Pornografia infantil virtual

: a legitimidade jurídico-penal da incriminação

Abstract

The purpose of this dissertation is to examine the incrimination of virtual child pornography and its legal and criminal legitimacy. We set out to assess whether these forms of child pornography are enshrined in the Portuguese legal system, specifically in Article 176(4) of the Penal Code, concluding that they both fall within the scope of the practice of the acts described in subparagraphs c) and d) of paragraph 1 of the aforementioned article, using pornographic material with a realistic representation of a minor. To this end, we analyzed the evolution of the recognition of the special legal status of minors and the protection of this age group against sexual violence, which includes child pornography, as well as the evolution of the incrimination of child pornography in the European Union and the Portuguese legal system. The crux of our analysis is whether the incrimination is in line with the current paradigm of the criminal law of the legal good. In these terms, we reject the idea that the protection of the sexual self-determination of any actual minor is at stake, admitting, however, that the partial modality also protects an eminently personal legal-penal good - the right to the free development of the minor's personality in the sexual sphere. Nonetheless, we believe that both modalities are concerned with the protection of a supra-individual criminal legal asset - the protection of children and young people. Drawing attention to the risks that current technological developments entail in the field of child pornography (paying particular attention to deepfake technology), as well as to the great economic benefits associated with this industry, we asserted that the conduct in question lacks criminal protection and cannot be classified as mere social order offenses, under penalty of failing to meet the requirements of general negative and positive prevention that are necessary in this case. With this dissertation, it is therefore possible to affirm the legal and criminal legitimacy of incriminating virtual child pornography, in both its forms.

Date of Award	13 May 2025
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Germano Marques da Silva (Supervisor)