Have you been Charged with Accessing Child Abuse Material?
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What does it mean to be charged with possession of child abuse material?
Under Section 51G of the Crimes Act 1958 (“CA”), a person commits an offence if they knowingly possess child abuse material. This provision emphasises the seriousness of possessing such material, as it holds individuals accountable not only for physical possession but also for the control of access to electronic material, regardless of whether they have physical custody of it.
The legislation also clarifies that the geographical location of the material or the accused does not absolve responsibility, as long as either the person or the material is situated within Victoria during the commission of the offence.
What must Prosecution Must Prove:
To secure a conviction under Section 51G, the prosecution must prove the following elements:
1.The accused (A) must have knowingly possessed child abuse material.
This means they were aware that they had the material in their possession.
2. The prosecution must establish that ‘A’ possessed the child abuse material, which includes electronic material.
Possession may be demonstrated by showing that ‘A’ had control over the material, regardless of whether they had physical possession of it.
What does it mean to be Charged with Producing Child Abuse Material?
Being charged with accessing child abuse material under Section 51H of the CA means that an individual (referred to as “A”) is accused of intentionally viewing or displaying material that is classified as child abuse material, while being aware that the material is or likely is such material.
What must the prosecution prove?
To successfully prosecute an individual under Section 51H, the prosecution must establish the following elements:
1. The accused (A) must have intentionally accessed the material.
This includes any deliberate action taken to view or display the child abuse material.
2. The prosecution must prove that the material accessed is indeed classified as child abuse material.
3. ‘A’ must have known that the material was, or probably was, child abuse material at the time of access.
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 possessing child abuse material:
Level 5 imprisonment, with a maximum sentence of 10 years.
Penalties for accessing child abuse material:
Level 5 imprisonment, with a maximum sentence of 10 years.
Where will my case be heard?
Possessing and accessing 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 51L defends a person charged with a child abuse material offence if it’s 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 considered to be of public benefit includes those created for legitimate medical, legal, scientific, or educational purposes.
Defence for Children (Section 51M)
This defence applies in specific circumstances when the accused individual (“A”) is a child.
Key Elements of the Defence:
a. A must be under 18 at the time of the offence.
b. The child abuse material must be an image (e.g., photograph or digital picture).
c. The image may show one or more individuals, with or without “A” included.
d. Content of the Image:
- The image must not depict a criminal act punishable by imprisonment, or
- If it does, “A” must have reasonably believed the act was not a criminal offence.
e. “A” must not be more than two years older than the youngest person depicted in the image or must reasonably believe they are not more than two years older.
And/or
Under section 51N of the Crimes Act, it is not an offence if one person in an image is a child, and the act depicted in that image is not punishable by imprisonment.`
And/or
Section 51O allows for a defence if the accused possesses an image that meets certain criteria: the image must depict the accused as a child, not show them committing any criminal offence that is punishable by imprisonment, and the accused must not distribute the image to others. The onus is on the accused to prove that the image meets these conditions on the balance of probabilities.
And/or
Defences Related to Age and Relationships (Sections 51P, 51Q, 51R)
Several additional defences are available under different sections of the law:
a. (Section 51P): This applies when the depicted child is close in age to the accused, and the accused reasonably believed the child consented to the production of the material.
b. (Section 51Q): This defence applies if the depicted child was married to or in a domestic partnership with the accused.
c. (Section 51R): This applies if the accused believed they were married to or in a domestic partnership with the depicted child.
And/or
Section 51T, allows the accused (A) to argue that they did not intentionally acquire the material in question. To successfully invoke this defence, ‘A’ must demonstrate that upon realising they possessed the child abuse material, they took all reasonable steps to eliminate their possession as soon as it was feasible under the circumstances. Essentially, this defence aims to protect individuals who inadvertently come into possession of such material and act promptly to rectify the situation.
NOTE: Section 51T does not apply to assessing charges.
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 possession and accessing 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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