context justifies its own merits as well.20

Understanding the legal aspects of the act of grooming is an important undertaking, because the legal provision and case law can increase the security of a society by way of the earlier mentioned deterrent effect of this provision on potential offenders.21_{Moreover, it is an indication of}

how well the Dutch judiciary at the district court level functions and/or grapples with a relatively new legal provision in an online setting. It is said that grooming as a criminal offense is difficult to proof.22

As the act of grooming has been criminalized for a decade in the Netherlands, it opens up the floor for evaluation how the Dutch district courts have explained and applied the provision on grooming against the backdrop of a technologically developing society.

When the legislator introduced article 248e DCC, it acknowledged that the legal challenge stems from the need for the legal order to keep up with technological developments. As technology is in constant flux, so should the legal order be in constant flux. It is in particular the challenge of the legislator to keep up with the developments in technology, and - when necessary - revise them.23_{It is}

the judiciary that can indicate which challenges have arisen.

Legal aspects of grooming have received quite some attention, but how the criminal chamber of the Dutch district courts have rendered its case law on article 248e DCC is much less researched. Although there has been research into cybercrime and legislation in the Netherlands, there has never been an extensive research on the application of article 248e DCC in Dutch case law.

Another reason why research into grooming is a relevant endeavor is the ambivalent position the act of grooming takes between the online and offline world. On the one hand, the act of grooming takes place in the digital world, but it is aimed at potential criminal behavior in the offline world. As such it balances between traditional crime and cybercrime.

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5 The study has relevance for the field of Crisis and Security Management as well. The prominent role that computers, phones and other mobile devices have in the lives of people, and in particular of children (in the Netherlands and in other countries) poses a serious risk for their security and wellbeing. The mere fact that these devices can be used to approach individuals, in particular minors, with bad intentions, can have far stretching consequences for their mental and physical health. Being exposed to any type of sexual abuse or sexual exploitation can have traumatic and detrimental effects on the (psychological) development of these children.24

The following chapter will present the theoretical framework on grooming. This is somewhat of a two-tiered chapter. On the one hand it will give a short background of cybercrime, with a particular focus on grooming. On the other hand, it will explain the legal aspects of the act of grooming, in a general sense and more specifically the legal aspects of grooming in the Dutch Criminal Code. This theory will subsequently serve as the basis on which the relevant case law for this research has been determined, that is analyzed.

The third chapter outlines the methodology that underpins this study. Amongst others, it will explain how the research has been conducted and how a case selection has been made.

In the fourth chapter, the results from the analysis of the selected case law, in light of the theory from chapter two are explained. The analysis discusses on the one hand quantitative aspects of article 248e DCC in case law and on the other hand qualitative aspects of the content analysis of the case law.

The fifth chapter contains the conclusions, based on the theoretical framework from chapter two and the analysis from chapter four.

Overall, the research aims to understand how and why the act of grooming was criminalized, and how this criminalization by the legislator was interpreted by the judiciary, in this case the district courts of the Netherlands.

Notes

1_{Uitvoering van het op 25 oktober 2007 te Lanzarote totstandgekomen Verdrag van de Raad van Europa inzake}

de bescherming van kinderen tegen seksuele uitbuiting en seksueel misbruik (Trb. 2008, 58), Kamerstukken II, 31 810, nr. 3, (2008/2009).

2_{Alisdair A. Gillespie, “Child Protection on the Internet – Challenges for Criminal Law,” Child and Family Law}

Quarterly 14, no. 4 (2002), 411;

“Fighting Cybercrime in the Netherlands,” Government of the Netherlands,

https://www.government.nl/topics/cybercrime/fighting-cybercrime-in-the-netherlands.

3_{Arno R. Lodder, Mark G.A. Egeler & Wanda E.L. van Kerkvoorden, Cyber Law in the Netherlands (Alphen aan}

den Rijn: Wolters Kluwer, 2016), 153.

4_{Uitvoering van het op 25 oktober 2007 te Lanzarote totstandgekomen Verdrag van de Raad van Europa inzake}

de bescherming van kinderen tegen seksuele uitbuiting en seksueel misbruik (Trb. 2008, 58), Kamerstukken II, 31 810, nr. 3, (2008/2009);

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6 Arno R. Lodder, Mark G.A. Egeler & Wanda E.L. van Kerkvoorden, Cyber Law in the Netherlands (Alphen aan den Rijn: Wolters Kluwer, 2016), 153.

K. Lindenberg, “De Lokpuber Verstopt Zich in het Materiële Recht,” Ars Aequi, (December 2016): 943.

5_{“Politie Registreert Meer Zedenmisdrijven” CBS, last modified February 2, 2019,}

https://www.cbs.nl/nl-nl/nieuws/2019/06/politie-registreert-meer-zedenmisdrijven;

“Misdaadcijfers 2018 Verder Gedaald” Politie, last modified January 17, 2019,

https://www.politie.nl/nieuws/2019/januari/17/misdaadcijfers-2018-verder-gedaald.html.

6_{Robert F Meier and Weldon T. Johnson, “Deterrence as Social Control: The Legal and Extralegal Production of}

Conformity,” American Sociological Review 42, no 1 (April 1977), 293.

7_{Rb. Arnhem, 08-10-2008, nr. 05/901049-07, ECLI:NL:RBARN:2008:BF7318 (Rechtbank Arnhem, October 8,}

2008).

