Legal commentary by Iryna Yakovets on the latest court cases related to porn and the OnlyFans portal in Ukraine

We invited Iryna YAKOVETS, who is a head of the Centre for Legal Support of Science and Technology Development at the Research Institute of Intellectual Property of the National Academy of Sciences of Ukraine and a doctor of law, to comment on recent court cases and criminalisation of sex workers in Ukraine from a legal perspective.

‘Legalife-Ukraine (L-U): Ms Iryna, we welcome you back to our website, and once again we want to ask you to comment on the latest actions of law enforcement agencies and the judicial system.  Recently, the network has been shaken by the news of the conviction of a serviceman with a disability under Part 3 of Article 301 of the Criminal Code of Ukraine (distribution of pornographic materials). How do you feel about this reaction of the state?

Iryna Yakovets: Yes, indeed, on 13.03.2025, the Kyiv District Court of Poltava passed a verdict against a native of Poltava, a citizen of Ukraine, with a university degree, divorced, unemployed, disabled in the 3rd group as a result of the war, and previously unconvicted. This decision concerned 37 episodes of posting content on the dating website Meendo ‘...with a man showing his genitals in a close-up’.

The court found the man guilty of committing a criminal offence under Part 3 Article 301 of the Criminal Code of Ukraine and sentenced him to three years’ imprisonment with an additional penalty of deprivation of the right to engage in activities related to the dissemination of information via the Internet for a period of one year.

The man’s illegal act was to use a Fly mobile phone, model IQ 4490, with Internet access, to create a graphic file with information on the said mobile phone and upload it to the Meendo social network on his own page under the name ‘DODG1979’, which he left in free access for every user of the Internet and the said social network ‘Meendo’, namely, a graphic file with information related to pornographic products, namely, a demonstration of masturbatory actions with the introduction of a dildo into the anus, which he left in free access for every user of the Internet and the said social network ‘Meendo’.

Although this man was not sent to prison (but was released from serving his sentence on probation if he does not commit a new crime within one year and fulfils the obligations imposed on him by the court), I believe that the sentence is too harsh.

It is worth paying attention to how the court defined the main elements of the offence. In particular, the court noted that the accused was aware of the socially dangerous nature of his act;

foresaw its socially dangerous consequences and wished them to occur;

acted intentionally, realising that his actions infringe on the basic principles of public morality in the field of sexual relations and are in clear contradiction to the traditions existing in society, as well as harm the moral education of people, which leads to deformation of moral ideas and concepts of sexual relations between people;

acted in violation of the requirements of Article 2 of the Law of Ukraine ‘On Protection of Public Morality’ of 20.11.2003, Articles 1 and 2 of the International Convention for the Prevention of the Circulation of Pornographic Publications and the Traffic in Them, concluded in Geneva on 12.09.1923.

Let’s take a look at what the social danger of this offence is, as well as other arguments in favour of the expediency of punishing such actions. In this context, the following aspects are usually emphasised:

a) Potential impact on the psyche of children and adolescents.  One of the main theses of the legislator is to protect minors from harmful information that can lead to sexual disorders, distortion of the perception of intimate relationships or involvement in risky behaviour.

b) Violation of the moral foundations of society. The law is based on the presumption that the mass distribution of pornography can destroy moral guidelines, normalise the objectification of the body, violence, and perversion (especially in the case of hard-core or child pornography).

c) Connection with other criminal offences. The pornography industry, especially in the shadow sector, is often associated with: human trafficking (including coercion to participate in pornography), child exploitation, drug trafficking (financing), money laundering.

d) Protection of public space. The distribution of pornography in the public domain (via the media, the Internet, streets, etc.) is considered to disturb the peace of other citizens who do not wish to be exposed to such content.

But are these factors always present? In particular, in the situation described above.

The key condition is the existence of a real public danger. In cases where: the content is created for personal use, there is no access to it by unauthorised persons (especially children), there is no question of sale or mass distribution, the public danger loses its relevance, and criminal prosecution is excessive and violates the principles of justice.

We must remember that the social danger of crimes under Article 301 of the CCU lies not in the mere fact of pornography, but in the mass distribution, uncontrolled commercialisation, and risks to minors and vulnerable persons. Criminal punishment is justified only when there is real harm or threat to society, not just moral rejection of certain forms of expression.

