Child Abuse Material Defences

This article will talk about the different child abuse material defences under the Crimes Act Victoria. The following are the child abuse material defences:

1. Accused not more than 2 years older than 16- or 17-year-old child and acts with child’s consent (51P)
2. Marriage or domestic partnership (51Q)
3. Reasonable belief in marriage or domestic partnership (51R)
4. Reasonable steps to prevent use of a website for child abuse material (51S)
5. Unsolicited Possession (51T)

In Australia, child abuse material is a grave offence that carries penalties under the Crimes Act 1958 (VIC). These harmful items have a terrible effect on children, producing trauma both psychologically and physically that can last a lifetime. To know more, please read our article on Child Abuse Material below.

READ: Child Abuse Material

Child Abuse Material Defences: Accused’s Age

Section 51P of the Crimes Act considers the accused’s age as one of the child abuse material defences available under the law. Thus, if the accused is not more than 2 years older than a 16 or 17-year-old child and the child acts with consent, it may be made a defence.

For easy reference, A will refer to the accused and B will refer to the child.

This defence specifically applies to the following circumstances:

• the child abuse material is an image; and
• at the time at which the image was first made, B whose depiction in the image makes it child abuse material was aged 16 or 17 years and was not, or had not been, under the offender’s care, supervision or authority; and
• the image does not depict an act that is a criminal offence punishable by imprisonment; and
• A does not distribute the image to any person other than B; and
• A is not more than 2 years older than B; and
• at the time of the conduct constituting the offence, A reasonably believed that B consented to that conduct.

Child Abuse Material Defences: Marriage/Domestic Partnership or Reasonable Belief of Such

Section 51Q of the Act talks about the defence of marriage or domestic partnership as a defence. This defence applies if the following circumstances are present:

• The child abuse material is an image.
• The image is child abuse material because of its depiction of another person (B).
• The image does not depict a criminal offence punishable by imprisonment.
• A does not distribute the image to any person other than B.
• At the time at which the image was first made B was 16 or 17 years of age and:

• either A and B were married to each other, and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
• where A was B’s domestic partner, if B was under A’s care, supervision or authority, the domestic partnership commenced before B came under A’s care, supervision or authority; and
• At the time of the conduct constituting the offence:

• either A and B were married to each other, and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
• B consented to the conduct constituting the offence.

In relation to 51Q, Section 51R talks about a reasonable belief in marriage or domestic partnership as a defence. For this defence to apply, the circumstances mentioned above must be present AND there must be a reasonable belief that:

1. At the time the image was first made –  

• B was 16 or 17 years of age
• Either A and B were married to each other
• The domestic partnership commenced before B came under A’s care, supervision or authority

2. At the time of the conduct constituting the offence – 

• either A and B were married to each other
• there was reasonable belief by A that B consented to the conduct of the criminal act.

Child Abuse Material Defences: Preventing the Use of a Website for Child Abuse Material

One of the child abuse material defences under the law is the application of reasonable steps in preventing the use of websites for these materials. 

Section 51S of the Act discusses the reasonable steps to prevent use of a website for child abuse material. This is a defence to a charge for a s51E offence (administering a website used to deal with child abuse material). 

This rule states that if a person has become aware that another person uses a particular website to deal with child abuse material, he or she must take all reasonable steps in the circumstances to prevent any person from being able to use the website to deal with child abuse material

Moreover, this provision lays out the test whether a person has taken reasonable steps in the circumstances. Thus, the following must be observed to determine whether he or she really took reasonable steps:

1. shut the website down.
2. modified the operation of the website so that it could not be used to deal with child abuse material;
3. notified a police officer that the website is being, or has been, used to deal with child abuse material and complied with any reasonable directions given to A by a police officer as to what to do in relation to that use of the website.
4. notified a relevant industry regulatory authority that the website is being, or has been, used to deal with child abuse material and complied with any reasonable directions given to A by that authority as to what to do in relation to that use of the website.

Child Abuse Material Defences: Unsolicited Possession

This defence under section 51T talks about the defence of unsolicited possession against a s51G offence (possession of child abuse material). Here, a person must prove on the balance of probabilities that:

1. The offender did not intentionally come into possession of child abuse material; and
2. On becoming aware of having come into possession of child abuse material, the offender, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possessing the material.

Seek Legal Advice from Criminal Law Experts

If you want to know more about the child abuse material defences, don’t hesitate to contact a criminal law expert from JB Solicitors. The criminal justice system can be overwhelming, and our competent lawyers can protect your rights throughout the process. 

Schedule a consultation today.