9_{“The Role of Cybercrime Law,” UNODC,}

https://www.unodc.org/e4j/en/cybercrime/module-3/key-issues/the-role-of-cybercrime-law.html;

Peter R. Stephenson, “Defining a Cyber Jurisprudence Towards Evolving the Philosophy and Theory of Cyber Law: A foundational Treatise,” CDFSL Proceedings (2017) 127.

10_{Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse,}

Council of Europe, October 2012, 33.

11_{Uitvoering van het op 25 oktober 2007 te Lanzarote totstandgekomen Verdrag van de Raad van Europa}

inzake de bescherming van kinderen tegen seksuele uitbuiting en seksueel misbruik (Trb. 2008, 58), Kamerstukken II, 31 810, nr. 3, (2008/2009).

12_{C.P.M. Cleiren, “Het Legaliteitsbeginsel,” in Jurisprudentie Strafrecht Select, ed. C.P.M. Cleiren, T.A. de Roos}

and M.A.H. van der Woude (Den Haag: Sdu Uitgevers, 2008), 291, 292.

13_{J.W.P. Verheugt, Inleiding in het Nederlandse Recht (Amsterdam: Uitgeverij de Zuidas, 2015), 5.}

14_{“Het Belang van Jurisprudentie,” Wet & Recht, http://www.wetrecht.nl/het-belang-van-jurisprudentie/.} 15_{Arte Brueren, “Jurisprudentie in de Memorie van Toelichting Wetgever en Rechter in Dialoog,”(Master thesis,}

Rijksuniversiteit Groningen, 2018), 5.

16_{Mark A. Hall and Ronald F. Wright, “Systematic Content Analysis of Judicial Opinions,” California Law Review}

96, no. 63 (2008): 87, 90.

17_{“The Dutch Court System,” Government of the Netherlands, accessed November 10, 2019,}

https://www.government.nl/topics/administration-of-justice-and-dispute-settlement/the-dutch-court-system.

96, no. 63 (2008): 64.

19_{Elena Martellozzo, “Online Sexual Grooming: Children as Victims of Online Abuse,” in Cybercrime and its}

Victims, ed. Elena Martellozzo and Emma A. Jane (London: Routledge Taylor & Francis Group, 2017), 118, 123.

96, no. 63 (2008): 99.

22_{Limor Ezioni, The Crime of Grooming, Child and Family Law Journal 8, no 1 (March 2020): 4.}

24_{Molly R. Wolf and Doyle K. Pruit, “Grooming Hurts Too: The Effects of Types of Perpetrator Grooming on}

Trauma Symptoms in Adult Survivors of Child Sexual Abuse,” Journal of Child Sexual Abuse 28, no. 3 (2019): 345;

Helen C. Whittle, Catherine Hamilton-Giachritsis and Anthony R. Beech, “Victim’s Voices: The Impact of Online Grooming and Sexual Abuse,” Universal Journal of Psychology 1, no. 2 (2013): 60.

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2. Theoretical Framework

Digitalization and technological advancements have been important features of contemporary Dutch society. As stated in the introduction, one of its side effects is an increased risk for the security of a society as it opens the door to cybercrimes. Hacking and grooming are examples of these side effects and children are a vulnerable target in particular of the latter crime. In order to understand what grooming exactly entails, it is important to understand the context and background in which grooming takes place.

Grooming is an online offense, which technically takes place within the confines of the world of cyber, but what does that mean? That is the first question that will be answered in this chapter. After grooming is placed within the context of cyberspace, the focus goes to what exactly is meant by grooming, and in particular the legal aspects of grooming. As the legal order of a nation state is one way to govern threats, the second question that will be answered is how the act of grooming is embedded in the Dutch legal framework.

Defining cyberspace

Cyberspace has taken an important place in societies across the globe in the last twenty to twenty-five years, in which these societies have become strongly dependent on information technology (IT) systems. However, there is no uniform definition of cyberspace.1

To understand cyberspace, it can be divided into a technical, a socio-technical and a governance layer (see figure 2.1). Historically the focus

has been predominantly on the technical aspects of cyberspace, complemented by a socio-technical layer. This second layer gave access to ordinary people to make use of cyberspace and undertake cyber activities like the exchange of data and information (email, text messages and entertainment such as music and videos). The third layer is the governance layer which complements the technical and socio-technical layer and entails a large variety of human actors and

organizations.2 _{Figure 2.1 Conceptualization of cyberspace}3

In general cyberspace is used benevolently, but there are also malignant uses of cyberspace, like hacking and grooming (cybercrimes).4_{When there is undesired behavior on the socio-technical}

layer, rules can be introduced to prohibit that behavior through the legal order, which is at the governance level. Applied to grooming, the socio-technical level would be that someone engages in

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8 grooming. The governance layer would be that the act of grooming is criminalized. As shown in figure 2.1, the legal order is one way to govern what happens at the technical and socio-technical level.

