children’s rights legislative reform

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC) - Childrens Rights Reform

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Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC)

Background on OPSC

The OPSC is the second optional protocol to the CRC that addresses and explicitly prohibits the sale of children, child prostitution and child pornography.

Adoption by the UN General Assembly: 2000; Entry into force: 2002.

Status of ratification OPSC.

The OPSC sets standards for the prohibition of ‘sale of children, child prostitution and child pornography’, including definitions of offences, jurisdictional rules, criminal liability, investigation of offences, measures for the protection of rights and interests of child victims, special rules for extradition, and international cooperation.

The OPSC and legislative reform

States Parties to the OPSC must implement these standards in their legislation.

States Parties should compare their legislation with the highest standard it has ratified, in line with article 41 CRC. If they have ratified both the CRC and the OPSC, States Parties should implement the specific standards set out in the OPSC, going beyond the general obligation to protect children from sale, trafficking (article 35), exploitation (article 36) and sexual abuse and exploitation (article 34) set out in the CRC (see also article 41 CRC).

The CRC Committee issued Guidelines regarding the implementation of the OPSC in 2019. In relation to the need for legislative reform, the CRC Committee (paras. 14-19):

  • Underscores that legislative measures implementing the OPSC should explicitly cover all acts mentioned in its article 3, including attempts to commit such acts;
  • States that legislative measures should include the liability of natural and legal persons (article 3), establish extraterritorial jurisdiction over all offences covered in the OPSC (article 4), and establish precise conditions and rules for extraditions (article 5) and for the seizure and confiscation of goods (article 7);
  • States that legislation should ensure access to redress and secure the availability of child- and gender-sensitive, confidential and safe counselling, reporting, and complaint mechanisms;
  • Urges States Parties to ensure that legislation does not criminalise children exploited in the acts that constitute offences under the OPSC;
  • Recommends States Parties take into account technological advancements when establishing their legal frameworks to ensure that they remain applicable in the future and avoid loopholes.

E.g.: The Republic Act 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) of 17 June 1992 in the Philippines, for example, complies with many of the requirements of the OPSC (UNICEF Innocenti 2009). The Act criminalises the “prostitution” of boys and girls below the age of 18, attempts to commit “child prostitution” and the use of children in pornographic performances. Child prostitution is broadly defined to include “lascivious conduct” as well as intercourse and providing sex under coercion or the influence of an adult, syndicate or group, even if payment or consideration is not involved. The law authorises immediate closure of establishments that promote or facilitate child prostitution, child pornography or trafficking of children.