Decriminalisation of Art. 301: official position of CO ‘Legalife-Ukraine’

Note: Production and trafficking of pornography is completely prohibited in Ukraine. The maximum sanction for violation is imprisonment for 7 years. Criminal liability for such actions contradicts the constitutional rights of citizens and does not meet modern European standards. It is a waste of state resources to prosecute ‘crimes’ that do not pose a real threat to society.

On 11 November 2024, the Verkhovna Rada of Ukraine registered draft law No. 12191 ‘Draft Law on Amendments to the Criminal Code of Ukraine on Improving Its Certain Provisions on Criminal Offences Against Public Order and Morality’. The draft law is intended to remove criminal liability from adults who shoot and distribute videos of intimate content. On 23.12.2024, the Law Enforcement Committee supported the draft law No. 12191 on decriminalisation of porn as a basis.

But the story of decriminalising porn in Ukraine began much earlier. And, as strange as it may seem, this story began with the war.

Let’s recap the background

Since 2012, we have been implementing programs aimed at advocating for the decriminalisation of sex work in Ukraine to protect people who provide sex services. The work has been variable, sometimes we have come closer to our goal, sometimes we have moved away.

The information campaigns of CO ‘Legalife-Ukraine’ on decriminalisation drew public attention to the need to regulate sex work, but probably not enough, given the lack of positive changes in the laws.

And then it happened - first the pandemic, and then the war. In such circumstances, the advocacy process of decriminalisation became even more complicated due to changing priorities in the socio-political context. And the position of the stakeholders who have the legislative initiative remained fluid and dependent on their current interests, political and social processes, etc.

With the beginning of the full scale invasion of russia resources such as OnlyFans and Theronlifans (Теронліфанс) in Ukraine began to donate large amounts of money to the Armed Forces of Ukraine and pay huge taxes, which also strengthened the defence capabilities of our country.

["Teronlifans" is a neologism in Ukraine created by combining the words "territorial defense" and OnlyFans (a service that allows you to get paid for intimate photos and videos).]

The public interest in the situation was fierce, and discussions ensued. Everyone who was not too lazy spoke out, loudly and fiercely, in particular about

• firstly, that sex workers are not such ‘lost whores’, they have social responsibility, love Ukraine, pay their ‘blood money’, etc;
• secondly, it immediately became clear that it was inappropriate to criminalise people who, although they sell illegal sex services, use the same income to help our military in difficult times. Suddenly, a petition to legalise pornography in Ukraine appeared on the President’s website, gaining more than 25,000 signatures and demanding a response from the authorities.

And we rejoiced, did it really make a difference? We were sincerely happy, hoping that our society in the 21st century is finally freeing itself from the blanket of ‘soviet morality’. Especially since many people do not understand what it is, what this ‘morality’ is. Whom does it protect? Because many people know exactly whose pockets it is lining.

It was then that, for the first time, CO ‘Legalife-Ukraine’ together with partners from CO ‘100% LIFE’, the Institute of Legislative Ideas, BRDO (Better Regulation Delivery Office), Theronlifans, DEJURE Foundation, Centre for Economic Strategy, etc. publicly advocated for the decriminalisation of pornography in Ukraine, proposing to abolish criminal liability for the import, production, sale and distribution of pornographic materials (considering pornography, web-camming, etc. as one of the types of sex work).

[Dejure Foundation or Dejure (from the legal de jure or Democracy Justice Reforms), created in 2016, is a Ukrainian non-governmental organisation that promotes judicial reform in Ukraine. Dejure analyses judges’ integrity based on their records and monitors legal developments related to the judiciary of Ukraine.( Wiki)]

Further in 2023-2024

Our joint efforts with our partners resulted in the draft law on decriminalisation of pornography No. 9623 ‘Draft Law on Amendments to the Criminal Code of Ukraine on Ensuring Freedom from Interference with Human Privacy’, which was registered on 18 August 2023.

But, as often happens, the excitement around Theronlifans and their donations from the nudes quickly subsided. It’s understandable: the country is at war, and there are more and more problems every day. During 2023-2024, there was no progress in the consideration of Draft Law No. 9623 by the Verkhovna Rada Committee on Law Enforcement.

Although there were attempts by opponents to interrupt our initiative - an alternative bill was introduced to the Verkhovna Rada of Ukraine, which proposed to partially strengthen liability for pornography under the guise of decriminalization. But there was no progress in its consideration either.

What was going on? In 2023-2024, according to Opendatabot, the number of prosecutions for adult porn increased by 60%, while the number of prosecutions for child porn decreased by 40%. This means that dozens of lives have been ruined by accusations of acts that are not dangerous to fellow citizens, such as adults voluntarily posting their own nudes on social media.