Defining cybercrime

As with cyberspace, cybercrime does not lend itself easily to one unified definition.5_{Even though an}

exact definition is lacking, in its essence it is about the abuse of computers.6_{Computer-related crime}

is a well-established type of crime for some time. The increased interconnectivity as a result of the internet is inherent to contemporary (cyber)crime, and thus to grooming.7

Irrespective of the epithet, cybercrime is considered to be a growing contemporary challenge and one of the most harmful and dangerous crimes.8_{However, it is not a legal term. It is better to}

approach cybercrime as an aggregate conceptualization that encompasses various crimes, an enumeration of acts.9_{This umbrella term can be divided into three broad classes: acts against the}

“confidentiality, integrity and availability (CIA) of computer data or systems”, “computer-related acts with the goal of personal or financial gain or harm” and “content related computer crimes”.10

Gaining illegal access to a computer system is a crime that belongs to the first category, the act of grooming (as the use of a computer system is required) belongs to the second category and the earlier mentioned child pornography (images and videos) belongs to the third category.11

Defining grooming

Following the distinction made in the previous section, the act of grooming belongs to the second category that entails the use of computer systems in a malicious way for personal gain, which can be detrimental to others. Stated differently, the technological developments such as the ubiquity of the internet, have added to the “toolbox” of those who want to engage minors in sexual acts.

However, this does not explain what grooming exactly means. The word grooming can be defined as nurturing and taking care of a person or an object.12_{In a semantic sense, it has existed}

long before it became a (legal) term to describe a criminal act, and has been used to describe various human behaviors, amongst others, taking care of one’s appearance. Although the word grooming is still used to explain that type of behavior, it is also used to explain the behavior of a child molester who tries to get access and control over a child (previously described as “seduction”).13

A plethora of definitions on grooming have come to the fore in recent years, which usually involve the same elements. In a general sense, grooming can be defined as “the process whereby an older, more sophisticated, and experienced person identifies a potential victim, entices or coerces the child into a “relationship” where she or he is abused, and maintains the child’s silence.”14_{It can}

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9 where he or she can be sexually exploited or abused”. Both definitions are relatively similar, but are not restricted to the act of grooming in cyberspace.15_{On the contrary, neither definition makes}

mention of any type of computer system.

Restricting the act of grooming to the confines of cyberspace, grooming is described as a mode of operation in which a perpetrator approaches a child online, with the intention to meet offline, for the purpose of sexual abuse and/or exploitation of that child.16_{Put differently, a}

perpetrator seduces or lures children into sexual behavior or conversations with or without those children’s knowledge, with the intent of arranging a meeting with a child in the “real world” to engage them sexually.17

The act of grooming can generally be divided in two distinct states. In the first stage, the perpetrator observes and identifies potential victims, for example in chat rooms. In the second stage, the perpetrator tries to establish contact with the victim and engage that victim in personal and private interactions.18

This second stage encompasses the communication whereby the perpetrator aims to meet the potential victim and lure the child into a situation with the intention to sexually abuse and/or sexually exploit him or her. The perpetrator might do so through the use of pictures, webcams and/or conversations. The goal of the act of grooming is to foster a personal, trust-based contact with potential victims, which might subsequently lead to the obtainment of more personal and intimate information of the target, which the perpetrator can then use to engage in more elaborate grooming activities, which might lead to an actual meeting between perpetrator and child.19

Because the act of grooming is a computer-related act that is committed for the purpose of a personal or financial gain or harm, it means that the use of any type of computer system is inherent to the execution of the crime (which makes it distinct from the previously mentioned definitions of grooming, in which it is not a requirement).20_{This specific type of grooming, the sexual abuse of}

children through the use of the internet by someone they have met there, has become a big concern in the last decade.21

There are a few characteristics for the emergence of grooming as behavior. The nature of the internet allows for relative anonymity, which might lower the threshold for both the perpetrator and victim to engage in certain types of behavior, which they otherwise might not have done.22_{It is}

closely linked to the sense of invisibility because the physical boundaries that are present in face-to-face communication, are not present in the online world.23_{This feature might lead people to be less}

guarded online than they would have been offline, which in its turn might lower the threshold to act more brazen and misbehave more often.24_{This also applies to (would-be) victims, as the online world}

creates a dynamic in which children more easily disclose personal information, which they otherwise might not have done in the offline world.25 _{Furthermore, access to the internet can speed up the}

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10 process by which offender and victim become intimate with one another and steer the conversations towards a sexual one. Moreover, for (would-be) offenders the internet can function as a sounding board to “justify” their acts in online communities.26

Precaution

The earlier mentioned advances in communications technology have also led to a growing sensitivity to the emergence of new risks (for example cyberbullying or online sexual predation) that require preventative measures to diminish those risks.27_{Precaution is one response to address those}

challenges. In this way it is essentially about risk management and appraising threats as a response to uncertainty.28

Criminalizing the act of grooming is somewhat reminiscent of the precautionary principle in the sense that the approach is one of “better safe than sorry”. The competent authority, in this case, the legislator, takes measures to prevent risks to public health and safety, in this instance children, where the protection of these children has the highest priority.29_{Precaution is a legal doctrine in}

which the risk of considerable harm or threat thereof, requires decision-makers to act. This is both an option and an obligation.30_{Moreover, it can be seen as a principle that helps society deal with the}

challenges that it is facing.31_{Technological development frequently brings two challenges with it: the}

use of a certain type of technology might be a risk to human health and safety and that it can be used to harm moral interests.32

The concept of the precautionary principle advocates that in doubt, unambiguous evidence is not a necessity before one acts, and should act, on behalf of the (potential) victim of the threat.33

This is reflected in the criminalization of grooming as well because it serves to protect children against physically meeting an adult whom they met online. Even if that meeting were to occur, it does not necessarily mean that lewd acts, or the fabrication of child pornography will occur, which means that there might not be any harm done to the child. However, by criminalizing grooming, the legislator tried to shield children from that possibility. As such it has the characteristic of precaution and can be considered a precautionary-based approach.34_{With its preventive nature, it serves the}

purpose of care and protective responsibility to shield children against sexual predators.35

