Amendments to the Criminal Code: Even messages from the inbox lead to prison

Anyone who sexually harasses another person will be punished with imprisonment for up to two years, and prosecution is undertaken by private lawsuit. Anyone who misuses someone else's video with sexual content and makes it available to a third person will be sentenced to up to three years in prison, and up to 10 years if the victim is a child.

This is written in the Draft Law on Amendments to the Criminal Code of Montenegro.

The draft law introduces new criminal offenses - sexual harassment and abuse of someone else's recording, photograph, portrait, audio recording or file with sexually explicit content.

According to the document that "Vijesti" had access to, the mildest sanction for sexual harassment, which can include messages of sexually explicit content in messages on social networks, is a prison sentence of up to six months. The threatened punishment for sexual harassment of persons particularly vulnerable due to age, illness, disability, addiction, pregnancy, severe physical or mental disability is up to two years in prison. The same sanction applies to those who sexually harass subordinates in the workplace.

"Sexual harassment, in the sense of this article, is any form of unwanted verbal, non-verbal or physical behavior of a sexual nature, which is intended to injure the dignity of a person or group of persons, i.e. which achieves such an effect, especially when such behavior causes fear or creates hostility , humiliating, intimidating, degrading or offensive environment", is defined by the Draft Law.

Associate in teaching at the Faculty of Law and member of the Working Group for International Cooperation of the Regional Center for Combating Cybercrime Andreja Mihailović he says for "Vijesti" that it is about "key changes".

"The new amendments to the Criminal Code represent a significant reform step because they seek to include all forms of pornography without consent that were difficult to imagine before, which are spreading spontaneously in a volume that is difficult to both identify and adequately sanction," said Mihailović.

Alarm mass Telegram group

Mihailović says that, although the 2017 amendments brought Montenegrin substantive criminal legislation largely in line with European Union standards, the initiative to amend the Criminal Code of Montenegro stemmed from a set of factors: harmonization with the conventions of the Council of Europe and the United Nations, legal the standards of the European Court for human rights, terminological harmonization and elimination of the collision of certain provisions and the newly emerging needs of the social environment.

"The key changes relate to the introduction of two criminal offenses in response to the disturbing escalation of cases of sexual harassment and abuse of private photos and videos with sexually explicit content, which today are predominantly distributed through social networks and closed groups on mobile applications," says Mihailović.

He reminds that the seriousness and extent of this phenomenon is best illustrated by the data from 2021, when three groups were exposed on the Telegram group social network, in which more than tens of thousands of individuals from the Western Balkans region exchanged explicit videos and photos of women and girls without their consent.

”Of which the largest EX YU Balkan Room included over 36.000, and the second largest around 25.000 active members. The content of the groups alarmed the public, given that they operated both as intermediary channels for prostitution and as platforms for the distribution of images and videos obtained by extortion or abuse of the trust of partners with whom they were in emotional relationships, of course without their knowledge. The fact that cases of child pornography were also found among the aforementioned groups is particularly disturbing," warns Mihailović and emphasizes that "the mass of the group encouraged the perpetrators to such an extent that one of them ended up with a video of the rape of a girl."

"...Which did not meet with harsh condemnation from its members, since individuals who dared to forward contents outside the group were exposed to threats. Only when the groups were fully exposed and exposed to the condemnation of the general public, there followed a flood of testimonies from girls and women about the myriad consequences, predominantly of a psychological nature, which they silently faced due to the shame, stigmatization and fear of judgment from the environment. I dare to point out that it is illusory to hope that the elimination of the three mentioned groups stood in the way of this social anomaly, but that the majority of members continued to operate according to the same matrices on other platforms. I point this out based on the practice of former users of EncroChat, who after its decoding reoriented themselves to Sky ECC, which became the new 'asylum' of secret communication of the criminal milieu", explained Mihailović.

Protective mechanisms powerless to respond to the dictates of technology.

Protective mechanisms, Mihailović emphasizes, both regulatory and operational, are powerless to respond to the dictates of technologies and their explosive development.

"Given that many traditional crimes of organized crime have also migrated to the cyberspace, it is evident that this is a new focal point of criminal activities... For this reason, the new amendments to the Criminal Code represent a significant reform step, as they seek to include all previously hard-to-imagine forms of pornography without consent, which spread spontaneously on a scale that is difficult to both identify and adequately sanction," she explained.

He also points out that, although the term "revenge pornography" is dominantly related to the relationship between former partners, it should be interpreted in a wider context, since explicit recordings and photographs can be created without the knowledge of the victim, by recording in intimate situations, during sexual abuse of the victim, by hacking device of the victim, etc.

"In addition, the disputed content can be partially or completely manipulated with Photoshop, with the same weight of consequences as when it comes to the publication of real recordings", Mihailović pointed out.

He also explains that the existing legal mechanisms did not recognize these criminal acts in a separate form, and so far they have been legally treated by articles related to the unauthorized publication and display of other people's documents, portraits and recordings and blackmail.

"For this reason, the new draft of the Criminal Code brings modern instruments with an advanced approach in defining the penalty ranges, unlike the previous lenient penal policy, which extremely favored the perpetrators of these crimes. The prescribed maximum penalties for this form of crime range from a prison sentence of two years for the basic form, over eight years if the offense was committed against a child, up to ten years if the offense was committed by an official in the performance of his duties," said Mihailović.

Criminal responsibility for any unwanted behavior

She assesses that an additional advantage of such regulation is the realization of comprehensive criminal protection, because now there is a legal possibility for a merger with criminal acts of extortion, since people in possession of sexually explicit photos and videos are often extorted money in exchange for not publishing them.

"Given that, depending on the amount of property-legal benefits obtained in the criminal offense of extortion, the prescribed prison sentences go up to 15 years, I believe that this will represent another significant deterrent factor for the perpetrators of these crimes," emphasized Mihailović.

He also reminds that "in Montenegro, for an unjustified long time, there was no opportunity to expose the perpetrators of the criminal offense of sexual harassment to criminal responsibility, while, for example, in Serbia it was introduced in 2017, along with the criminal offense of stalking".

"The wording of the new provision represents an encouraging refreshment, since it entails criminal responsibility for any form of unwanted verbal, non-verbal or physical behavior of a sexual nature, which aims to injure the dignity of a person or group of persons, i.e. which achieves such an effect, especially when such behavior causes fear or creates a hostile, humiliating, intimidating, degrading or offensive environment...", concluded Mihailović.