Hamrun man cleared of defiling girl, 16, but guilty of sending explicit pictures

The court noted that while the images could be described as indecent, no images of the minor were present and cleared him of the charge of having produced indecent material of underage persons. The man was found guilty of causing a minor to participate in unlawful sexual activity

A court has conditionally discharged a 35 year old man from Hamrun, after finding him guilty of causing a minor to participate in “explicitly sexual behaviour,” by sending her a picture of his penis.

The same judgement cleared the man of corrupting a minor and producing pornography.

The 16-year old girl's father had gone to the police to report that he had found evidence on her computer which indicated that she had been chatting with unknown men on the internet and had received “indecent pictures of male genitalia.” He requested the police institute criminal proceedings against the man, whom he identified.

The accused was subsequently arrested. During his interrogation, the accused readily admitted that the pictures were his and that he had sent them to the girl. Officers heard how he had met her for the first time during carnival that year and had been chatting with her regularly for several months. The two had met on multiple occasions, he revealed, adding that the girl had claimed to be 18 years old.

During their investigation, the police found that the girl had been raped by another man just a few months before. Her rapist was later prosecuted for that sexual assault.

The court was told that the girl had spent time at Mount Carmel mental hospital, reiceiving treatment for drug addiction. There, she had opened up to a nurse, saying that she felt depressed because of the rape incident. She had said she was “very lonely” and “felt that her parents did not give her enough attention.”

In his judgement Magistrate Joe Mifsud, making reference to several landmark cases and eminent jurists, noted that the contact between the accused and the minor did not satisfy the requirements for the first charge; that of defilement of minors.

In keeping with his reputation for seeking legal inspiration from other jurisdictions, the magistrate referred to several UK cases and pointed out that the Maltese courts had consistently rested on the COPINE (Combating Paedophile Information Networks In Europe) classification for pornography. The COPINE scale spans from 1 (erotic poses with no sexual activity) to 10 (sadism or bestiality) and suggested that the nature of the indecent material and the extent of the offender's involvement with the material be taken into account in determining the seriousness of the individual offence.

The court noted that while the images could be described as indecent, no images of the minor were present and cleared him of the charge of having produced indecent material of minors.

The accused was, however, found guilty of causing a minor to participate in “explicitly sexual behaviour,” as the criminal code specifically dealt with exhibiting genitalia to minors via technological means.

In view of the nature of the charges, the accused's clean police conduct and the accused's state of mind at the time of the incident, the court felt that the punishment of a warning and a two-year conditional discharge would best fit the crime.

The names of the parties involved in the case are being withheld.

Lawyer Gianella Caruana Demarco was defence counsel to the accused.