In this sense it is also a step away from a more traditional thought of crime and punishment in criminal law, and arguably a step away from the adage of “innocent until proven guilty”.36_The

legislator has favored the safety of children, who are potential victims, over the potential offenders. Also, precaution rests on the presumption that emphasizes human health over, i.e. legal rights.37_In

traditional criminal law, uncertainty might lead to innocence, but due to the precaution, uncertainty is no longer a reasoning that exonerates.38 From this perspective, the law can then be seen as an

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11 impediment to prevent certain harms and dangers.39_{Applied to the criminalization of grooming, it}

can be seen as a way of counter law that tries to manage potential perpetrators by surveilling and monitoring them. It could even be undermining established legal norms or standards such as “innocent until proven guilty”.40_{Moreover, even though precaution has the goal to prevent harm}

from happening, criminalizing, policing and punishing has the risk that precaution is used excessively or arbitrarily.41

On the other hand, a lack of evidence that harm will occur, does not mean that harm will not occur either.42_{Decision-makers in this case, as with precaution in general, are faced with a dilemma}

of balancing between the freedoms and rights of individuals versus the need to reduce or eliminate the risk of negative effects.43_{The goal of precautionary approaches is to evade certain adverse}

consequences. With it, it can also lead to disregarding negative consequences (like infringing on legal rights of those who are considered would-be offenders, but did not commit any offense and had no intention to do so) that result from taking that precautionary approach.44

Due to technological advances, states have also faced political pressure to protect against these threats. This created a situation in which the higher the uncertainty for public safety is, the more pressing the responsibility to take preventive actions becomes. This has resulted in a “preemptive or preventive turn” that led to calls for protection against threats such as sexual predators, against whom new preventive laws and measures should be taken.45_{These measures}

essentially criminalize behavior prior to the prohibited harm has been done. On the one hand, it is required that intent to cause that harm was present, and on the other hand, that acts towards completing that goal were undertaken.46_{The criminalization of grooming prohibits harm that can be}

done by way of lewd acts or the fabrication of child pornography. Laws in relation to sexual predation have experienced a preventive surge of criminalization, but have also seen nascent conduct being criminalized, like the act of grooming with the purpose of executing a sexual offense.47

The legal development of grooming

The development of grooming has taken root in the legal sense, although it is a question to what extent cyberspace and in particular grooming can be regulated.48_{Nonetheless, that an online}

environment does not always lend itself easily to regulation, does not mean that there is no regulation. Legal provisions that criminalize the act of grooming are a way to regulate the behavior that constitutes the preparation to abuse a child in the real (offline) world.49

There have not only been efforts on the national level of individual states to regulate the act of grooming. Deliberations on prohibiting the act of grooming have also taken place on an

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12 international level, between the governments of states. For instance, within the European Union or within other international organizations.

The act of grooming is laid down in article 6 of Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography. It requires that:

“Member States shall take the necessary measures to ensure that the following intentional conduct is punishable: the proposal, by means of information and communication technology, by an adult to meet a child who has not reached the age of sexual consent, for the purpose of committing any of the offences referred to in Article 3(4) and Article 5(6), where that proposal was followed by material acts leading to such a meeting, shall be punishable by a maximum term of imprisonment of at least 1 year.” 50

Furthermore, article 23 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (also known as the Lanzarote Convention) requires from its member states that:

“Each Party shall take the necessary legislative or other measures to criminalize the intentional proposal, through information and communication technologies, of an adult to meet a child who has not reached the age set in application of Article 18, paragraph 2, for the purpose of committing any of the offences established in accordance with Article 18, paragraph 1.a, or Article 20, paragraph 1.a, against him or her, where this proposal has been followed by material acts leading to such a meeting.” 51

From both articles it becomes apparent that they share a number of elements that are essential to what should be constituted as grooming in a legal sense. In order to fulfill the criteria of grooming, there should be an “intentional proposal”, by “an adult”, with the use of “information and communication technology”, with the intent to “meet” a “child” and engage in “sexual activity”. The second part of both articles states that there should be a “material act” that have led to a meeting, which means that if someone did not undertake any material acts to meet a child, it would – technically - not be considered a solicitation of a child for sexual purposes, i.e. grooming.52

The criminalization of grooming in the Lanzarote Treaty is specifically designed to address the grey area in which the perpetrator did not yet commit the actual sexual abuse, but where the open means of communication of the internet are abused to approach children and seduce them into abuse.53_{This rationale falls in line with the negative consequences of technological development}

which have been discussed earlier.

