Have you been charged with administering a website used to deal with child abuse material?
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What does it mean to be charged with administering a website used to deal with child abuse material?
Being charged with administering a website used to deal with child abuse material under Section 51E of the Crimes Act 1958 (“CA”) indicates that an individual (referred to as “A”) is accused of managing or assisting in the operation of an online platform that facilitates access to child abuse material. This serious offence emphasises the legal system’s commitment to combating child exploitation and abuse.
What must Prosecution Must Prove:
To secure a conviction under Section 51E, the prosecution must establish the following elements beyond a reasonable doubt:
- Evidence must show that ‘A’ had a role in administering the website, such as managing its content, user memberships, or technical infrastructure.
- The prosecution must demonstrate that the website was used by others to deal with child abuse material. This may involve digital forensics, user activity logs, or witness testimony.
- The prosecution must prove either:
- That ‘A’ intended the website to be used for dealing with child abuse material (subjective intent); or
- ‘A’ was aware that the website was being used for that purpose (subjective awareness).
What constitutes “Child Abuse Material”?
Under Section 51A of the CA, “child abuse material” is defined as material that meets the following criteria:
(a) Content or Depictions:
The material must depict or describe one or more of the following involving a person who is, appears to be, or is implied to be a child (i.e., under 18 years of age):
- (i) Torture, cruelty, or physical abuse:
- The child is shown as a victim of torture, cruelty, or physical abuse, regardless of whether the abuse is sexual in nature.
- (ii) Sexual abuse:
- The child is depicted as a victim of sexual abuse.
- (iii) Sexual activity or pose:
- The child is shown engaging in, or appearing to engage in, a sexual pose or sexual activity, regardless of whether this occurs in the presence of another person.
- (iv) In the presence of sexual activity:
- The child is shown in the presence of another person who is engaging in or appearing to engage in a sexual pose or activity.
- (v) Genital or anal region:
- The material focuses on or depicts the genital or anal region of the child.
- (vi) Breast area:
- In the case of a female child, the material focuses on or depicts the breast area.
(b) Offensiveness:
The material must be something that reasonable persons would regard as offensive, considering the circumstances. This means that ordinary members of the community, applying contemporary standards of morality and decency, would find the content offensive.
Penalties for administering a website used to deal with child abuse material:
A person found guilty of this offence can face a maximum penalty of level 5 imprisonment, which equates to up to 10 years.
Where will my case be heard?
Involving a child in the production of child abuse material cases can ONLY be heard in the County Court or Supreme Court of Victoria.
Factors and Defences to Consider:
Under Section 51J an individual (referred to as “A”) may not be held liable for a child abuse material offence, if the conduct in question is performed in good faith as part of their official duties. This exception is crucial for allowing certain professionals to carry out their responsibilities without the fear of being prosecuted for handling child abuse material in a legitimate context.
And/or
Section 51K states that an individual is not guilty of a child abuse material offence if the material in question was classified, or would be classified, as anything other than Refused Classification (RC).
And/or
Section 51S provides an offence if, a person (referred to as “A”) takes all reasonable steps to prevent the use of a website for child abuse material upon becoming aware of such usage.
To evaluate whether “A” has taken reasonable steps, the following actions should be considered, which should be done as soon as practicable:
- Shutting down the website.
- Modifying the website’s operation to prevent its use for child abuse material.
- Notifying law enforcement about the website’s usage for child abuse material and following any reasonable instructions given by the police.
- Informing a relevant industry regulatory authority about the website’s usage for child abuse material and adhering to any reasonable directions from that authority.
And/or
Section 51L defences a person charged with a child abuse material offence for:
- Artistic Merit:
- The material was not created with the involvement of anyone under 18 at the time of its production.
- The material possesses artistic merit.
- Public Benefit:
- The material serves a public benefit.
For this defence, material that is of public benefit includes those created for legitimate medical, legal, scientific, or educational purposes.
A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence
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Offence to Perform Female Genital Mutilation
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Intention of Having Prohibited Female Genital Mutilation Performed
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Sexual Activity with the Corpse of Human Being
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Rape or Rape by Compelled Penetration
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Sexual Assault
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Sexual Assault by Compelling Sexual Touching
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Assault with Intent to Commit a Sexual Offence
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Threat to Commit a Sexual Offence
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Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
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Administration of an Intoxicating Substance for a Sexual Purpose
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Failing to Comply with Sex Offender Reporting
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Abduction or Detention for a Sexual Purpose
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Furnishing False or Misleading Information
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Indecent Act with a Child Under the Age of 16
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Sexual Activity Directed at Another Person
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Sexual Penetration of a Child Under the Age of 12
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Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
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Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
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Persistent Sexual Abuse of a Child Under the Age of 16
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Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
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Grooming for Sexual Conduct with a Child under the Age of 16
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Loitering Near Schools Etc by a Sexual Offender
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Failure by a Person in Authority to Protect a Child from a Sexual Offence
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Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
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Causing or Allowing a Sexual Performance Involving a Child
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Inciting or Offering a Sexual Performance Involving a Child
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Facilitating a Sexual Offence Against a Child
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Sexual Penetration of a Child or Lineal Descendent
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Sexual Penetration of a Stepchild
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Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
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Sexual Penetration of a Sibling or Half-Sibling
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Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
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Child in the Production of Child Abuse Material
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Distributing Child Abuse Material
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Administering a Website Used to Deal With Child Abuse Material
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Accessing Child Abuse Material
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Assisting a Person to Avoid Apprehension
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Sexual Assault of a Person with Cognitive Impairment or Mental Illness
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Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
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Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
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Aggravated Sexual Servitude
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Deceptive Recruiting for Commercial Sexual Services
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Bestiality
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Child Stealing
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Bigamy
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Abortion Performed by Unqualified Person
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Concealing the Birth of a Child
What happens next?
If you are facing charges related to administering a website used to deal with child abuse material, your immediate next step is to contact MK Law to schedule an initial consultation with their experienced legal team. During this meeting, you will have the opportunity to discuss the specifics of your case in detail, allowing the lawyers to evaluate your situation comprehensively and provide you with tailored preliminary advice.
MK Law will meticulously review all relevant information and may request additional evidence or documentation to strengthen your defence. Throughout the legal process, they will keep you informed, offering ongoing legal guidance and preparing you for any necessary court appearances. When your case goes to trial, MK Law will represent you, working diligently to advocate for the best possible outcome on your behalf.
To begin, reach out to MK Law by calling 1800 130 120 or visiting their website to arrange your consultation.
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