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Child abuse material (pornography)

Information about child pornography offences and young people.

If an intimate image (nude, sexual, sexy picture) is of a person who is under 18 years old it is defined as child pornography under Commonwealth laws. However, the laws that govern child pornography offences in Victoria changed on 1 July 2017. Offences relating to offensive material that shows or describes a person who is (or who appears to be, or is implied to be) a child is now called child abuse material, instead of child pornography.

See s. 473.1—Criminal Code Act 1995 (Cth)(opens in a new window) and s. 51A—Crimes Act 1958 (Vic)(opens in a new window).

This page includes the following information about child abuse and pornography offences:

Child abuse material (formerly child pornography) law in Victoria

The offences were created to protect children from abuse and exploitation. The offences include defences and exceptions designed to prevent children being found guilty of these offences because of their 'sexting' activity. This activity may be penalised under the 'intimate images' provisions of sections 53O to 53U of the Crimes Act (Vic) instead.

See Exceptions that apply to children (below) and Sexting offences (intimate image offences).

What is child abuse material?

Child abuse material is material that:

  • depicts a person who is (or who appears, or is implied to be) a child:
    • as a victim of torture, cruelty of physical abuse (which need no be sexual)
    • as a victim of sexual abuse
    • engaged in (or appearing to engage in) a sexual pose or activity (whether alone or with others)
    • in the presence of another person who is engaged in (or appears to be engaged in) a sexual pose or activity, or
  • the genital or anal region of a person who is (or who appears to be or is implied to be) a child
  • the breast area of a person who is (or who appears to be or is implied to be) a girl, and

reasonable people would regard this as being offensive in the circumstances.

See s. 51A—Crimes Act 1958 (Vic)(opens in a new window).

...depicts or describes

According to the guide produced by the Department of Justice and Community Safety (DJCS), the offence includes depictions or descriptions to make it clear that the offence is not limited to photographs of actual children. It could include, for example a cartoon, drawing, collage or pornographic story.

Material is very broadly defined to include any film, audio, photograph, printed matter, image, computer game or text, or any electronic material or any other thing of any kind.

See s. 51A—Crimes Act 1958 (Vic)(opens in a new window) and p. 31 DJCS—Crimes Amendment (Sexual Offences) Act 2016: An introduction(opens in a new window).

Reasonable person would find offensive

This creates an objective test about the nature of the material that is to reflect community standards. So, for example a family photograph of a naked baby would not meet the definition of the offence.

See p. 31 DJCS—Crimes Amendment (Sexual Offences) Act 2016: An introduction(opens in a new window).

Offences

Involving a child in the production of child abuse material

A person may be charged with this offence if they intentionally involve a child in the production of child abuse material. The person must know that the person is a child or is probably a child that the material is or probably is child abuse material.

This will include if they invite or encourage, cause or allow the child to be involved but also covers situations where the child offers to be involved. The child need not be depicted in the material.

See s. 51B—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51M—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L, 51N, 51O, 51P, 51Q, 51R—Crimes Act 1958 (Vic)(opens in a new window).

Producing child abuse material

A person can be charged with this offence if they intentionally produce material, knowing that the material is (or probably is) child abuse material. The material may be produced by filming, printing, photographing, recording, writing, drawing or otherwise generating material. It can also include manipulating or altering material or reproducing or copying material.

See s. 51C—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51M—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L, 51N, 51O, 51P, 51Q, 51R—Crimes Act 1958 (Vic)(opens in a new window).

Distributing child abuse material

A person can be charged with this offence if they intentionally distribute child abuse material. There is no need to identify who the material was distributed to or to prove that a person received the material.

A person can sill be found guilty of this offence if the person distributed the material outside Victoria, as long as the alleged offender spent some or all of the time when the material was distributed. Similarly a person may be captured by this offence even if they are distributing the material from outside Victoria, as long as some of the material was distributed in Victoria.

See s. 51D—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51M—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L, 51P, 51Q, 51R—Crimes Act 1958 (Vic)(opens in a new window).

Administering a website used to deal with child abuse material

A person can be found guilty of this offence if they administer or assist in the administration of a website that is used by another person to deal with child abuse material.

