Criminal Law Policy on Child Perpetrators of Sexual Intercourse: A Child Protection Perspective

Abstract

The handling of children as perpetrators of sexual intercourse offenses triggers a normative antinomy between the specific minimum criminal penalty of 5 years under the Child Protection Law and the restriction on diversion eligibility to those under 7 years of age under the Juvenile Criminal Justice System Law (SPPA Law). This inconsistency automatically closes the door to diversion and forces child offenders to undergo a formal, retributive judicial process. This study aims to analyze this normative antinomy and formulate an ideal reconstruction of criminal law policy based on the principle of the best interests of the child and the paradigm of the New Criminal Code (Law No. 1 of 2023). This normative legal research employs a legislative, conceptual, and analytical approach using qualitative analysis techniques based on deductive reasoning. The results of the study indicate that the rigid approach of the Child Protection Law is oriented toward the act (daatstrafrecht), whereas the New Criminal Code advocates a shift toward the offender’s circumstances (daderstrafrecht) through sentencing guidelines, a double-track system, and rechterlijk pardon (judicial pardon). An ideal policy calls for reforming the criteria for diversion to a qualitative-casuistic approach, prioritizing rehabilitative sanctions over imprisonment, and implementing the Dual Protection Model. This model provides a balanced protection between the rights to recovery and restitution for child victims and the rights to rehabilitation, non-stigmatization, and continued education for child offenders.