LEY NÚM. 21.522

INTRODUCE A NEW PARAGRAPH IN TITLE VII OF BOOK II OF THE CRIMINAL CODE, RELATING TO THE SEXUAL TRADE AND MATERIAL EXPLOTATION OF CHILDREN, CHILDREN AND ADOLES

Bearing in mind that the H. National Congress has approved the following

Bill:

"Article 1.- Enter the following amendments to the Criminal Code:

1. In Article 94 bis, delete the expression "366 quinquies", and intercálase, between the expression "367 ter" and the point and comma that follows it, the following: ", 367 quater, 367 septies".

2. Replace the first and second subparagraphs of article 366 quater, by the following first, second and third paragraphs, with the current third, fourth and fifth subparagraphs, to be fourth, fifth and sixth respectively:

"Article 366 quater. Anyone who, without taking a sexual action in the above terms, will be punished with lesser presiding in their mid to maximum degree, in order to obtain sexual excitement or sexual excitement from another person.

If a person under fourteen years of age is determined to perform sexually meaningful actions in front of him or another person, or is made to see or hear pornographic material or sexual exploitation or to witness shows of the same character, the penalty shall be less presiding to the maximum extent.

It shall be punishable by the same penalty as the preceding paragraph to which it shall determine a person under fourteen years to send, deliver or exhibit:

(a) Images or recordings depicting actions of sexual significance of the person or another person under fourteen years of age.

(b) Images or recordings of their genitals or those of another person under fourteen years. ".

3. Insert, following article 366 quater, the following paragraph 6 bis, new:

"§ 6 bis. Commercial sexual exploitation and pornographic material of children and adolescents. ".

4. Defrost article 366 quinquies.

5. Replace article 367 with the following:

"Article 367. The person who promotes or facilitates the sexual exploitation of a person under the age of eighteen shall suffer the penalty of a higher degree of imprisonment.

If the act is perpetrated by exploiting it on the basis of its personal or economic dependence or if it occurs habitually, the penalty shall be higher in any of its degrees and a fine of thirty-one to thirty-five monthly tax units.

For the purposes of subparagraph 1 above, the use of a person under eighteen years of age for sexual action or sexually meaningful action with him in exchange for any kind of retribution to the victim or a third party shall be understood as sexual exploitation. ".

6. Replace in article 367 ter the text that states, "in exchange for money or other benefits of any kind, obtain sexual services from persons over the age of fourteen but under the age of eighteen years, without being measured by the circumstances of the crimes of rape or stupropor" by the following sentence: "obtain the realization of a sexual action of a person under the age of eighteen in exchange for any type of victim".

7. Insert, following article 367 ter, the following articles 367 quater, 367 quinquies, 367 sexies, 367 septies and 367 octies:

"Article 367 quater. Anyone who sells, imports, exports, distributes, disseminates or exhibits pornographic material or sexual exploitation, whatever its support, in which persons under the age of eighteen have been used, shall be punished with the penalty of minor imprisonment to their maximum degree.

The same penalty referred to in the preceding paragraph shall be sanctioned for participation in the production of such pornographic material or sexual exploitation.

Any person who maliciously stores or acquires pornographic material or sexual exploitation, regardless of their support, in the preparation of which persons under the age of eighteen have been used, shall be punished with lesser presidio to their average degree.

For the purposes of this article, it shall be understood by pornographic material or sexual exploitation in which persons under eighteen years of age have been used, any representation of such persons engaged in explicit, real or simulated sexual activities, or any representation of their genital parts for primarily sexual purposes, or any representation of such minors where their voice or image is used for the same purpose.

Article 367 quinquies. The conduct of marketing, distribution, dissemination and display, as noted in the previous article, will be understood to be committed in Chile when carried out through a telecommunications system that has access from national territory.

Article 367 sexies. The provisions of this paragraph shall not apply if the act is constitutive of an offence punishable with equal or greater penalty by any provision of Title VII, paragraphs 5 or 6, of the Second Book, in which case the spirit of profit, the delivery or promise of the surrender of money or species susceptible to pecuniary valuation shall be regarded as a single aggravating circumstance.

