We feel that the unbanning of Martijn forms a great risk for children in The Netherlands and elsewhere. We also feel that, through this latest ruling, the Dutch justice system has shown that the freedom of speech of an organization with immoral and dangerous beliefs like Martijn, apparently overrules the physical integrity of children. The appeal court of Leeuwarden recognized the ‘glorification of sexual relations with children’ but found no legal grounds to uphold the ban on Martijn. The court said that a group which advocates for pedophilia goes against “certain principles in the Dutch criminal system” but argued that the Dutch society is strong enough to withstand such “undesirable statements and abhorrent behavior” without banning it. Furthermore, the convictions of its members in the past could not be directly related to the activities of Martijn.
In the court case against Martijn the judge had to decide whether Martijn violated Article 2:20 of the Dutch Civil Code (art. 2.20 BW: A legal person the activity of which is contrary to public policy shall be declared a prohibited legal person and shall be wound up by order of the district court upon the application of the Public Prosecution Service). For the judgment whether Martijn can be banned based on art 2.20 of the Dutch Civil Code, two questions rise:
1: Does the legal person’s presence constitute a serious degradation of essential principles of the legal system?
2: If yes, can those behaviors disrupt society?
The appeal court in Leeuwarden decided in accordance with the court of Assen that the first question should be answered affirmative. However, in contradiction to the court of Assen, they did not conclude that Martijn’s activities would disrupt society. Although the courts acknowledge Martijn’s glorification of sexual relationships between adults and children, the appeal court stated that the Dutch society will have enough resilience to protest against unwanted expressions (that are not punishable by law) and behaviors of organization Martijn. Crucial in this matter was the court’s opinion that art 2.20 of the Dutch Civil Code is in place only to protect the interests of society, and not those of children.
The appeal court did not take into account that children form a significant part of society and that they will eventually become the society completely. Children are also the target of the attention of Martijn. Our opinion is that Martijn, by means of glorifying sexual contact with children, disrupts the lives of children. This will consequently lead to a disruption of society.
Even if the Supreme Court decides that there is no ground for the re-banning of Martijn, the Dutch government is obliged to take action. The Dutch government ratified multiple conventions that apply in this matter. First, Article 34 of the United Nations Convention on Rights of the Child states:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
We believe that the banning of organizations like Martijn would be considered an appropriate measure as stated in this article of the Children’s Rights Charter to protect children from any unlawful sexual activity and practices. In addition to Martijn’s advocacy work for the allowance of sexual contact between adults and children, they also advocate for the acceptance of child pornography. This is a clear violation of the in 2005 ratified UNCRC Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography which states in Article 9, Clause 5 that:
States Parties shall take appropriate measures aimed at effectively prohibiting the production and dissemination of material advertising the offences described in the present Protocol.
The Lanzarote Convention, which was ratified by the Dutch government in 2010, provides even more convincing evidence that legislation should be installed to re-ban Martijn. Three articles are of importance:
Article 4 – Principles
Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children.
Article 8 – Measures for the general public
1 Each Party shall promote or conduct awareness raising campaigns addressed to the general public providing information on the phenomenon of sexual exploitation and sexual abuse of children and on the preventive measures which can be taken.
2 Each Party shall take the necessary legislative or other measures to prevent or prohibit the dissemination of materials advertising the offences established in accordance with this Convention.
Article 18 – Sexual abuse
1 Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalized:
a) Engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;
b) Engaging in sexual activities with a child where:
– Use is made of coercion, force or threats; or
– Abuse is made of a recognized position of trust, authority or influence over the child, including within the family; or
– Abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.
We believe the articles in the Lanzarote Convention provide enough legal grounds to uphold a ban on Martijn and similar organizations.
To conclude, Martijn’s advocacy work is disruptive for children and society. It has a harmful impact on society due to their obvious violation of children’s physical and sexual integrity simply by their existence. Not only does the Dutch Civil Code provide legislation against groups of this kind, but international conventions, when taken seriously, provide enough ground to introduce new legislation against Martijn and similar associations.