{"id":103334,"date":"2026-08-24T15:45:35","date_gmt":"2026-08-24T14:45:35","guid":{"rendered":"https:\/\/www.ictrechtswijzer.be\/?p=103334"},"modified":"2026-08-24T15:49:48","modified_gmt":"2026-08-24T14:49:48","slug":"ai-generated-images-of-child-abuse-are-a-criminal-offense","status":"publish","type":"post","link":"https:\/\/www.ictrechtswijzer.be\/en\/ai-beelden-kindermisbruik-strafbaar\/","title":{"rendered":"Are AI-generated images of child abuse a criminal offense?"},"content":{"rendered":"

Yes, when the images are realistic. On July 31, 2026, the Court of First Instance of West Flanders, Kortrijk Division, convicted a man who used artificial intelligence to generate and possess lifelike images of naked minors, even though no real child was involved (Corr. West Flanders (Kortrijk Division) July 31, 2026, No. 26K000220, unpublished). According to the court, clearly non-realistic images, such as anime or manga drawings, do not fall within the scope of the criminal offense. The ruling is one of the first Belgian decisions to address the Criminal Law Regarding Online Sexual Offenses<\/a> applies to images created entirely by AI.<\/p>\n\n\n\n

The facts<\/h3>\n\n\n\n

The case did not begin with the images themselves, but with the money. In July 2024, the Financial Information Processing Unit reported to the public prosecutor\u2019s office that, between April 2023 and May 2024, the man had transferred a total of $140 to a PayPalaccount that was presumably used for the sale of AI-generated images of child abuse.<\/p>\n\n\n\n

During a search in January 2025, the police seized his cell phone, two laptops, a desktop computer, hard drives, USB drives, and SD cards. The cell phone contained images and videos of young girls in a sexual context that had been downloaded via Telegram. On a hard drive from the desktop computer, the police found folders containing visual material, including a folder with 105 images that the man had generated himself using AI. Most of the file names contained the term \u201cnude preteen.\u201d.<\/p>\n\n\n\n

During his interrogation, the man admitted that he generated the images using prompts. According to him, it was purely a fantasy and an experiment; the term \u201cnude preteen\u201d was used solely to make the images appear \u201cyounger and more innocent.\u201d The public prosecutor\u2019s office charged him with producing, possessing, and acquiring images of child sexual abuse, as well as with producing content of an extremely pornographic or violent nature involving a minor.<\/p>\n\n\n\n

The ruling<\/h3>\n\n\n\n

When an image of a nonexistent child is \u201crealistic\u201d<\/h4>\n\n\n\n

Article 417\/43 of the Criminal Code<\/a> (Sw.), introduced by the Act of March 21, 2022<\/a> Under the law on sexual offenses, \u201crealistic depictions\u201d of a fictional minor engaging in explicit sexual conduct are also considered images of child sexual abuse. However, the law does not define what \u201crealistic\u201d means. The defense seized on this gap: in its view, the images found were clearly unrealistic and therefore fell outside the definition.<\/p>\n\n\n\n

The court filled in the gap itself, based on the ordinary meaning of the word. A realistic image is any image that accurately replicates reality, whether it is a photograph, an image generated wholly or partly by artificial intelligence, or a drawing or painting. At first glance, the depicted minor must appear to be a lifelike minor. If it is immediately clear that no lifelike child is depicted, then the image is not realistic, \u201cno matter how morally reprehensible the image may be.\u201d.<\/p>\n\n\n\n

Ownership and Creation of AI Images<\/h4>\n\n\n\n

That assessment yielded mixed results. According to the court, the anime images on the cell phone did not fall under the definition. However, the cell phone and desktop also contained lifelike drawings and AI-generated images of nonexistent minors that did look lifelike. For those images, the court found possession to have been proven (Art. 417\/46 of the Penal Code).<\/p>\n\n\n\n