Examples set out in the Act to describe when a person could be caught under these provisions if they:

  • manage membership of a website used by another person to deal with child abuse material and:
    • they intend the website to be used for this purpose, or
    • are aware that the website is being used for people to access child abuse material, or
  • monitor traffic through a website and ensure that the web server hardware and software is running correctly and they are aware that the website is being used by others to download child abuse material.

People can be caught by this offence if the webserver was outside Victoria if the abuse material was accessed from Victoria or if the webserver was in Victoria but was being distributed to audiences outside Victoria.

See s. 51E—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51S—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L—Crimes Act 1958 (Vic)(opens in a new window).

Encouraging use of a website to deal with child abuse material

An adult can be charged with this offence if they encourage someone else to use a website for the purpose of dealing with child abuse material. They must intend that the person will use the website to deal with child abuse material.

People can be caught by this offence if they are outside Victoria and people in Victoria are encouraged to deal with material on the site, or if they are in Vitoria but are encouraging people outside Victoria to deal with martial on that site.

Note this offence only applies to an adult. An adult can also be captured by this offence if they use a child as an agent to encourage others to use the site to deal with child abuse material.

See s. 51F—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See s. 51L—Crimes Act 1958 (Vic)(opens in a new window).

Possession of child abuse material

A person can be found guilty of this offence if they knowingly possess child abuse material. Possession can be found in the case of material that is electronic, if the person controls the access to the material, even if they do not have physical possession of the material.

It is possible for a person to be caught under this provision if they are outside Victoria when they possess the material or if they are in Victoria but the child abuse material is outside Victoria.

The Act sets out examples when a person may possess and control material without having physical possession as when:

  • they have an online storage account for electronic material that is accessible to them via a username and password and they have control of what is stored in that account and have the power to move material around or delete it. They have an electronic folder in the account and they have placed some electronic child abuse material in there.
  • they are given a password for a joint email account shared with people they don't know. They view emails that contain child abuse material and they are able to view, move, delete emails that contain child abuse material. They continue to access the email account to view the images.

Under these circumstances a person may be found guilty of knowingly possessing child abuse material.

See s. 51G—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51M—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L, 51N, 51O, 51P, 51Q, 51R, 51T—Crimes Act 1958 (Vic)(opens in a new window).

Accessing child abuse material

A person can be found guilty of accessing child abuse material if they intentionally access child abuse material, knowing that the material is or probably is child abuse material.

See s. 51H—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions

See ss. 51J, 51K, 51M—Crimes Act 1958 (Vic)(opens in a new window).

Defences

See ss. 51L, 51N, 51O, 51P, 51Q, 51R—Crimes Act 1958 (Vic)(opens in a new window).

Assisting a person to avoid apprehension

A person can be found guilty of this offence if they intentionally give information to another person and intend that that person use the information to avoid, or to reduce the likelihood that they will be apprehended for child abuse material offence.

Examples of behaviour that would be an offence under this section is where a person tells another:

  • how to use a website to deal anonymously with child abuse material
  • how to encrypt electronic material containing child abuse material
  • how to delete electronic material that records information about their identity.

There is no need for the prosecution to prove the identity of the person who is told about these techniques. It is also unnecessary to prove that the information was actually used.

It is possible for a person to be caught under this provision if they are outside Victoria when they possess the material or if they are in Victoria but the child abuse material is outside Victoria.

So for example a person could be found guilty if they publish information on a site telling users how to encrypt electronic material and that site is related to publication of child abuse material.

See s. 51I—Crimes Act 1958 (Vic)(opens in a new window).

Maximum penalties

All of the child abuse related offences carry a maximum penalty of 10 years prison.

See ss. 51B, 51C, 51D, 51E, 51F, 51G, 51H, 51I—Crimes Act 1958 (Vic)(opens in a new window).

Exceptions that apply to children

Historically these Victorian pornography laws were established to protect young people from being sexually exploited by adults, but some young people have been charged with these offences for publishing or sending images.

The law changed on 3 November 2014 to protect young people from being charged under these laws by adding exceptions so that in most cases young people will not be charged with child pornography (now child abuse) offences. After this date young people are more likely to be charged under the 'sexting offences' laws if they distribute an intimate image to third parties or if they threaten to do this.

The laws changed again on 1 July 2017. The exemptions protecting children (involved in non-exploitative conduct such as sexting) from being captured by these offences were restructured as 2 exceptions and a defence.

