Punishment for intimate photos and videos: will MPs decriminalise porn in Ukraine?

Already a year ago, a petition on the decriminalization of porn in Ukraine had collected the required 25,000 votes. Supporters of this idea advocated the right to decide for themselves what content to consume and how to express their sexuality. They believe that this will create a market for adult content, which is good for the economy. On the other hand, law enforcement agencies will not be able to parasitize in this area. Currently, the parliament of Ukraine has taken up the decriminalization of porn. Read more in the article by hromadske.

Adult content service OnlyFans paid almost $1 million in taxes to the Ukrainian budget for the first half of 2023. And these are only taxes from OnlyFans users, the work of "creators" in Ukraine is not taxed. Moreover, Ukrainians may face criminal liability for working on such a platform.

For example, last year in June, a girl from Kryvyi Rih (Кривий Ріг), who published her intimate photos and videos on OnlyFans, received a two-year suspended sentence, and she was also ordered to pay more than 12 thousand hryvnias for conducting examinations of her content.

A month before, a similar verdict was handed down in Poltava. The girl was selling her content on Telegram. She was sentenced to a one-year suspended sentence with the requirement to return more than 12 thousand hryvnias to the state to cover the costs of an expert who analyzed her photos and videos.

Another case happened in Chernihiv: in September 2022, a mother with a minor child was given a one-year suspended sentence. This woman did shared her photos and videos on the popular adult site PornHub.

In this decision, as in many others under Article 301 of the Criminal Code of Ukraine, the judge refers to the International Convention for the Prevention of Circulation and Trade in Pornographic Publications, which was concluded in Geneva in 1923. Noting that such actions encroach on "basic principles of social morality", contradict "traditions" and harm "moral education of people".

"Since then the EU countries either withdrew from this Convention or simply ignore it. Porn has been decriminalized in most EU countries. The convention is used by our courts to prove that a person is guilty, that he violates important norms of law. My opinion: it is inappropriate from the point of view of public morality to open thousands of criminal cases during the war against one’s own citizens for nude photos or videos that were distributed for free or paid. From the point of view of public morality, the cost of taxes, police and court time is more dangerous," - believes the expert of the analytical center BRDO Ihor Samohodskyi (Ігор Самоходський).

Besides, as Samochodsky notes, the USSR was a participant in this convention, but Ukraine was not. Therefore, he considers the Ukrainian courts’ reference to its norms to be erroneous. And decriminalization of porn is called decommunization.

"TerOnlyfans" («Теронліфанс») is in the risk zone

Anastasiya Kuchmenko (Анастасія Кучменко), the executive director and member of the volunteer movement "TerOnlyfans", shares the same opinion.

[TerOnlyfans (Теронліфанс) - nudsy for donations in favor of Ukraine. "TerOnlyfans" is a play on the words "territorial defense" and "OnlyFans"]

Together with like-minded people, she collects money for the Armed Forces of Ukraine - she offers her intimate photos for donations.

"For me, the refusal to decriminalize porn will be seen as supporting Soviet narratives about ’morality and ethics,’" says Anastasia.

The girl worries that a case may be opened against her or any of the members of the movement, although their activities do not pose a threat to society, but are aimed at winning the war against Russia. Currently, "TerOnlyfans" has already collected almost 31.5 million hryvnias for charity and support of the Armed Forces.

"We decided to help the army in this way because we saw that it works. And it’s not just about nudsy specifically, but about personal gratitude to each donor. It’s just that in our case, it’s "nudsy".  And as a person with an artistic education, I am convinced that there is nothing more beautiful than human body. And you doesn’t need to be ashamed of this," says Anastasia.

The girl recalls the beginning of a full-scale war, when her friend, with whom they started the movement, was looking for a car for a boy from Kharkiv. Despite a large audience on Twitter (now X), reposts and comments did not yield results. But the car was quickly found when this girl promised to send nudes in exchange for help. This became the impetus for the creation of "TerOnlyfans".

"If one photo of a breast helped to find a car for evacuation in a few minutes, when hundreds of reposts failed, then I’m afraid to imagine how much the decriminalization of such activity could benefit the assembly," adds Anastasia.

