Child Abuse Material Under The Crimes Act 1900

In 2020 alone, more than 200 Australian’s have collectively paid more than $1.3 million to watch live videos of child sexual abuse activities from the Philippines alone. The Australian Institute of Criminology identified and matched the transactions from accounts in Australian to people arrested for child sexual abuse profiteering.

What Are The Legal Penalties For Engaging With Child Abuse Material?

In New South Wales, under the Crimes Act 1900, it is an offence to produce, disseminate or possess child abuse material. If proven guilty, this offence carries a maximum term of 10 years imprisonment or 14 years if found to have used a child to produce the illegal materials. 

– Possession includes physical custody or control of material and/or data

–  Dissemination includes sending, supplying, transmitting, entering an agreement or arrangement to do so and making available for access by another

– Production includes filming, altering or manipulating and entering an agreement or arrangement to do so

What Is Child Abuse Material?

Child Abuse Material is any medium that shows or describes a child in a way that a reasonable person would be regarded as offensive after considering all circumstances. Material that could be considered offensive consists of:

– A child as a victim of torture, cruelty or physical abuse,

– A child engaging in a sexual pose or sexual activity (whether or not in the presence of other persons)

– A child in the presence of another person who is engaging in a sexual pose or sexual activity

– The private parts of a child

When deciding whether a reasonable person would regard the material offensive after considering all the circumstances, the court must acknowledge the following:

– Ordinary standards of decency and morality by reasonable adults

– Any literary, artistic or educational merit of the material

– Any journalistic merit of the material being as a record or report of a matter of public interest

– The general character of the material (including whether it is of a medical, legal or scientific character)

Who Is Considered A ‘Child’?

A child is considered a person who is under 16 years of age. The legal ruling of a ‘child’ became an issue in the case of Jimenez v R [2017], where the Court allowed an appeal against the conviction of Mr Jimenez. The appeal was allowed on the basis that he had been wrongly advised to plead guilty to a charge involving a ‘child’ that was under the age of 18, not 16 as the Crimes Act 1900 (NSW) states. However, under the Criminal Code, child pornography is defined as “material that depicts a person who is, or appears to be, under 18 years of age”. Therefore, Mr Jimenez was not guilty of a state child abuse material offence, but a federal child pornography offence.

Defences To Child Abuse Material Charges For Under 18’s

A person under 18 years can rely on these exceptions to criminal liability if a reasonable person would consider the possession of the material by the accused person to be acceptable, having regard to the following:

– The nature and content of the material

– The circumstances in which the material was produced and came into the possession of the accused person

– The age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material

– The age, intellectual capacity, vulnerability or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of a police officer

–  The relationship between the accused person and the child depicted in the material

The stated defences for under 18’s is aimed to protect underage persons who have engaged in sexting behaviour from criminal liability. However, the accused person must prove on the balance of probabilities that the material depicts only the accused person and no other person.

*Disclaimer:This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*

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