Have you been charged with involving a child in the production of child abuse material?
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What does it mean to be Charged with Involving a child in the production of child abuse material?
Under Section 51B of the Crimes Act 1958 (“CA”), a person (Person A) commits an offence if they intentionally involve a child (Person B) in the production of child abuse material.
This can include inviting, encouraging, causing, allowing, or using the child in the production of such material. The offence applies if Person A knows that Person B is a child or probably a child, and if Person A knows or probably knows that the material produced qualifies as child abuse material.
What must Prosecution Must Prove:
To secure a conviction for this offence, the prosecution must establish the following elements beyond reasonable doubt:
- Person ‘A’ must have intentionally involved Person ‘B’ in the production of material. This can include:
- Inviting or encouraging the child to participate,
- Causing or allowing the child to be involved, or
- Using the child in the production process.
- Person ‘B’ must be under 18 years old (a child).
- Person ‘A’ must know, or probably know, that Person ‘B’ is a child or is likely to be a child.
- The material produced must be child abuse material, defined as offensive or exploitative content involving or depicting a child in an abusive manner.
- Person ‘A’ must know, or probably know, that the material is or is likely to be child abuse material.
What does it mean to be Charged with Producing Child Abuse Material?
Under Section 51C of the CA, it is an offence for an individual to intentionally produce child abuse material, which includes any form of media that exploits or endangers children. The offence requires that the person, referred to as “A,” not only creates such material but also has knowledge or belief that it is, or likely is, child abuse material. The methods of production can vary widely, encompassing activities like filming, photographing, writing, or digitally manipulating existing materials.
What must the prosecution prove?
To secure a conviction under Section 51C, the prosecution must establish the following elements beyond a reasonable doubt:
- The accused (A) intentionally produced the material in question.
- The produced material qualifies as child abuse material.
- ‘A’ was aware that the material was, or likely was, child abuse material at the time of its production.
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 involving a child in the production of child abuse material:
This is a serious offence which carries a level 5 imprisonment being a maximum of 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:
1. Defence of Artistic Merit or Public Benefit (Section 51L)
A. Artistic Merit Defence
Individuals charged with child abuse material offences may argue:
- The material was not produced with any involvement of a person under 18 at the time of its production.
- The material possesses artistic merit, meaning it could be part of art forms such as film, photography, literature, or visual art that hold cultural, creative, or expressive value in society.
B. Public Benefit Defence
Alternatively, this defence may apply if the material serves a public benefit, such as:
- Being created for genuine medical, legal, scientific, or educational purposes.
- For example, material used in medical research, legal investigations, scientific studies, or educational programs aimed at child protection may qualify.
2. Defence for Children (Section 51M)
This defence applies in limited circumstances when the person charged (referred to as “A”) is also a child.
Key Elements of the Defence:
a. The accused must be under 18 at the time of the offence.
b. The defence only applies if the child abuse material is in the form of an image (e.g., photograph or digital picture).
c. The image may depict one or more individuals, whether or not it includes “A.”
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 have been no more than two years older than the youngest person depicted in the image, or reasonably believed that they were not more than two years older.
3. Defence for Images of Oneself (Section 51O)
This defence applies when the material involves images of the accused (“A”) as a child.
Key Elements of the Defence:
a. The image must depict “A” when they were under 18. “A” must prove this on the balance of probabilities.
b. The image must not show “A” committing an offence punishable by imprisonment.
c. “A” cannot have distributed the image; if shared, this defence will not apply.
d. Applicability to Section 51B(1): If the charge is under Section 51B(1), which deals with involving a child in producing child abuse material, the defence applies only if the image involves “A” as a child.
4. Defences Related to Age and Relationships (Sections 51P, 51Q, 51R)
Several additional defences are available under different sections of the law:
- (Section 51P): Applies where the depicted child is close in age to the accused, and the accused reasonably believed the child consented to the production of the material.
- (Section 51Q): Applies where the depicted child was married or in a domestic partnership with the accused.
- (Section 51R): Applies where the accused believed they were married to or in a domestic partnership with the depicted child.
5. Exceptions (Section 51J)
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
6. Defence for Classified or Refused Material (Section 51K)
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).
7. Exceptions Applying to Children
Two specific exceptions for children (referred to as “A”) protect those who produce or are involved in child abuse material under certain circumstances.
Exception 1: Images of Oneself (Section 51O)
a. The person must be under 18 at the time of the offence.
b. The material must qualify as child abuse material (e.g., a sexually explicit image of a child).
c. The image only shows “A” without any other individuals present (e.g., a 15-year-old takes a photograph of themselves and stores it on their phone).
Exception 2: Victim of a Criminal Offence
a. The person must be under 18 at the time of the offence.
b. The material must qualify as child abuse material.
c. The image depicts a criminal offence in which “A” is the victim, and the offence is punishable by imprisonment (e.g., sexual abuse).
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.
Given the severity of these charges, it is crucial to speak to a criminal defence lawyer today for a tailored defence strategy that suits your individual circumstances.
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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 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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