The court also found that the creation of the images (Art. 417\/44 of the Dutch Criminal Code) had been proven. The man had generated the 105 images in the \u201coutputs\u201d folder himself using prompts. The fact that he never distributed them was irrelevant to the finding of guilt: the act of production itself is a criminal offense. Because the court ruled that the man did in fact possess and produce realistic images, it did not need to address his request to refer two preliminary questions regarding the criminalization of non-realistic images to the Constitutional Court.<\/p>\n\n\n\n

The acquittal regarding extremely pornographic content and the sentence<\/h4>\n\n\n\n

Regarding the third charge\u2014the production of extremely pornographic or violent content involving a minor (Art. 417\/51 and 417\/52 of the Penal Code)\u2014the court acquitted the man. The criminal case file did not show that the folder he had created contained images that met that definition.<\/p>\n\n\n\n

The court did not impose an effective sentence but ordered a four-year suspended sentence, subject to probation conditions, including specialized counseling. The public prosecutor\u2019s office had recommended against the suspension, but the court took into account that the man had no prior criminal record, had credibly acknowledged the wrongfulness of his actions, and was already facing professional consequences: his college had suspended him from teaching as a precautionary measure. The desktop computer, cell phone, and video footage were forfeited.<\/p>\n\n\n\n

Legal analysis and interpretation<\/h3>\n\n\n\n

The technique doesn't matter; what matters is the realism<\/h4>\n\n\n\n

The man defended himself by arguing that his images came from a computer and therefore did not depict a real child. According to the court, that argument misses the point of the law. As early as 2016, when tightening the definition in what was then Article 383bis of the Penal Code, the legislature intended to to combat child pornography \u201cin all its forms,\u201d including the fictional variant in which a nonexistent child is depicted and the technical variant that is created entirely by computer (Explanatory Memorandum, Parliamentary Bulletin, Chamber 2015-16, No. 54-1701\/001<\/a>, 12\u201314). That definition implemented the European obligations under the directive 2011\/93\/EU<\/a> and was transferred in 2022, without any changes, to Article 417\/43 of the Penal Code.<\/p>\n\n\n\n

The ruling consistently extends this line of reasoning to generative AI. It is not the production process that matters, but the result: if the depicted minor appears lifelike at first glance, the image falls under criminal law. A photograph, an AI-generated image, and a hyperrealistic drawing are all treated the same. This is a workable standard, but it does shift the debate to the trial court. Where the line is drawn for semi-realistic styles\u2014somewhere between manga and photorealism\u2014will have to be assessed on a case-by-case basis. In this case, the court referred to the criminal case file by image number, and that approach immediately demonstrates just how fact-based the exercise is.<\/p>\n\n\n\n

Whoever acts promptly, creates<\/h4>\n\n\n\n

The second key point of this ruling lies in the verb. The man had not downloaded the images from a third party, but had generated them himself using prompts in a local AI model. The court unambiguously classified that generation as \u201cproduction\u201d within the meaning of Article 417\/44 of the Dutch Penal Code. Distribution is not required for this offense; the crime was completed at the moment the images were generated. The prompts and file names played a dual role in this regard: they proved that the man had created the output himself, and they undermined his defense that he was not concerned with the minors\u2019 age.<\/p>\n\n\n\n

That classification is no mere detail when it comes to sentencing. Manufacturing carries a prison sentence of five to ten years, a criminal penalty that could only be commuted to a non-custodial sentence by accepting mitigating circumstances. The Belgian judge did not need a new law to reach that outcome. Meanwhile, the European legislature is codifying the same principle into binding law: based on the Proposed Recast of February 6, 2024<\/a> was adopted by the European Parliament June 17, 2025<\/a> his position, and on June 22, 2026<\/a> The Parliament and the Council reached a provisional agreement on the recast directive. Among other things, it makes the design, modification, or distribution of AI systems intended to generate child abuse material a criminal offense throughout the Union. The agreement has yet to be formally adopted; after that, member states will have three years to amend their criminal laws.<\/p>\n\n\n\n

The Preliminary Rulings That Never Came<\/h4>\n\n\n\n

The defense had prepared two questions for the Constitutional Court: Does Article 417\/43 of the Penal Code violate the principle of legality and the freedom of thought and expression if it were to criminalize even unrealistic depictions of nonexistent minors? Those questions were not raised, and the reason is instructive. By excluding the anime images themselves from the definition, the court rendered the questions irrelevant: the facts found to be proven pertained solely to realistic images.<\/p>\n\n\n\n