The exceptions and defences apply to the offences of:

  • involving a child in the production of child abuse material
  • producing child abuse material
  • distributing child abuse material
  • possessing child abuse material, and
  • accessing child abuse material.

Note: For details about defences relating to young people and consensual sex see Sex and young people.

Child taking a photo of themselves

It is not an offence if a child takes a photo of themselves (which would otherwise come within the definition of child abuse material) and stores it on their mobile phone.

The defence (image of oneself) also applies to an adult who has an image of themselves as a child provided that they do not distribute this image to anyone else. This image must not show them committing a jail-able criminal offence.

See ss. 51M(1), 51O—Crimes Act 1958 (Vic)(opens in a new window).

Child depicted is a victim

A child cannot be charged with an offence if they are depicted in an image and they are a victim of a criminal offence punishable by imprisonment, and the image depicts that criminal offence.

For example, if a child is being raped by another person and this is captured on film, the child is not to be charged with a child abuse, related offence.

See s. 51M(2)—Crimes Act 1958 (Vic)(opens in a new window).

Defence

A child can use their age as a defence if the child abuse material is:

  • an image depicting one or more people and does not show an act that is a criminal offence punishable by imprisonment
  • an image that depicts a criminal offence, and
    • the child had a reasonable belief that the image did not depict such a crime, and
  • at the time of the offence the child was not more than 2 years older than the youngest child depicted in the image, or
  • reasonably believed that they were not more than 2 years older than the youngest person in the image.

It does not matter whether the child was depicted in the image or not.

To use this defence the person charged has to prove that they reasonably believe that the act shown in the image is not a jail-able criminal offence. They also bear responsibility for proving that they reasonably believed that the people depicted in the image were not more than 2 years younger than them. These matters must be proven on the balance of probabilities.

If the offence involves the child producing child abuse material, the images apply to the material the child produced.

See ss. 51N(1), 51B—Crimes Act 1958 (Vic)(opens in a new window).

Examples where the defence can be used

A child could use the defence if the image:

  • shows the child taking part in sexual penetration of another child who is not more than 2 years younger than them, or
  • shows a child being sexually penetrated and the child (with the image) reasonably believes that the photo shows two 15-year-olds in a consensual relationship and so is not a criminal offence. The child with the image must also believe that neither child in the photo are not more than 2 years younger than them.

See s. 51N—Crimes Act 1958 (Vic)(opens in a new window).

Defences for adults

Defence if close in age

It is a defence to an offence of:

  • accessing
  • possessing
  • distributing
  • producing, or
  • involving a child in

child abuse material if the person accused is not more than 2 years older than a 16 or 17 year old child who is depicted in the child abuse image. The child depicted must have been over 16 years old when the image was taken. The accused must not have been caring for, supervising or have authority over the child depicted.

The accused must also have had a reasonable belief that the child consented when the image was taken. The image must not depict a jail-able criminal offence.

The image must not have been distributed to anyone other than the person depicted.

The person accused is responsible for proving that they are not more than 2 years older than the person depicted and that they reasonably believed the person consented at the time the image was first created.

See s. 51P—Crimes Act 1958 (Vic)(opens in a new window).

There are also defences that apply if:

  • accused was an adult and the image was of them as a child (no crime and not distributed)
  • the child was married or in a domestic relationship with the accused (or reasonably believed they were)
  • the person is charged with a possession offence and they did not intent to possess and took reasonable steps to cease possession as soon as they realised (example if a person sends a porn shot to a work colleague, colleague deletes the image)
  • the accused has taken reasonable steps to prevent their website being used for child abuse material.

See ss. 51O, 51Q, 51R, 51S, 51T—Crimes Act 1958 (Vic)(opens in a new window)

Criminal record

If a person is found guilty of a child pornography offence under the Crimes Act 1958, the offence will stay on their criminal record for at least 5 years. This will affect the kind of work that they are able to get. For example, it will mean that they cannot get a working with children check.

See Prior offences and failing the check and What information is released?

Sex offender register

The person who is found guilty could also be placed on the Sex offender's register if they are found guilty of child pornography. If this happens they will need to give their details to the police and inform them if they move house or change jobs. They also must inform the police about any social media accounts they have.