And then, in September 2024, Mr Hetmantsev (Minister of Finances of Ukraine) published data on the income of several Ukrainian authors on OnlyFans, and another scandal broke out with accusations of tax evasion and searches of models, etc.

Finally, on November 11, 2024, the Verkhovna Rada of Ukraine registered draft law No. 12191.

It is the draft law that is the subject of a lot of talk and speculation in the media today, with talk of legalising porn and prostitution, exploiting women and facilitating human trafficking, etc. That is why we must clearly express our position on the proposed changes: What will change in Ukraine after the adoption of this draft law? Will it lead to even greater exploitation of women? Why do we support this draft law? 

OFFICIAL POSITION OF CO "LEGALIFE-UKRAINE" ON THE DECRIMINALIZATION OF ARTICLE 301 OF THE CRIMINAL CODE OF UKRAINE

Of course, our organization only supports such steps. The current wording of Article 301 of the Criminal Code of Ukraine and the practice of its application to cases of creation and exchange of pornographic content on a voluntary basis between adults actually violates the right to freedom from interference in the private life of a person, as well as to respect for human dignity, the right to an adequate standard of living and decent working conditions, the highest attainable level of physical and mental health, and protection from discrimination, defined in a number of international documents, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, etc.

Thus, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees everyone the right to respect, in particular, for their private life, as well as protection from unlawful interference by state authorities in the exercise of this right.

The text of the Convention does not contain a definition of “private life”, since the sphere of private life is broad and diverse. According to the case law of the European Court of Human Rights, components of private life include, in particular, sexual relations. The sexual life of an individual is a part and an important aspect of his personal life. Therefore, it is quite logical that the right to respect for private life also includes the free disposal of one’s body. And in our country there are frequent cases of criminal liability even for the distribution of private photos and videos in private correspondence. So isn’t this an interference in private life?

And the draft law allows for the exclusion of liability in such cases, which will certainly protect the private sphere from state influence.

WHAT SHOULD BE PERMITTED AND WHAT SHOULD BE PROHIBITED IN THE PRODUCTION, STORAGE AND DISTRIBUTION OF PORN

We fully support the strengthening of responsibility for all actions related to minors in the context of pornography. This is an absolutely right step by lawmakers. We also categorically support the criminalisation of human trafficking, including human exploitation, i.e. all forms of sexual exploitation, forced labour or forced services, slavery or practices similar to slavery, servitude, and debt bondage, removal of organs, conducting experiments on a person without his or her consent, adoption for profit, forced pregnancy or forced termination of pregnancy, forced marriage, forced involvement in begging, involvement in criminal activity, use in armed conflicts, etc. However, such actions are already punishable under Article 149 of the Criminal Code of Ukraine.

European countries mostly criminalise certain acts related to pornography that really pose a danger to society, such as the involvement of children or animals, coercion, violence, etc. This is confirmed by the absence of a general ban at the EU level and in individual EU member states (France, Germany, Czech Republic, the Netherlands, and others). And we support this approach. In addition to Ukraine, only the Republic of Belarus, Iceland, Lithuania, and the Vatican have a complete ban on pornography in Europe.

WILL THE DRAFT LAW LEAD TO EVEN GREATER EXPLOITATION OF WOMEN OR, ON THE CONTRARY, WILL IT MAKE WORKERS IN THIS FIELD MORE PROTECTED?

Not all cases of participation in creation of so-called pornographic content would be correctly called exploitation of women.

Firstly, not only women, but also men are involved in such activities.

Secondly, exploitation, including sexual exploitation, can only be said to occur when there is any actual abuse or attempt to take advantage of a vulnerable position, difference in position or trust for sexual purposes, including, but not limited to, obtaining monetary, social or political gain from the sexual exploitation of another person.

Third, decriminalisation and legalisation should not be confused. Draft law 12191 does not provide for the legalisation of porn, as it does not establish procedures for its production and does not change the forms and types of business activity. The draft law does not provide for the production and taxation of pornographic content. Thus, there are no grounds for the headlines in the media that porn is now ‘legal’. It also does not introduce a new type of profession - sex workers. There is no such thing.

The only thing that the draft law guarantees, if adopted, is that adults will not be prosecuted for importing into Ukraine works, images or other items of a pornographic nature, film and video products, computer programs of a pornographic nature for the purpose of their sale or distribution, as well as participation in the filming of such content on a voluntary basis.

And this is quite logical, since, given the modernisation of relations in the field of production, distribution or sale of pornographic items among adults and the absence of criminal liability for such acts in some foreign countries, decriminalisation of these relations will help protect the rights and freedoms of individuals, ensure the exercise of the constitutional right to privacy and have a positive impact on Ukraine’s European integration processes.

CO ‘Legalife-Ukraine’