I fully support increased responsibility for all actions related to minors in the context of pornography. I also strongly support the criminalisation of human trafficking, including human exploitation, i.e. all forms of sexual exploitation, use in the pornography business, forced labour or forced services, slavery or practices similar to slavery, servitude, 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.

Liability for pornography should be imposed only when it actually poses a threat to social relations or human rights. 

So what relations were violated and whose rights were restricted as a result of the actions in the case described? What were the socially dangerous consequences, which, according to the court, the man not only foresaw but also wished to occur?

According to Part 3 of Article 301 of the Criminal Code, criminal liability is possible only in the case of: intentional distribution or sale of pornographic materials; the motive of profit, distribution among an indefinite number of persons. Instead: the person published the photo in a limited access - only for registered Meendo users; there is no evidence that it was commercial or for the purpose of enrichment; the content did not create real harm or danger - neither to children nor to the general public. In fact, the content was available only to those who: a) registered on this resource; b) visited the page of our ‘hero’.

In addition, it should be borne in mind that in this case we are not talking about a businessman from a porn studio. We are talking about a former soldier; a person who has acquired a disability as a result of the war; a person who is in a vulnerable state (divorced, unemployed). And what we see is that instead of supporting him, the state implements a repressive model through the court, which has nothing to do with a modern approach to human rights.

In European countries, certain acts related to pornography that really pose a danger to society, such as the involvement of children or animals, coercion, violence, etc. are mostly criminalised. 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, etc.).

In addition, many countries recognise that pornography and sexual services can have a positive impact on sexual health, mental health, relationships, body perception, self-esteem, sexual knowledge, and increase safe sexual behaviour. For some people, accessing erotic material, viewing pornography, and using pornography in the context of their relationships or for masturbation is undoubtedly beneficial.

That is why a number of countries have introduced sexual assistance services for people with disabilities and the elderly. And they are even paid for by the state.

Iryna Jakovets together with activists of CO “Legalife – Uktaine” on the All-Ukrainian Forum of sex workers, Kyiv, December 2023

In Ukraine, the current version 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 with private life, as well as the right to respect for human dignity, the right to an adequate standard of living and decent working conditions, the highest attainable standard of physical and mental health, and the right to protection from discrimination, as defined by a number of international documents, including the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the Universal Declaration of Human Rights.

That is why I support initiatives to decriminalise acts that are not harmful to society and are not associated with other negative manifestations.

“Legalife - Ukraine”: You have heard that searches and criminal prosecution of OnlyFans models continue in Ukraine. What is your attitude to this situation?

Iryna Yakovets: Yes, indeed, and now investigators of the National Police of Ukraine are conducting searches of Ukrainian OnlyFans models, information about whom was first received by the State Tax Service and then by the Bureau of Economic Security.

In my opinion, this is an absurd situation that should not be happening in a rule-of-law democratic state.

Thus, on the one hand, the state prohibits the distribution of pornographic content, and on the other hand, it demands and prosecutes tax evasion. In essence, it is a demand to pay taxes on income that has been generated by criminal means (since porn content is still banned in Ukraine).

The pressure on models comes from both sides: investigators from the National Police of Ukraine conduct searches of registered Ukrainian OnlyFans models, accusing them of distributing pornography.  In turn, the BES (Bureau of Economic Security) is looking for funds that are being ‘hidden’ from taxation. This is completely absurd.

The search warrants are based on fabricated investigation materials, which indicate unrealistic amounts of undeclared income, as well as an alleged connection with a previous case.

At the same time, there is no mention of taxes paid. The application of Article 209 of the Criminal Code of Ukraine (money laundering) is argued by the fact that the withdrawal of funds through the system provided by OnlyFans is money laundering.

“Legalife – Ukraine”: What do the laws tell us?

Iryna Yakovets; Article 209 of the Criminal Code of Ukraine provides for liability for ‘acquisition, possession, use, disposal of property in respect of which the actual circumstances indicate that it was obtained by criminal means’.

The Law of Ukraine ‘On Prevention and Counteraction to Legalisation (Laundering) of Proceeds of Crime, Financing of Terrorism and Financing of Proliferation of Weapons of Mass Destruction’ states that

Proceeds of crime are any assets obtained directly or indirectly as a result of a crime, including currency values, movable and immovable property, property and non-property rights, regardless of their value.

