The Israeli State Attorney, Mr. Shai Nitzan, recently published new guidelines outlining prosecutorial policy on offenses related to possession, use and distribution of pedophilic content. The guidelines outline a strict approach toward offenders, both in respect of the criteria for prosecuting offenses related to pedophilic content and the sentences that prosecutors should argue for. The guidelines emphasize the severity of these offenses throughout the chain that begins with the creation of pedophilic content up through its distribution and consumption.
The guidelines set forth an interpretive approach adapted to the distribution channels common nowadays, such as social networks and instant messaging platforms like WhatsApp. The guidelines indicate that with respect to pedophilic content, the element of “publication” comprising the offense will be interpreted as making content available to the public (including in small groups) through the use of a computer. It will also be interpreted as distributing pedophilic content onward successively from one person to another where the offender understands that the recipient may forward the content further down the chain. The guidelines explain the concerns underlying pedophilia-related offenses, including the elevated risks of sexual abuse of children, violation of their privacy and dignity and the potential harm to Internet users exposed to such content.
In determining whether to prosecute an offense related to pedophilic content, prosecutors are instructed to take into account the circumstances of the pedophilic publication, such as the storage of pedophilic content on shared folders or its onward distribution. These will be considered “publication”, and the wider the distribution, the more likely prosecutors will indict.
With respect to the offenses of possessing and consuming pedophilic content, the guidelines enumerate the factors that prosecutors will weigh when deciding whether or not to prosecute. These factors include the scope of pedophilic content, the nature of the content (the more severe the content in terms of the protected interests, the greater the public interest in prosecuting the offense), the manner in which the content is maintained (e.g., in backups, indexed, etc.), frequency of use, the age of the individuals depicted in the content and indication of commission of publication and distribution offenses. The guidelines clarify that apart from these factors, determinations will be made on a case-by-case basis in accordance with the extent of public interest in prosecuting each case.
The guidelines also specify how prosecutors should draft indictments on these charges, how digital evidence in these cases should be handled and how sentences should be argued.
The guidelines (in Hebrew) are available here.