Article 367 septies. The person using technical devices transmits the image or sound of a situation or interaction that allows to witness, observe or listen to the realization of a sexual action or of an action of sexual significance, by a person under the age of eighteen, shall be punished with lesser presidio to his maximum degree.

Article 367 octies. For the purpose of determining the recidivism of article 12, circumstance 16, in the offences covered by this paragraph, the firm sentences handed down in a foreign State shall also be considered, even if the sentence imposed has not been fulfilled. ".

8. Replace in the heading of Title VII, paragraph 7, of Book II the expression "two previous paragraphs" with "three previous paragraphs".

9. Replace in the first paragraph of Article 368 the expression "in the previous two paragraphs" by "in the previous three paragraphs".

10. Replace in Article 368 bis the expression "paragraphs 5 and 6 of this Title" with "the three preceding paragraphs".

11. Article 368 ter:

(a) Delete the expression "366 quinquies,".

(b) Replace the expression "or 374 bis" with ", 367 quater or 367 septies".

12. Replace in paragraph 4 of Article 369 the expression "in paragraphs 5 and 6 of this Title" with "in the previous three paragraphs".

13. Delete article 369 bis.

14. Article 369 ter:

(a) Delete the expression "366 quinquies,".

(b) Replace the expression "374 bis, first and 374 ter" with "367 quater, first and second paragraphs, and 367 septies".

15. Article 369 quinquies:

(a) Delete the expression "366 quinquies,".

b) Incorporate, after the expression "367 ter", the expression ", 367 quáter and 367 septies".

16. Replace in the first paragraph of Article 370 bis the expression "the two preceding paragraphs" by "the three preceding paragraphs".

17. Replace in the first paragraph of Article 371 the expression "the two preceding paragraphs" by "the three preceding paragraphs".

18. Article 372:

(a) Replace in its first subparagraph the expression "the two preceding paragraphs" by "the three preceding paragraphs".

(b) In its second subparagraph:

I. Delete the expression "366 quinquies,".

ii. Intercálase, entre la expresión "367 ter" y la conjunción copulativa "y" que le follows, la expresión ", 367 quáter, 367 septies".

19. Replace in Article 372 ter the expression "the two preceding paragraphs" by "the three preceding paragraphs".

20. Refer to articles 374 bis and 374 ter.

Article 2.- Insert the following modifications into the Act No. 21.057which regulates videotaped interviews and other protective measures for minors, victims of sexual offences:

1. In paragraph 1 article 1:

(a) Replace the expression "in Articles 5 and 6 of Title VII of the Second Book" with "in Articles 5, 6 and 6 bis of Title VII of the Second Book."

(b) Delete the expression "374 bis;".

2. In numeral 2 article 32 No. 2which introduces a new article 110 bis in the Code of Criminal Procedure:

(a) Replace the expression "in Title VII, paragraphs 5 and 6, of the Second Book" with "in Articles 5, 6 and 6 bis of Title VII of the Second Book."

(b) Delete the expression "374 bis;".

Article 3.- Please enter the following amendments to article 2 of Act No. 21.160, which states that sexual offences committed against minors are unpredictable:

1. Delete the expression "366 quinquies,".

2. Add, then the expression "367 ter", the following: ", 367 quáter, 367 septies".

Article 4.- Replace in article 4 of Act No. 20,084, which establishes a system of responsibility of adolescents for offences of criminal law, the term "366 quinquies" for "367 quater sub-second,".

Article 5.- Delete in article 15 bis (b) of Law No. 18,216, which establishes penalties that indicates as substitutes for custodial or restrictive sentences, the expression "366 quinquies", and add, following the expression "367 ter", the following: ", 367 quáter subsection second,".

Article 6.- Replace in third paragraph article 3 of Decree Law No. 321, 1925which establishes the Conditional Freedom for persons sentenced to custodial sentences, the expression "366 quinquies, 367" for the following: "367, 367 ter, 367 quater, 367 septies".

Article 7.- Enter the following modifications Code of Criminal Procedure:

1. Replace in paragraph 1 article 191 bis the expression "paragraphs 5 and 6" by "paragraphs 5, 6 and 6 bis".

2. Replace in the fourth paragraph article 469 the phrase "366 quinquies, 374 bis, first subparagraph, and 374 ter" by "367 quater, first and second paragraphs, 367 quinquies and 367 septies".