It is not required that the contact through the internet leads to an actual physical contact between the perpetrator and the child, or that a sexual act is performed by the child. The main focus

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13 is on the communication phase, in which the child is worked on and seduced by the perpetrator through the use of the internet.54

What is required by the Lanzarote Convention, is that the behavior of the perpetrator materializes into a proposition for a meeting with the child, that is followed-up by material acts leading to a meeting. In order for a perpetrator to actually engage in criminal behavior, the mere fact that he communicates with the child, through the use of the internet, and engages in sexually oriented conversation, is not sufficient to constitute an act of grooming. It is essential that the communication phase leads to a proposition for a meeting and the execution of an act that is aimed at realizing that meeting. This underlines the commitment of the perpetrator to his intention to advance from digital abuse to physical abuse.55

Article 248e of the Dutch Criminal Code

A legal provision on the act of grooming was first introduced in the Dutch Criminal Code on January 1st,_{2010. It criminalized preparatory acts for sexual activities with children under the age of sixteen}

and for the fabrication of child pornography.56_{The bill regarding article 248e of the Dutch Criminal}

Code on grooming was aimed at execution the abovementioned Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.57_{The additional value was}

primarily found in the fact that the Lanzarote Convention takes into consideration the consequences of the progressive digitalization of society and development of technology.58_{In order to keep up with}

this convention, technological development and growing and alarming phenomenon in Dutch society, the Dutch legislator deemed it necessary to criminalize grooming.59_{It did so in article 248e}

Dutch Criminal code, in which the act of grooming was described as:

“ He who, by way of an automated work or by use of a communication service, proposes a meeting, with the intent to commit lewd conduct, or to create an image of an sexual act in which that person is involved to a person of whom he knows, or reasonably should know that this person has not yet reached the age of sixteen years, will be, if he undertakes any act aimed at realizing that meeting, punished with an imprisonment term with a maximum of two years or a fine of the fourth category.” 60

The rationale behind this provision was that it allows for an early intervention to prevent a would-be child molester from committing a crime. The provision constitutes in essence a preparatory act.61

In the explanatory memorandum of article 248e Dutch Criminal Code (2008), grooming predominantly was considered the approaching and seduction of a child on internet websites, in particular social network- and profile websites) or in chatrooms, news groups or MSN-groups, with

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14 the goal to commit sexual abuse with that child. Grooming is most often a long-term process whereby the perpetrator, by frequent chat- and e-mail contact, slowly but surely gains the trust of the child, seduces the child to share intimacies and through this process prepares the child in the digital world, for the sexual abuse in the psychical world. Due to the concerning nature and scope of this phenomenon, and the increase in notifications on the act of grooming, legal protection of children, by way of criminalizing the act of grooming was warranted.62

In order for children to be protected effectively, it was necessary to act through the use of criminal law, but it does not require children to physically meet the perpetrator and be exposed to a potentially dangerous situation. It suffices if the perpetrator is on his way to the location that he agreed upon with the victim, or if the perpetrator gives directions to the meeting place to the victim, or other types of concrete preparation, aimed at realizing that meeting.63

The components of Article 248e Dutch Criminal Code

Article 248e DCC can be subdivided into four components: a) he who, by way of an automated work or by use of a communication service; b) person of whom he knows, or reasonably should know that this person has not yet reached the age of sixteen years; c) proposes a meeting, with the intent to commit lewd conduct, or to create an image of a sexual act in which that person is involved; d) if he undertakes any act aimed towards the realization of that meeting, is punished with an imprisonment term of two years maximum, or a fine of the fourth category.64

The perpetrator

Although the provision on grooming does not stipulate the age of the perpetrator, the priority is on the protection of minors against older people, in particular middle-aged men. Theoretically speaking a sixteen-year-old is equally culpable as a 65-year-old, but the question of culpability in terms of age (other components not taken into consideration) is a grey area. If the age difference is only two years (for example seventeen years and fifteen years), then there will most likely be no prosecution. The larger the age-gap is (also when it concerns two minors), the more likely prosecution becomes.65

Automated work or communication service

Article 248e DCC makes a distinction between an automated work and a communication service. The reason for this division is to avoid a discussion on the question whether or not the sending of a text message (SMS) constitutes the use of an automated work.66

The terms “automated work” and “communication service” existed prior to the going into effect of article 248e DCC. An automated work is any device that is intended to store, process and

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15 transfer data electronically. A communication service is a term used in the Dutch Code for Criminal procedures. Both terms are used together to cover the definition “information- and communication technologies” as laid down in the Lanzarote Convention. This latter term does not exist as such in Dutch law.67

In this way, the definition in the Dutch Criminal Code encompasses both computer systems and for example mobile phones. This is done because technology keeps on developing and new functionalities are added to mobile phones, such as the possibility to communicate via email and internet on mobile phones. This was deemed important as children are using text messages and email functions of mobile phones at an increasingly younger age, and it cannot be ruled out that grooming might occur via the use of these means of communication as well.68

Age

The Lanzarote Convention makes it mandatory for member states to specify when a child is sexually a minor, according to their national law. In Dutch law, the age is set at sixteen years and is aimed to protect upgrowing children to ensure that their sexual and personal development is not in any way damaged.69

Article 248e DCC is similar to article 23 of the Lanzarote Convention, but goes further in one aspect, than the Lanzarote Convention requires. The latter is limited to a proposition done by an adult to a minor, whereas Article 248e is aimed at anyone making that proposition. The rationale behind this is that the system of the Dutch Criminal Code, in general does not limit itself to a limited group of addressees. Furthermore, it cannot be ruled out that action against a minor who engages in grooming, is desirable.70

The wording of article 248e DCC states that the perpetrator knows, or that it should be reasonable for him to suspect that the victim is younger than sixteen years. Usually this is evident, as the perpetrator oftentimes specifically searches for online spaces where there are young people. Nevertheless, sometimes knowledge on someone’s age can be lacking if someone is on an adult dating site and turns out to be a minor. Even though this situation can be perceived as somewhat skewed (as it was the minor that created the situation and not the adult in question), it does not relieve the adult from his responsibility to verify the age of the would-be victim.71