"TerOnlyfans" positions its content as erotic, not pornographic. However, there is a risk of persecution for them as well, notes the expert of the BRDO analytical center Ihor Samokhodskyi:

"What they are spreading is not porn, but in theory they can fall at risk of criminal prosecution at any moment. The creative boundary between porn and erotica is deeply subjective and depends on the participants involved in the process. Because of the way our law enforcement and judicial system works, there are risks for them. I think it’s wrong."

Prison terms for intimate photos sent to a partner?

According to the Prosecutor General’s Office of Ukraine, in January-July 2023, 699 cases were opened under 301 article of the Criminal Code. This is just the tip of the iceberg. Instead, law enforcement officers often blackmail and extort bribes, says Natalia Isaieva (Наталія Ісаєва), head of “Legalife-Ukraine”, a charity that protects the rights of sex workers. The organisation’s hotline offers psychological and legal assistance for sex workers in trouble.

"People who contact us are afraid to talk about it openly. Society does not treat such topics very kindly. And the police use this to ask for money. Sometimes they are even threaten to plant drugs," says Isaieva.

Today, there are almost 5 million internally displaced Ukrainians in Ukraine. Many of them have lost their jobs, so they are trying to find alternative ways to make money, including selling intimate content.

CO “Legalife-Ukraine” is also approached by people for whom sharing intimate content is neither volunteering nor a means of earning money. All of them are also potential violators. This applies to any Ukrainian couple sharing erotic photos, and in times of war, it also applies to soldiers at the front who have not seen their partners for months.

"I want to diversify our communication somehow, although in my case it was my girlfriend who initiated it. It’s quite surprising that there is a penalty for private communication," says military officer Andriy.

The policewoman shouted: "If you are wearing stockings, you are all prostitutes!"

In 2018, Olena Solovyova (Олена Соловйова) opened the only role-playing love hotel in Ukraine, Cherry Twins. The woman runs her business openly and transparently. Such hotels are very popular in Asian countries, and there are also some of them in Europe.

"There are no prostitutes or sex services there. These are rooms decorated like an erotic fantasy. 70% of my guests are married couples who have been together for 3-4 years and just want to bring passion back into their relationship."

However, law enforcement officers thought, that everything was not so clear. In January this year, during a monthly theme party, people in balaclavas broke into the hotel.

"It was about 25 gunmen - a raiding party. They crushed everything that came under their hands and feet, that is, even doors, that could be opened with a handle, they knocked out specially. They broke everything they saw. They smashed laptops and cut out cameras," says Olena Solovyova.

The business woman says she was injured: they pushed her behind the bar, where she cut her arm with a glass. And then they refused to call an ambulance until she lost consciousness.

"They put the guests face down on the floor and pulled the slides of the machine guns above them. We were forbidden to go to the toilet, not given water, it was some kind of violence. I don’t know what it was for. A woman, who was a senior detective, was running around the hotel and shouting: "If you are wearing stockings, you are all prostitutes". All this mockery lasted until 5am."

The interrogations and investigation have been going on for over six months. (They are trying to charge Solovyova with Article 302 - "Creation or maintenance of places of prostitution, as well as procuring for prostitution". Instead, she wonders: "Is my hotel the only one place where people have sex?"

Article 302 appeared in Ukraine because of an erroneous translation of the foreign Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, explains Ihor Samokhodskyi. The word "brothel" was translated as "place of prostitution", and this gave law enforcement officers ample opportunities.

"We have translated brothel as "a place of debauchery"/"place of prostitution", which is a really wrong translation of the Convention. And now law enforcement officers interpret a brothel as a place where someone had sex."

Yaroslav Zheleznyak, a member of the Voice faction, has taken up the cause of decriminalising porn in Ukraine. The prepared draft law eliminates criminal liability under Articles 301 and 302. At the same time, responsibility will remain for:

• non-consensual porn (revenge porn, deep fake);
• extreme porn (rape, zoo-, necrophilia);
• porn with children and distribution of porn among children.

Zheleznyak is confident that MPs will support his initiative. (He foresees that representatives of law enforcement agencies will oppose it.

"This is a "fodder base" for them. That’s why I think they will, to put it mildly, try to resist," Zhelezniak says.

Text by Yevhen Shulhat (Євгеній Шульгат)

Source: hromadske.ua