For "18+" videos, punishment is akin to murder: when could pornography be decriminalized and who opposes it?

While discussions on the provisions of the draft law on the decriminalization of pornography are taking place behind the scenes of the Verkhovna Rada of Ukraine, courts are making decisions to hold Ukrainians accountable for creating or sharing adult content. This is happening both through thematic platforms and in private correspondence. Lawyers describe the punishment for photos and videos "with a twist" as absurd and harsh.

"Telegraph" listened to the opinions of legal community representatives and inquired about the fate of bill No. 12191 from its author.

A fine or even a suspended sentence for two videos on social media

Once again, the need to amend legislation to change the approach to punishing adult content creators on the OnlyFans platform has been raised. Since autumn, they have been receiving "happy letters" from the tax authorities, and subsequently, detectives from the BEF have been visiting them with searches, while models feared that, in addition to financial claims, the state might begin pursuing them under Article 301 of the Criminal Code of Ukraine. This article, as is well known, provides for liability for the distribution of works, images, or objects of a pornographic nature, as well as their production, storage, transportation, or other movement for the same purpose or their sale or distribution. Meanwhile, people's deputies, particularly Daniil Getmantsev, insisted that they would push for a prompt review of the decriminalization of this article in the Verkhovna Rada.

By the end of 2024, it became known that the Draft Law on Amendments to the Criminal Code of Ukraine regarding the improvement of certain provisions on criminal offenses against public order and morality (registration No. 12191) was approved by the Committee on Law Enforcement Affairs. Consequently, the document is expected to be presented for consideration by deputies in the session hall, but against this, in the early days of 2025, the leader of the "Batkivshchyna" faction, Yulia Tymoshenko, spoke out from the parliamentary podium. "What are you doing?! Yes, we removed this law [from consideration] at the Conciliation Council. But I ask you — stop! At least during Christmas, do not present such laws. Start living and working for Ukraine and for the people, not lobbying for all sorts of nonsense..." – this is how the MP emotionally expressed her opposition to her colleagues' proposals.

Lawyer Lesya Mikhalenko, who brought attention to the situation with the searches of OnlyFans models, called this statement manipulative. In her view, the reason for the delay in the process may lie in the system's unwillingness to lose income and opportunities to have good statistics on the resolution of "terrible" crimes.

- Tymoshenko substituted concepts in her speech, speaking about "legalization," while in reality, it is about "decriminalization," — emphasized the lawyer. – After all, the authors of the mentioned bill propose to exclude liability from the article when it comes to what consenting adults in a relationship do together or exchange intimate photos/videos. Or, if adult women, again by their own choice, show off their bodies on specialized platforms. It should be emphasized that the responsibility for the distribution of pornography to minors is planned to be strengthened, as well as to introduce criminal penalties for coercing children into creating pornography. Moreover, Article 152, which provides for liability for rape, remains unchanged in the Criminal Code.

The lawyer also noted that there is a certain "fee" that law enforcement allegedly imposes on OnlyFans models — it is $500-1000 per month, while the "service" for not opening a criminal case under Article 301 of the Criminal Code of Ukraine for those caught with spicy photos or videos amounts to $20,000.

- Even a superficial analysis of court decisions under Article 301 of the Criminal Code of Ukraine shows that often defendants reach agreements with the investigation, admit their guilt, and receive a three-year suspended sentence, – says Lesya Mikhalenko. – In the Register of Court Decisions for December, I found at least six such decisions. At the same time, the same punishment was given by the court for a murder committed through negligence to a resident of the Odessa region who inserted a thermos and a glass bottle into the vagina and anus of his acquaintance, leading to her death. Is it possible to compare the consequences of actions when, in one case, a person is no longer alive, while in others — consenting adults shared naked body photos or intimate videos, from which no one was harmed, except perhaps public morality?! And that's still a question. There are also cases in judicial practice where it is not about platforms or websites, but simply about private correspondence. For example, I can refer to last year's verdict of the Novosanzharsky District Court of the Poltava region. In the document, it is stated that a local resident filmed two videos (a judicial art expert classified them as pornographic content – Ed.) and sent them to a stranger. In this case, the punishment was a fine of 34,000 hryvnias, yet it still involves criminal liability with all its consequences.

The interlocutor notes that the delay in passing bill No. 12191 leaves room for abuse by law enforcement, particularly regarding "18+" models. Given that they are ready to pay taxes to the budget and only want to rid themselves of pressure from regulatory authorities.

Police against the bill and moral values

This week, the media began to circulate the position of the head of the National Police, Ivan Vygovsky, regarding the decriminalization of pornography. In an interview with "Ukrainian News", he emphasized that his agency, as well as other law enforcement agencies, opposes this initiative. "This bill requires refinement and directly contradicts some laws. Last year, we registered nearly 2,000 criminal offenses under Article 301-1 (Child pornography), and this legalization will make all of this accessible to minors. Right now, there is a war, and the Russians are destabilizing the situation with various cyberattacks and hybrid attacks, so this could become an additional avenue for them to exploit. This will also negatively affect moral values, particularly for children. We have traditions of intimate communication between people, and therefore, in my opinion, such legalization will have negative results," – noted Ivan Vygovsky.

At the same time, in a comment to "Telegraph," people's deputy Yaroslav Zheleznyak, who is the initiator of legislative changes, emphasized that the responsibility for involving children in the creation of pornographic content and its distribution among minors is precisely what is proposed to be strengthened.

- We have a very simple concept, — emphasized Yaroslav Ivanovich. – There are actions that are considered socially dangerous and are punished very strictly under the law. But when adult women show themselves naked to adult men or vice versa, it is not something that should be subject to criminal punishment. However, when it comes to pornography involving children and its distribution among minors, pornography without consent, or extreme pornography — all of this should incur liability. We are simply clarifying this list and what the punishment should be.

According to the people's deputy, although the bill has been prepared for over a year, there are certain legal remarks from the "executive branch," so the final version of the document may be adjusted. But this may be discussed when the draft law is adopted in the first reading.

- With bill No. 12191, we have passed the relevant committee and it is now awaiting consideration in parliament, – emphasized Yaroslav Ivanovich. – But there are two points. First, I have heard that there are questions about the document from the president, who wants to understand what it is about. I consider this normal, and I hope that the president or his advisors will find time to look into it. Especially since this bill was prepared together with colleagues — people's deputies from his political force.

And the second point — these are questions from some people's deputies. But this is not about them opposing our proposal; among our open opponents, we only have Yulia Tymoshenko's faction. But even then, it seems to me that her representatives simply do not fully understand the concepts, or perhaps a bit of political context has an influence. Our colleagues need more time to decide on their voting, and they currently have it. As you can see, the agenda has not been very effective this week, and we are not rushing to gather the necessary votes. Our parliament operates in a rather chaotic mode, so I cannot unfortunately expect our bill to be considered here and now. Even with priority laws, it doesn't work that way, but I hope we will get to the issue of decriminalizing pornography in February.

It should be noted that in the conclusion of the main expert management of the Verkhovna Rada of Ukraine on bill No. 12191, it is stated: "the cancellation of criminal liability for actions related to the creation and distribution of 'adult' pornography on the territory of Ukraine will require the legislator to establish new rules necessary to minimize risks associated with the production and circulation of 'permitted' pornography in Ukraine, as well as to ensure the