To qualify as a criminal offence under Article 209 of the Criminal Code of Ukraine, the property that is the object of the crime must be directly or indirectly, in whole or in part, obtained by criminal means.

The fact of obtaining property by criminal means is a crime that can only be established by a court by pronouncing a guilty verdict.

This primarily follows from Article 17 of the Criminal Procedure Code of Ukraine  “Presumption of innocence and ensuring proof of guilt”:

‘A person shall be presumed innocent of committing a criminal offence and shall not be subjected to criminal punishment until his or her guilt is proved in accordance with the procedure provided for by this Code and established by a court verdict of guilty that has entered into force.’

Then, for entering Article 209 of the Criminal Code of Ukraine into the Unified Register of Pre-Trial Investigations, notifying a person of suspicion, charging a person under Article 209 of the Criminal Code of Ukraine, and convicting a person under Article 209 of the Criminal Code of Ukraine, there are the following legal grounds:

1) the person is suspected of an offence of obtaining property by criminal means and an offence under Article 209 of the CCU (legalisation of such property). This should result in a simultaneous conviction for both offences;

2) the person must have been previously convicted of another crime, where the obtaining of property by criminal means was established.

Otherwise, there is no object of the crime under Article 209 of the Criminal Code of Ukraine.

The Law of Ukraine ‘On Ratification of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism’ No. 2698-VI of 17.11.2010, MONEYVAL recommendations and changes to the wording of part 1 of Art. 209 of the Criminal Code of Ukraine, where the words ‘property obtained as a result of a socially dangerous illegal act that preceded the legalisation (laundering) of proceeds’ were replaced by the words ‘property in respect of which the actual circumstances indicate that it was obtained by criminal means’, did not change the main point - in order to qualify a criminal act under Article 209 of the Criminal Code of Ukraine, the property that is the object of the crime must be directly or indirectly, in whole or in part, obtained by criminal means.

The fact of obtaining property by criminal means is a crime that can only be established by a court in a guilty verdict.

In turn, the object of the crime under Art. 212 of the CCU is the social relations that develop in the field of filling budgets and state trust funds through taxation, i.e. those social relations that arise between the state and taxpayers on the basis of tax rules governing the establishment, change and cancellation of contributions to budgets and state trust funds.

In other words, actions under Art. 212 of the CCU exclude obtaining property by criminal means, since the relations that arise between the state and taxpayers on the basis of tax regulations relate only to lawful (legal) activities and obtaining property by lawful (legal) means.

Paragraph 1.1 of the Tax Code of Ukraine (TCU) states: ‘The Tax Code of Ukraine regulates relations arising in the field of collection of taxes and duties, in particular, defines an exhaustive list of taxes and duties collected in Ukraine and the procedure for their administration, taxpayers and duties, their rights and obligations, competence of controlling authorities, powers and duties of their officials in the administration of taxes and duties, as well as liability for violation of tax legislation’.

Article 212 of the Criminal Code of Ukraine refers to the intent to evade taxes on property (income) obtained legally. The Tax and Customs Codes do not regulate or provide for the taxation of property obtained by criminal means. Such taxation is impossible at all!

In other words, if the pre-trial investigation body finds signs of a crime under Article 212 of the CCU in the actions of a person, it excludes the receipt of property by illegal means, and as a result, qualification under Article 209 of the Criminal Code of Ukraine.

But such inconsistencies between actions and their consequences are of little interest to our criminal justice authorities.

It seems that it is necessary to somehow decide what the state wants: either to collect the money as taxes from the models‘ income (and then it is necessary to simply remove the punishment for such actions), or to continue spending a lot of taxpayers’ money on the pursuit of, forgive the comparison, a hen that lays golden eggs. As one of the models told me: “On the one hand, we invite Ukrainian porn star Josephine Jackson to pose for a calendar, we are proud of models who donate like crazy for cars for the Armed Forces, and on the other hand, we are sending dogs of the system to those who have paid all taxes and registered as individual entrepreneurs?’

I believe that the first option would be the best for both the state and taxpayers. That is why I am in favour of decriminalising the actions of adults 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.

“Legalife – Ukraine”: Thank you very much for the conversation and your comments!

Interview by portal ‘Legalife-Ukraine’