Grooming

Grooming is punishable under Article 417/24 Criminal Code if the following conditions are met:

• The victim must be a minor (-18).
• The perpetrator makes an offer, by any means, to the victim to meet each other
• This proposal is followed by material acts that may lead to such a meeting
• The offender makes this proposal with the purpose of committing sexual crimes during this encounter

The above applies to offenses committed from June 1, 2022. For offenses committed before this date, the old Article 377quater Criminal Code applies (different conditions, lower penalty).

Discussion points Grooming

The age of the victim

It is not always clear when the defendant should reasonably know that the person is a minor.

If the perpetrator could not possibly have known that the victim is under 18, then there can be no grooming.

The perpetrator himself can be majority or minor. Grooming between minors is therefore also possible.

Proposal to meet

Grooming occurs only when the perpetrator proposes an encounter to the child.

A purely sexual conversation is therefore not sufficient, even if in the course of such a conversation the child is induced to perform sexual acts on himself, to look at sexually charged images of the perpetrator, or to make and/or deliver sexually charged images of himself to the perpetrator (such as webcam sex). There may possibly be sexual assault or rape in this case, or some form of public indecency, such as possession of child pornography, or even cyber solicitation, but in any case not grooming.

It must be a proposal to meet physically. A proposal to continue chatting at another time or to "meet" in a virtual space does not fall under grooming.

In what way should this proposal be made?

It does not matter if or which way the proposal to meet is made.

Typically, the minor will be approached online (via the Internet, chat, e-mail) but an offline approach is also possible.

Should the meeting actually take place?

It is not required that the contact actually lead to an encounter or physical contact between the offender and the child. Indeed, the law speaks of "acts that may lead to such an encounter" and not "acts that lead to such an encounter."

In this sense, then, it could be argued that it is also not required that any encounter involved a sexual act.

What are material actions that lead to such an encounter?

Merely asking or wishing to meet is not enough to be punishable. This request must be followed by some form of concretization or externalization. Vague intentions without concreteness do not suffice.

Such material acts are present when the perpetrator e.g. plans a route to the place of the meeting, buys a train ticket or a cinema ticket, plans leave on the date of the meeting, etc. These acts are certainly present if the perpetrator shows up at the place where the meeting was arranged.

What if the proposal to meet emanates from the minor?

Grooming occurs only when the proposal to meet emanates from the "perpetrator.

Even if the concretization of the proposal assumes the child, the other person could still be punishable if he/she could induce the child to perform acts that lead to an encounter. (e.g. convincing the child to meet at his home)

The intent of the perpetrator

A person is only punishable if he proposes an encounter to the child with the particular motive of committing a sexual crime (impairment of sexual integrity, voyeurism, non-consensual distribution of sexual content, rape, sexual exploitation of the minor for the purpose of prostitution or fornication, or an offense of public indecency).

This intent will have to be demonstrated from the content of the conversations.

If it does not appear that the perpetrator at such an encounter intended to commit the above crimes, then there is no grooming. Possibly, however, there could be cyberlocking.

What is the penalty for grooming?

Grooming is often prosecuted at the same time as other sexual offenses against minors, such as possession of images of sexual abuse of minors (child pornography) or committing fornication or prostitution with a minor. These crimes are considered serious offenses.

Grooming per se is punishable by imprisonment from 3 years to 5 years.

If the encounter actually takes place AND sexual offenses are committed against the minor, then this may result in additional punishment (e.g., for violation of sexual integrity).

Grooming may also be an aggravating circumstance in the criminalization of non-consensual sexual acts (art. 413/23 Criminal Code), albeit that that article does not refer to "a proposal to meet" but only to "approach," which should be understood to mean approaching and preparing a minor under 16 years of age in order to gain his trust in order to then proceed to commit the sexual crime.

Perpetrators may also be deprived of their electoral rights (art. 31, second paragraph of the Penal Code) and/or prohibited from exercising a profession that permits contact with minors (art. 417/59, §2, first and second paragraphs of the Penal Code). The court can also send the judgment to the offender's employer when the latter comes into contact with minors through the offender's profession (art. 417/62 Penal Code). Offenders may also be prohibited from living, residing or holding themselves in an area designated by the court (art. 417/58 Penal Code).

Those who commit online grooming abroad can also be prosecuted for this crime in Belgium, regardless of the nationality of the perpetrator or victim (art. 14/6, §1; 1° Preliminary Title of the Code of Criminal Procedure).

Grooming is never time-barred (Art. 21bis, 2° Prior Title Criminal Procedure Code).

When holders of trade secrets have knowledge of online grooming, they have an exception to the prohibition against disclosing the secrets entrusted to them.