Article 189 Spanish Criminal Code: Child pornography and exhibitionist shows involving minors

1. The following shall be punished with imprisonment of one to five years:

a) Whoever recruits or uses minors or persons with a disability in need of special protection for exhibitionist or pornographic purposes or shows, whether public or private, or for the production of any kind of pornographic material, whatever its medium, or finances any of those activities or profits from them.

b) Whoever produces, sells, distributes, exhibits, offers or facilitates the production, sale, dissemination or exhibition by any means of child pornography or of pornography in the production of which persons with a disability in need of special protection have been used, or possesses it for those purposes, even where the material originated abroad or its origin is unknown.

For the purposes of this Title, child pornography, or pornography in the production of which persons with a disability in need of special protection have been used, means:

a) Any material which visually depicts a minor or a person with a disability in need of special protection engaged in sexually explicit conduct, whether real or simulated.

b) Any depiction of the sexual organs of a minor or of a person with a disability in need of special protection for principally sexual purposes.

c) Any material which visually depicts a person who appears to be a minor engaged in sexually explicit conduct, whether real or simulated, or any depiction of the sexual organs of a person who appears to be a minor, for principally sexual purposes, unless the person who appears to be a minor in fact turns out to have been eighteen years of age or older at the time the images were obtained.

d) Realistic images of a minor engaged in sexually explicit conduct, or realistic images of the sexual organs of a minor, for principally sexual purposes.

2. Those who carry out the acts provided for in paragraph 1 of this article shall be punished with imprisonment of five to nine years where any of the following circumstances is present:

a) Where minors under sixteen years of age are used.

b) Where the acts are of a particularly degrading or humiliating character, physical or sexual violence is employed in order to obtain the pornographic material, or scenes of physical or sexual violence are depicted.

c) Where minors are used who are in a situation of special vulnerability by reason of illness, disability or any other circumstance.

d) Where the offender endangered, intentionally or by gross negligence, the life or the health of the victim.

e) Where the pornographic material is of notorious importance.

f) Where the offender belonged to an organisation or association, even of a transitory nature, devoted to carrying out such activities.

g) Where the person responsible is an ascendant, guardian, curator, custodian, teacher or any other person in charge, whether in fact, even provisionally, or in law, of the minor or of the person with a disability in need of special protection, or is any person cohabiting with that person, or another person who has acted abusing a recognised position of trust or authority.

h) Where the aggravating circumstance of recidivism is present.

3. Where the acts referred to in subparagraph (a) of the first subparagraph of paragraph 1 have been committed with violence or intimidation, the penalty of the next higher degree to those laid down in the preceding paragraphs shall be imposed.

4. Whoever knowingly attends exhibitionist or pornographic shows in which minors or persons with a disability in need of special protection take part shall be punished with imprisonment of six months to two years.

5. Whoever, for own use, acquires or possesses child pornography, or pornography in the production of which persons with a disability in need of special protection have been used, shall be punished with imprisonment of three months to one year or with a fine of six months to two years.

The same penalty shall be imposed on whoever knowingly accesses child pornography, or pornography in the production of which persons with a disability in need of special protection have been used, by means of information and communication technologies.

6. Whoever has under parental authority, guardianship, custody or fostering a minor or a person with a disability in need of special protection and who, being aware of the state of prostitution or corruption of that person, does not do everything possible to prevent its continuation, or does not apply to the competent authority for that purpose where lacking the means for the custody of the minor or of the person with a disability in need of special protection, shall be punished with imprisonment of three to six months or a fine of six to twelve months.

7. The public prosecutor shall bring the appropriate proceedings with a view to depriving of parental authority, guardianship, custody or family fostering, as the case may be, the person who engages in any of the forms of conduct described in the preceding paragraph.

8. The judges and courts shall order the adoption of the measures necessary for the withdrawal of the web pages or internet applications which contain or disseminate child pornography, or pornography in the production of which persons with a disability in need of special protection have been used, or, as the case may be, for blocking access to them by internet users located within Spanish territory.

These measures may be ordered as a precautionary measure at the request of the public prosecutor.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.