According to the explanatory memorandum, it is not a necessary requirement for the perpetrator to have knowledge of the age of the victim. It suffices if he reasonably should have known that the victim had not yet reached the age of sixteen years.72

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Proposition of a meeting with intent

In order for someone to be culpable of grooming, a proposition for a meeting is necessary. The rationale behind it is that a conversation of a sexual nature with a child, irrespective of the adverse consequences for a minor, should not be criminalized. Thus, the conversation itself does not have to be of a sexual nature. The intention of the perpetrator regarding the meeting should be to conduct sexual activities or to manufacture child pornography.73_{As with article 23 of the Lanzarote}

Convention, article 248e DCC stipulates that the intention of the perpetrator should be aimed at committing lewd conduct, or the fabrication of child pornography. The legislator chose for the phrase “lewd conduct” and “lewd acts”, to exclude youngsters who seduce each other via email or chat to meet up, with the intent to have consensual sexual contact.74

Acting towards realizing a meeting

Article 248e DCC criminalizes the preparation, which makes an actual meeting, or for the perpetrator to be on his way to the meeting, not a mandatory element that needs to be fulfilled in order for a perpetrator to be culpable. What is essential though, is any act aimed at accomplishing a meeting.75

Revision of article 248e Dutch Criminal Code

76

On January 1st _{2019 a revised version of article 248e DCC went into effect. The above-mentioned}

elements were preserved, but the provision was extended with a component on the use of a technical aid such as the use of a virtual creation of a person that has not yet reached the age of sixteen.77

Thought crime?

The criminalization of grooming has been likened to a thought crime, due to the emphasis on the inferred intention of a person, rather than the actions of that person. Because the person is required to have the intention to engage the victim in a sexual act, it is argued that grooming constitutes a thought, which makes the act of grooming lean towards a thought crime.78

When the bill regarding the criminalization of grooming was introduced to the Parliament in the United Kingdom, it was also likened to a thought crime. It was pointed out that the law that prohibits grooming leads to a situation where “people will be prosecuted not for anything they’ve done but for things someone thinks they might do”.79_{The consequence of the bill on grooming}

would be the criminalization of thought, or the coming into existence of “thought crime”.80

On the other hand, it has been argued that the comparison between grooming and a thought crime would be false, as grooming goes beyond the fact that contact and communication are

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17 connected to the arrangement for a meeting, with the intention of engaging a child in sexual acts.81

In other words, in addition to intention, an act is needed to materialize the meeting.

Although grooming is a preventive offense, it is neither a thought crime nor alone in focusing on the intention of an individual. It is more, because when someone engages in grooming, he engages in conduct with the aim to engage in sexual conduct with a child. An overt act is required, which means that it is more than merely a thought crime.82

The Lanzarote Committee released a report on article 23 of the Lanzarote Convention (grooming), in which it reached a similar conclusion. The report stated that an elementary aspect of grooming was the need for proof of the act that the perpetrator was going to meet the potential victim. Without that proof, the defendant can argue that there never was any intention to harm the victim. The online conversations that the defendant and victim have had, might be seen as mere ‘fantasy’ or ‘thought crime’. In order to prevent this, the online evidence needs to be linked to evidence that the defendant actually undertook acts to attend the meeting with the potential victim.83

All in all, the act of grooming is not just about the intention. Preparation of grooming, as an element of conduct, needs to be present because otherwise it could amount to a thought crime.84

Simply having the intention does not automatically lead to criminal liability; it needs to be linked to conduct.85_{Also in the legal provisions on grooming, it becomes apparent that more is needed than}

having intent, as article 23 of the Council of Europe requires “material acts” and article 248e DCC similarly requires, “acts aimed at realizing that meeting”.

Notes

1_{Jan van den Berg, Jacqueline van Zoggel, Mireille Snels, Mark van Leeuwen, Sergei Boeke,}

Leo van de Koppen, Jan van der Lubbe, Bibi van den Berg, Tony de Bos, “On (the Emergence of) Cyber Security and its Challenges for Cyber Security Education,” NATO STO/IST-122 (2014): 1.

2_{Ibid, 2.}

3_{Conceptualization of Cyberspace. Adapted from Jan van den Berg, Jacqueline van Zoggel, Mireille Snels, Mark}

van Leeuwen, Sergei Boeke, Leo van de Koppen, Jan van der Lubbe, Bibi van den Berg, Tony de Bos, “On (the Emergence of) Cyber Security and its Challenges for Cyber Security Education,” NATO STO/IST-122 (2014): 2.

Leo van de Koppen, Jan van der Lubbe, Bibi van den Berg, Tony de Bos, “On (the Emergence of) Cyber Security and its Challenges for Cyber Security Education,” NATO STO/IST-122 (2014): 2.

5_{United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime, New York: United Nations,}

2013, Accessed November 7th_{2019, 11.}

2013, Accessed November 7th_{2019, 4, 5.}

8_{José Grabiel Luis Cordova, Pascual Felipe Correa Álvarez, Fernando de Jesús Echerri Ferrandiz, Julio César}

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18

2013, Accessed November 7th_{2019, 5, 11.}

Leo van de Koppen, Jan van der Lubbe, Bibi van den Berg, Tony de Bos, “On (the Emergence of) Cyber Security and its Challenges for Cyber Security Education,” NATO STO/IST-122 (2014): 2, 3.

