A/HRC/42/7/Add.1
Convention on the Rights of the Child is applicable and must be considered by the relevant
authorities when dealing with such crimes, regardless of its formal transcription into the
Criminal Code.
12.
Moreover, given the broad range of the conducts described in the Criminal Code,
which are subject to the courts’ and doctrine’s interpretation and densification, the
catalogue of behaviors effectively prosecuted in Portugal as child pornography may even
extend beyond those included in the Optional Protocol.
13.
Therefore, the adoption of a legal definition of child pornography is unwarranted.
138.5 Take the necessary measures to adequately address sexual violence in laws
and policies, and ensure that all forms of non-consensual sexual acts are included in
the definition of rape under the Criminal Code
14.
Following the Council of Europe’s Group of Experts on Action against Violence
against Women and Domestic Violence (GREVIO) evaluation in January 2019, Portugal is
preparing legislative measures to implement its recommendations, which involve
restructuring the description of the crime of rape and sexual coercion focusing
unequivocally on the central element of lack of consent.
15.
Pursuant the Portuguese legal tradition, however, the qualification of all nonconsensual sexual acts as rape cannot be accepted. In fact, the Portuguese Criminal Code
foresees a range of crimes against sexual freedom which entail lack of consent (such as
sexual coercion or sexual abuse) but that are not qualified as rape. This differentiate
catalogue of crime is grounded on a political option of the Portuguese legislator taking into
consideration the severity of the conducts and of the harm produced as a consequence. It is
Portugal’s understanding that qualifying all these conducts as rape could lead to
undermining the protection granted to the victims and add unwanted complexity to this
provision.
138.6 Adopt specific legal provisions to criminalize child trafficking for sexual
purposes and sexual exploitation in the context of travel and tourism
16.
The Criminal Code already criminalizes and adequately punishes child trafficking
for sexual purposes as well as the many forms sexual exploitation of children may take.
17.
Article 160 of the Criminal Code foresees the crime of trafficking in persons,
including children, in line with the Palermo Protocol. The description of the crime of
trafficking in persons encompasses several purposes, including sexual exploitation.
18.
The Criminal Code criminalizes a range of conducts of sexual nature perpetrated
against children (sexual abuse, resort to children’s prostitution, incitement to prostitution of
children, child pornography, grooming). These conducts are punished regardless of the
context in which they are undertaken, be it in the context of travel or tourism or other.
Therefore, the criminalization of sexual exploitation specifically in the context of travel and
tourism is unwarranted.
19.
Moreover, a proposal for the criminalization of preparatory acts for this effect is
currently under appreciation, namely, the organization of travel arrangements for the
purpose of sexual exploitation of children. This amendment will increase the protection
conferred to children in risk of being sexually exploited.
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