New Legal Measures to Prevent Grooming of Under-Age Children

Many people overlook the wide variations across the legal landscape worldwide, often labouring under the impression that the laws and attitudes in the country that they are visiting will be the same as in their home country. Common law and Civil law can be seen in many countries but there are often considerable differences, with separate classifications and punishments for broadly the same crime. The diversity of the law globally can lead to offences where the perpetrator is unaware that they are committing a crime. Protecting the most vulnerable sections of society always takes priority in the vast majority of countries. 

The National Society for the Prevention of Cruelty to Children (“NSPCC”) reports that there has been an 82% rise in online grooming in the past five years. In Italy 46% of young people have experienced unwelcome approaches by adults and in Spain the Online Child Sexual Grooming (OCSG), a child helpline, reports that instances of online are rising, with 17% of young people having been groomed by adults.

The variations in law across the globe is never more significant than in relation to the age of consent, the diversity of legal frameworks and societal attitudes towards the age of consent varies widely and carries sentences that are equally diverse. The variance of the law worldwide can lead to offences where the perpetrator behaves in such a way, that whilst the behaviour may be considered unacceptable by many, they simply do not see their actions as a criminal offence. Protecting the most vulnerable sections of society takes priority in the vast majority of countries.

The age of consent across the world varies from 11 years to 21 years, with the most common ages of consent being 14-16 years. Some countries do not have a defined age of consent but the couple must be married, this is the case in Saudi Arabia, Yemen, Libya, Iran, Pakistan and Qatar. In some countries there is a defence where the two individuals are close in age, usually no more than three years’ difference in age, this is known as a Romeo and Juliet defence. However, if one party has a “position of trust” such as a teacher or doctor this does not apply. England and Wales does not have a Romeo and Juliet law.

Foreign nationals risk serious punishments and often irreparable damage to their reputation if they fail to adhere to the legal age of consent in the country that they are visiting. Also, again, attitudes vary as to what may be an acceptable defence in such cases.

Vincenzo Senatore, senior partner in the London office, commented “The international platforms, through which a considerable amount of the grooming takes place, are regulated by disparate organisations. There appears to have been a marked reluctance to tackle the perceived harms and strengthen the control over such platforms. The platforms themselves are often slow to act on their own self-regulation.” Vincenzo further commented “The major digital centres, Brussels, Beijing, London and Washington, are now recognising the need for oversight and regulation but appear to be taking different approaches using different regulatory approaches. In the UK the latest Online Safety Act compels the international platforms to ensure that they do not host or permit inappropriate or unlawful actions on their sites and must review material before it is made available.”

The Online Safety Act is primarily aimed at protecting the safety of young and vulnerable people and the Government states “...Protecting children is at the heart of the Online Safety Act. Although some content is not illegal, it could be harmful or age-inappropriate for children and platforms need to protect children from it…” Once the new duties the Act introduces are in effect, estimated to be in 2025, Ofcom will have powers to take action against companies which do not adhere to the law, imposing hefty fines on the offending organisations.

If an individual is suspected of perpetrating sexual grooming or other harm to an under-age person is arrested they may be kept in custody or be bailed under certain strict limitations:

• No unsupervised contact with anyone under the age of 18 years
• They may not live or sleep anywhere where there is a person under the age of 18 years
• No online contact with anyone aged 15 years or under

Whilst there is no doubt that many perpetrators of online grooming of young girls are definitely culpable. There are some who become inadvertently caught up through ignorance of the law, often it is the first time the person has ever come to the attention of the police, this has significantly contributed to instances of online grooming, together with inadequate controls. 

There are some situations that offer mitigating circumstances that may be considered by the Court.

• Undercover police officers who actively encourage the perpetrator
•  A credible belief that the child was considerably older
• The belief that the same age of consent applied in the country where the offence took place as their home country and therefore the conversation was acceptable
• The underage person actively encouraged the behaviour

It should be noted that there is no defence in suggesting that the child consented as children under the age of consent cannot legally consent to any sexual activity. Entrapment by vigilante groups is also not an accepted defence. 

Giambrone & Partners lawyers are acutely aware that this is a most complicated area of law that provokes considerable concerns. The new Online Safety Act has introduced new offences related to online grooming.

•  Encouraging or assisting serious self-harm
• Cyberflashing
• Sending false information intended to cause non-trivial harm
• Threatening communications
•  Intimate image abuse

The Online Safety Act puts the onus on the international platforms to take additional steps to protect young people from online grooming by establishing the age of the users to prevent children from accessing content that may lead to grooming. Also, content must be removed that is recognised as potential grooming material. Parents and guardians will have more oversight and control over what children are accessing and reporting systems must not only be available but must clear and accessible.

Giambrone & Partners can advise and guide clients through this challenging area of law.

Vincenzo Senatore has broad experience of UK and international cross-border transactions across a variety of industry sectors as well as international corporate and criminal law. Vincenzo is a formidable litigator with a demonstrable history of bringing successful transactions to successful conclusions, providing legal support to partners and delivering strategic advice to diverse clientele.

He is triply qualified Italian Avvocato (with Higher Rights of Audience) and admitted as Solicitor in England & Wales and in the Republic of Ireland, np. and also qualified to plead before the International Criminal Court in The Hague. He gained his Master of Laws (LLM) in International Business Transactions and Trade Law at the Catholic University of America, Columbus School of Law, Washington DC.

During Vincenzo’s fellowship at the prestigious Stanford Center for Biomedical and Ethics (Stanford University), his research was published in the prestigious peer-reviewed scientific journal Nature Biotech. He also passed the first test (MPRE) to become a California attorney and also became Notary Public for the State of California.

He is also member of the International Criminal Court Bar Association, the Law Society of England and Wales, the Naples Bar Association, and of the International Academy of Financial Consumers (Korea) where he is also editorial member.

Vincenzo Senatore is to date the only Italian lawyer registered in the List of Professionals of the Italian Embassy in Tokyo and the Italian General Consulate in Osaka and heads Giambrone's Japanese Desk in Italy and the firm's offices both in Tokyo and Osaka, through the Strategic Alliances with Kikkawa Law Offices and Meilin International Law Firm

Vincenzo regularly represents large and medium-sized Italian and Japanese enterprises in operations in both countries as well as private clients and entrepreneurs doing business with Japanese companies. His expertise includes a range of cross-border transactions, including M&A, joint ventures, opening branches and subsidiaries, and setting up companies in foreign countries, assisting clients to meet their outcomes.

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