The Court of Cassation had previously held, in a case concerning the former Article 383bis of the Penal Code, that the principle of legality does not preclude criminal law from granting the judge discretion, given the general nature of the law and the evolution of the conduct it penalizes (Supreme Court, February 28, 2018<\/a>, P.17.1216.F). The open-ended concept of \u201crealistic\u201d is consistent with that case law. The fundamental question of whether the legislature should also be permitted to criminalize clearly fictional images remains unanswered following this ruling. This court, however, opted for a restrictive interpretation: anything immediately recognizable as unrealistic falls outside the scope of criminal law, no matter how reprehensible it may be.<\/p>\n\n\n\n

Specifically, what does this mean?<\/h3>\n\n\n\n

For those who create images using generative AI.<\/strong> The argument that \u201cno real child is involved\u201d offers no protection once the output appears lifelike. The act of generating the images is itself a crime; distribution or commercial intent is not required. Even the mere possession of such images\u2014for example, after downloading them from a Telegram group\u2014is a criminal offense. Prompts, file names, and folder structures are used as evidence against the user, and all hardware containing the files may be confiscated\u2014in this case, the desktop computer and the cell phone.<\/p>\n\n\n\n

For criminal law practice.<\/strong> The ruling provides a useful test for the Legal Assessment of AI Output<\/a>: the \"at-a-glance\" test of realism, applied to each image. Attorneys would be well advised to have the visual material in the criminal case file classified category by category, because in this case, the distinction between anime and photorealism determined the difference between acquittal and a finding of guilt for each group of images. Furthermore, anyone wishing to engage in a principled debate about non-realistic images must take into account that a preliminary ruling will only be sought if the answer is relevant to the facts found to be proven.<\/p>\n\n\n\n

Frequently asked questions (FAQ)<\/h3>\n\n\n\n

Is creating child pornography using AI a criminal offense if no real child is involved?<\/strong>
Yes. Article 417\/43 of the Penal Code also covers realistic depictions of nonexistent minors. Anyone who generates such images using AI is producing images of child sexual abuse (Art. 417\/44 of the Dutch Penal Code), which is punishable by imprisonment for five to ten years. Even mere possession is a criminal offense (Art. 417\/46 of the Dutch Penal Code).<\/p>\n\n\n\n

Are anime or manga drawings of minors in a sexual context a criminal offense?<\/strong>
According to this ruling, no\u2014when it is immediately clear that no lifelike minor is depicted. The court ruled that such clearly non-realistic images fall outside the legal definition, no matter how morally reprehensible they may be. Other judges may draw the line differently when it comes to semi-realistic styles; it remains a case-by-case assessment.<\/p>\n\n\n\n

What are the risks for anyone who possesses or creates AI-generated images of child abuse?<\/strong>
In addition to a prison sentence or detention, the defendant risks having all of his equipment forfeited. In this case, the defendant was granted a suspended sentence, coupled with four years of probationary conditions including mandatory specialized counseling, in part because he had no prior criminal record and was already facing professional consequences.<\/p>\n\n\n\n

Conclusion<\/h3>\n\n\n\n

The Court of First Instance of West Flanders, Kortrijk Division, confirms that existing Belgian criminal law is sufficient to address AI-generated images of child abuse: realistic images of nonexistent minors are already considered images of sexual abuse of minors, and whoever generates them is deemed to have produced them. The line is drawn at what appears to be lifelike at first glance, meaning that clearly fictional drawings, such as anime, remain outside the scope of criminal law in Belgium. The European recast of the Child Sexual Abuse Directive is expected to enshrine this distinction.<\/p>\n\n\n\n

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Do you have a question about the criminal law risks associated with AI-generated images, or are you or your company facing an investigation into online imagery? Contact our attorneys specializing in AI law and cybercrime for an initial assessment of your case.<\/a><\/div>\n<\/div>\n\n\n\n