This can even happen if the person is under 18, but only if it involved sexting with more than one person or if the sexting took place on more than one day. The court has to be satisfied that the young person poses a risk to the sexual safety of one or more people in the community. Even if they are not placed on the register, the young person may be ordered to report. The reporting periods are halved when the offender is under 18.

See ss. 11, 34, 35—Sex Offenders Registration Act 2004 (Vic)(opens in a new window).

Commonwealth child pornography law

It is an offence under the Commonwealth Criminal Code for a person to access material, send or receive, promote, publish, distribute or transmit or to seek material that is child pornography through a 'carriage service'.

It is also an offence to possess, control, produce, supply or get child pornography material for use through a carriage service.

What is a carriage service?

A carriage service is defined as a way of sending communications by electromagnetic energy. The most common ways of using a carriage service are using a mobile phone or the internet.

Defences

A person may not be held criminally responsible if their conduct is of benefit to the public. Public benefit is defined under the Act relating to law enforcement, approved medical or educational research or developing filtering software.

Maximum penalty

The maximum penalty is 15 years prison.

See ss. 474.19, 474.20, 474.21—Criminal Code Act 1995 (Cth)(opens in a new window).

Prosecution of people under commonwealth law for child pornography offences are not common, particularly if the accused is a young person, however the maximum penalties are very serious. Anyone charged with a pornography offence under the Criminal Code should get legal advice.

More information

Legislation

Crimes Act 1958 (Vic)

  • s. 51A—defines 'child', 'child abuse material' and 'material'
  • s. 51B—involving a child in the production of child abuse material offence
  • s. 51C—producing child abuse material offence
  • s. 51D—distributing child abuse material offence
  • s. 51E—administering a website used to deal with child abuse material offence
  • s. 51F—encouraging use of a website to deal with child abuse material offence
  • s. 51G—possession of child abuse material offence
  • s. 51H—accessing child abuse material offence
  • s. 51I—assisting a person to avoid apprehension offence
  • s. 51J—exception administration of the law
  • s. 51K—exception classification
  • s. 51L—defence of artistic merit or public benefit
  • s. 51M—exceptions applying to children
  • s. 51N—defence applying to children
  • s. 51O—defence - image of oneself
  • s. 51P—not more than 2 years older than 16 or 17-year-old
  • s. 51Q—defence if married or domestic partnership
  • s. 51R—defence if reasonable belief in marriage or domestic partnership
  • s. 51S—defence if reasonable steps to prevent use of a website for child abuse material
  • s. 51T—defence if unsolicited possession

See Crimes Act 1958 (Vic)(opens in a new window).

Sex Offenders Registration Act 2004 (Vic)

  • s. 6—who is a registrable offender?
  • s. 7—what is a registrable offence?
  • s. 11(3)—sex offender registration order
  • s. 34—reporting obligations
  • s. 35—reduced period applies for juvenile registrable offenders
  • Schedule 2—Class 2 offences include (item 16. production of child pornography, item 18 possession of child pornography)

See Sex Offenders Registration Act 2004 (Vic)(opens in a new window)

Criminal Code Act 1995 (Cth)

  • s. 473.1—defines 'child pornography material'
  • s. 474.19—using a carriage service for child pornography material
  • s. 474.20—possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service
  • s. 474.21—defences regarding child pornography material
  • Dictionary—refers to the Telecommunications Act 1997 for definition of a 'carriage service'

See Criminal Code Act 1995 (Cth)(opens in a new window).

Telecommunications Act 1997 (Cth)

  • s. 7—defines a carriage service as ' a service for carrying communications by means of guided and/or unguided electromagnetic energy'

See Telecommunications Act 1997 (Cth)(opens in a new window).

Reference

Department of Justice and Community Safety

The department has produced an introductory manual to help people understand the changes to sexual offences that began on 1 July 2017.

See DJCS—Crimes Amendment (Sexual Offences) Act 2016: An introduction(opens in a new window).

Victoria Legal Aid

See Sexting and child pornography(opens in a new window).

Youth law Australia

This site was developed by the National Children's and Youth Law Centre, an independent not for profit organisation that supports children and young people by informing them about their right to justice.

See 'Sexting' under 'Health, love and sex' via the Victoria tab in Youth law Australia.

Updated