ANÁLISIS DE LOS ARTICULOS 103 Y 104 DE LA NORMA PENAL ECUATORIANA FRENTE A PRINCIPIOS PROCESALES

Abstract

Ecuadorian criminal law first addressed the sexual exploitation of minors in digital environments with the enactment of the Comprehensive Organic Criminal Code (COIP) in 2014, specifically through Articles 103 and 104. These provisions are punitive in nature, as their function is limited to defining offenses and establishing penalties. Article 103 has been amended twice: once in August 2021, which slightly adjusted its wording, and again in July 2024, which incorporated the verb "to finance" and mentioned emerging technologies. Article 104, in contrast, has remained unchanged, with a punitive range of ten to thirteen years. The legal problem can be broken down into two aspects: first, the terminology "child pornography" is technically inadequate compared to current international standards, which recommend using "Child Sexual Abuse Material - CSAM," a term that reflects the truly violent nature of the conduct; Second, there is a disproportionate difference in sentencing between the two offenses, since those who produce or finance the material face a maximum sentence of sixteen years, while those who merely possess or distribute it receive thirteen years. This minimal difference does not follow the logic of an ascending scale where the producer occupies the highest rung. The analysis focuses on the objective and subjective elements of the offense, international standards of terminology, and the principles of proportionality and progressiveness.