Article 8.- Enter the subparagraph (e) article 17 of the Law No. 19.856which creates a system of social reinsertion of convicted persons on the basis of observation of good conduct, the following modifications:

1. Delete the expression ", 366 quinquies".

2. Intercálase, entre la expresión "367 ter" y la conjunción copulativa "y" que le follows, la expresión ", 367 quáter".

3. Replace the expression "374 bis" with "367 septies".

Article 9.- Enter (a) article 27 of the Act No. 19.913which creates the Financial Analysis Unit and modifies various provisions in the area of money laundering and laundering, the following modifications:

1. Delete the expression ", 366 quinquies".

2. Replace the expression "374 bis" with "367 quater, 367 septies".

Article 10.- In paragraph (b) of article 17, paragraph 2, of Law No. 19,970, which creates the National System of DNA Records, between the expression "6°" and the copulative conjunction "y" that follows it, the expression ", 6° bis".

Article 11. Please enter, in the second section of Article 4 of Law No. 19,831, which creates the National Register of Remunerated Transport Services of Schools, the following modifications:

1. Intercálase, entre la expresión "6°" y conjunción copulativa "y" que le follows, la expresión ", 6° bis".

2. Delete the expression ", 374 bis".

Article 12.- Enter the following modifications in number 10° Article 6 of Professional Code of Tribunals:

1. Replace the expressions "366 quinquies, 367 and 367 bis No.1" with the expressions "367, 367 quater sub-second and 367 septies".

2. Replace the expression "374 bis" with "367 quater".

Article 13.- Replace in the article 30 of the Law No. 19.846on Film Production Qualification, the phrase "366 quinquies, 374 bis and 374 ter" for the expression "367 quáter and 367 quinquies".

Article 14.- The acts committed prior to the entry into force of this law, as well as the penalties and other consequences imposed by them, shall be determined in accordance with the law in force at the time of their perpetration.

If the present law enters into force during the perpetration of the act, the provisions of the Act shall be made, provided that the new legal description of the act shall be made in full at the subsequent perpetration stage.

If the application of this Act is more favourable to the accused or accused by an act committed prior to its entry into force, it shall be subject to the provisions of the Act.

In order to determine whether the application of this Act is more favourable, all the provisions of the Act that are relevant to the judgement of the act must be taken into consideration.

For the purposes of the first and second preceding subparagraphs, the offence is understood to be committed at the time or during the period in which the punishable action is executed or incurs the punishable omission. ".

Having complied with the provisions of article 93, paragraph 1, of the Constitution of the Republic, and since I have had the right to adopt and punish it, therefore, to promute and take effect as the Law of the Republic.

Santiago, December 20, 2022.- GABRIEL BORIC FONT, President of the Republic.- Marcela Rios Tobar, Minister of Justice and Human Rights.- Kenneth Giorgio Jackson Drago, Minister of Social Development and Family.

What I am transcribing to you for your knowledge. He presents his compliments to you, Jaime Gajardo Falcón, Assistant Secretary of Justice.

Constitutional Court

Draft law introducing a new paragraph in Title VII of Book II of the Criminal Code on the Commercial Sexual Exploitation and Pornographic Material of Children and Adolescents, and amending other legal texts that it indicates, relating to bulletin No. 14.440-07

The Subrogant Secretary of the Constitutional Court, who subscribes, certifies that the Honorable Chamber of Deputies and Deputies sent the bill set forth in the heading, approved by the National Congress, in order that this Court exercise the control of constitutionality in respect of article 12 of the bill; and by judgement of 13 December 2022, in the Rol N° 13,830-22-CPR.

It states:

That article 12 of the draft law introducing a new paragraph in Title VII of Book II of the Criminal Code, on the commercial sexual exploitation and pornographic material of children and adolescents, and amending other legal texts that it indicates, corresponding to Bulletin No. 14.440-07, is in accordance with the Political Constitution.

Santiago, December 16, 2022.- Sebastián Andrés López Magnasco, Secretary (S).