12_{Limor Ezioni, “The Crime of Grooming,” Child and Family Law Journal 8, no. 1 (2020), 3.}

13_{Kenneth Lanning, “The Evolution of Grooming: Concept and Term,” Journal of Interpersonal Violence 3, no. 1}

(2017), 5, 6.

14_{Jon R. Conte, “Words Matter: Introduction to a Commentary on Grooming,” Journal of Interpersonal Violence}

3, no. 1 (2017), 3.

15_{Elisabeth Staksrud, “Online Grooming Legislation: Knee-jerk Reguation?,” European Journal of}

Communication 28, no. 2 (2013), 153.

16_{See for example Jonathan Clough, Principles of Cybercrime (Cambridge: Cambridge University Press, 2015),}

378;

Elena Martellozzo, “Online Sexual Grooming Children as Victims of Online Abuse,” in Cybercrime and its Victims, ed. Elena Martellozzo and Emma A. Jane (London: Routledge Taylor & Francis Group, 2017), 110; Tim Owen, Wayne Noble & Faye Christabel Speed, New Perspectives of Cybercrime (New York: Palgrave MacMillan, 2017), 93.

17_{Elena Martellozzo, “Online Sexual Grooming Children as Victims of Online Abuse,” in Cybercrime and its}

Victims, ed. Elena Martellozzo and Emma A. Jane (London: Routledge Taylor & Francis Group, 2017), 110.

18_{Elisabeth Staksrud, “Online Grooming Legislation: Knee-jerk Reguation?,” European Journal of}

Communication 28, no. 2 (2013), 153.

19_Ibid.

Victims, ed. Elena Martellozzo and Emma A. Jane (London: Routledge Taylor & Francis Group, 2017), 108.

22_{Jonathan Clough, Principles of Cybercrime (Cambridge: Cambridge University Press, 2015), 380.}

23_{Elena Martellozzo, “Online Sexual Grooming,” in Cybercrime and its Victims, ed. Elena Martellozzo and Emma}

A. Jane (London: Routledge Taylor & Francis Group, 2017), 108, 109.

24_{Elena Martellozzo, “Online Sexual Grooming,” in Cybercrime and its Victims, ed. Elena Martellozzo and Emma}

A. Jane (London: Routledge Taylor & Francis Group, 2017), 109, 110.

25_{Elisabeth Staksrud, Kjartan Ólafsson and Sonia Livingstone, “Does the Use of Social Networking Sites Increase}

Children’s Risk of Harm?,” Computers in Human behavior 29 no. 1 (2013), 42.

26_{Jonathan Clough, Principles of Cybercrime (Cambridge: Cambridge University Press, 2015), 380.} 27_{Dorothy L. Espelage and Jun Sung Hong, “Cyberbullying Prevention and Intervention Efforts: Current}

Knowledge and Future Directions,” The Canadion Journal of Psychiatry 62 no. 6 (2016), 375;

Roger Brownsword and Morag Goodwin, Law and the Technologies of the Twenty-First Century (Cambridge: Cambridge University Press 2012), 137, 142;

Lucia Zedner and Andrew Ashworth, “The Rise and Restraint of the Preventive State,” Annual Review of Criminology 2 (2019), 435.

28_{Andy Stirling, “Precaution in the Governance of Technology,” in The Oxford Handbook of Law, Regulation and}

Technology, ed. Roger Brownsword, Eloise Scotford, and Karen Yeung (New York: Oxford University Press, 2017), 647, 649, 654.

29_{Didier Bourguignon, The Precautionary Principle Definitions, Applications and Governance, (European}

Parliament, 2016), 1, 6.

30_{Heidi Mork Lomell, “Punishing the Uncommitted Crime: Prevention, Pre-emption, Precaution and the}

Transformation of Criminal Law,” in Justice and Security in the 21st_{Century: Risks, Rights and the Rule of Law,}

ed. Barbara Hudson and Synnove Ugelvik (London: Routledge, 2012), 83 - 100.

31_{Didier Bourguignon, The Precautionary Principle Definitions, Applications and Governance, (European}

Parliament, 2016), 7.

32_{Deryck Beyleveld and Roger Brownsword, “Emerging Technologies, Extreme Uncertain , and the Principle of}

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19

34_{Roger Brownsword and Morag Goodwin, Law and the Technologies of the Twenty-First Century (Cambridge:}

Cambridge University Press 2012), 153.

Technology, ed. Roger Brownsword, Eloise Scotford, and Karen Yeung (New York: Oxford University Press, 2017), 648.

Technology, ed. Roger Brownsword, Eloise Scotford, and Karen Yeung (New York: Oxford University Press, 2017), 647.

38_{Bill Hebenton and Toby Seddon, “From Dangerousness to Precaution Managing Sexual and Violent Offenders}

in an Insecure and Uncertain Age,” The British Journal of Criminology 49 (2009), 346.

39_Ibid. 40_{Ibid, 345.}

41_{Lucia Zedner and Andrew Ashworth, “The Rise and Restraint of the Preventive State,” Annual Review of}

Criminology 2 (2019), 430.

42_{“The Case for a Precautionary Approach to AI,” Today, last modified May 8, 2018,}

https://www.todayonline.com/commentary/case-precautionary-approach-ai.

43_{Roger Brownsword and Morag Goodwin, Law and the Technologies of the Twenty-First Century (Cambridge:}

Cambridge University Press 2012) 142.

44_{Deryck Beyleveld, Roger Brownsword, “Emerging Technologies, Extreme Uncertain , and the Principle of}

Rational Precautionary Reasoning,” Law, Innovation and Technology 4, no.1 (2012), 35.

45_{Lucia Zedner and Andrew Ashworth, “The Rise and Restraint of the Preventive State,” Annual Review of}

Criminology 2 (2019), 433, 434.

46_{Ibid, 435.} 47_{Ibid, 435.}

Victims, ed. Elena Martellozzo and Emma A. Jane (London: Routledge Taylor & Francis Group, 2017), 109, 110.

50_{Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on Combating the}

Sexual Abuse and Sexual Exploitation of Children and Child Pornography, and Replacing Council Framework Decision, the European Parliament and the Council of the European Union, December 17, 2011 2004/68/JHA.

Council of Europe, October 2012, 33

Council of Europe, October 2012, 29;

Articles 3 and 5 of the EU Directive are respectively concerned with sexual abuse and child pornography.

54_{Arno R. Lodder, “Grooming: Over meerderjarigen die internet en jeugdigen misbruiken,” Tijdschrift voor}

Internetrecht 2 (juli 2015): 62;

Uitvoering van het op 25 oktober 2007 te Lanzarote totstandgekomen Verdrag van de Raad van Europa inzake de bescherming van kinderen tegen seksuele uitbuiting en seksueel misbruik (Trb. 2008, 58), Kamerstukken II, 31 810, nr. 3, (2008/2009).

55_Ibid.

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20

58_Ibid. 59_Ibid.

60_{“Wet van 26 november 2009 tot uitvoering van het op 25 oktober 2007 te Lanzarote totstandgekomen}

Verdrag van de Raad van Europa inzake de bescherming van kinderen tegen seksuele uitbuiting en seksueel misbruik,” Staatsblad van het Koninkrijk der Nederlanden, Ministerie van Justitie, 21 December 2009, https://zoek.officielebekendmakingen.nl/stb-2009-544.html.

K. Lindenberg, “De Lokpuber Verstopt Zich in het Materiële Recht,” Ars Aequi, (December 2016): 943.

Internetrecht 2 (juli 2015): 57.

65_{Ibid 58, 59.}

66_{Kamerstukken II, 2008/09, 31 810, nr. 3;}

Arno R. Lodder, “Grooming: Over meerderjarigen die internet en jeugdigen misbruiken,” Tijdschrift voor Internetrecht 2 (juli 2015): 59.

68_Ibid. 69_Ibid. 70_Ibid.

76_{This thesis focuses on a time period prior to when the revised version of article 248}e_{Dutch Criminal Code}

went into effect. This update is therefore not further discussed.

77_{“Wet van 27 juni 2018 tot wijziging van het Wetboek van Strafrecht en het Wetboek van Strafvordering in}

verband met de verbetering en versterking van de opsporing en vervolging van computercriminaliteit (computercriminaliteit III),” Staatsblad van het Koninkrijk der Nederlanden, Ministerie van Justitie en Veiligheid, September 21, 2018, https://zoek.officielebekendmakingen.nl/stb-2018-322.html.

78_{“Grooming for Jihad,” https://www.indexoncensorship.org/2008/01/grooming-for-jihad/.}

79_{Liberty 2003, sexual offences act 2003: Liberty Response Press Release 29 January, in Alisdair A Gillespie,}

“Tackling Grooming,” The Police Journal 77, no. 3 (2004), 248.

80_{Renée Kool, “Prevention by All Means? A Legal Comparison of the Criminalization of Online Grooming and its}

Enforcement”, Utrecht Law Review 7, no. 3 (October 2011), 55.

81_{Will Gardner, “Tackling Sexual Grooming Conference,” Keynote Speech, Westminister, London, September}

29, 2003.

82_{Alisdair A Gillespie, “Tackling Grooming,” The Police Journal 77, no. 3 (2004), 248, 248.}

83_{Lanzarote Committee, Committee of the Parties to the Council of Europe Convention on the Protection of}

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21 of the Lanzarote Convention Concerning the Online Solicitation of Children for Sexual Purposes, otherwise known as “Grooming”, 2014, 3.

84_{Child Wise, Trisha Randhawa and Scott Jacobs, Child Grooming, “Offending all the Way Through From the}

Start” Exploring the Call for Law Reform (South Melbourne, 2003), 23.

The criminalization of grooming in practice: An analysis of Dutch District Court adjudication of article 248e Dutch Criminal Code between 2010 - 2018

Name

Haverkamp, Ewout

Student number

S2465507

E-mail

Date

December 1, 2020

Word count

22.061

Supervisor

Dr E. de Busser

Second supervisor

Dr. T. Tropina

Program

MSc Crisis & Security Management, Faculty

of Governance and Global Affairs, Leiden University

MASTER THESIS

The criminalization of grooming in practice

An analysis of Dutch District Court adjudication of article 248e

Dutch Criminal Code between 2010 - 2018

Abstract

Table of contents

List of figures

List of tables

List of boxes

List of abbreviations

List of translations

1. Introduction

Notes

2. Theoretical Framework

Defining cyberspace

Defining cybercrime

Defining grooming

Precaution

The legal development of grooming

Article 248e of the Dutch Criminal Code

The components of Article 248e Dutch Criminal Code

The perpetrator

Automated work or communication service

Age

Proposition of a meeting with intent

Acting towards realizing a meeting

Revision of article 248e Dutch Criminal Code

Thought crime?

Notes