Possession of Child Pornography

What is often referred to as child pornography is known at law as child exploitation material. There are a number of ACT offences relating to having possession or control of child exploitation material , trading in child exploitation material (including producing, publishing, offering or selling child exploitation material), and using, offering or procuring a child either for a pornographic performance or to produce child exploitation material. There are also a number of Commonwealth offences relating to child exploitation material outside Australia (including possessing, controlling, producing, distributing or obtaining child abuse material outside Australia) and using a carriage service for child exploitation material (including accessing, transmitting, making available, publishing, distributing, advertising, promoting and soliciting child exploitation material.

The penalties vary depending on the offence, and range from a maximum penalty of penalty units and/or 7 years’ imprisonment for possessing child exploitation material, to 25 years imprisonment for possessing, controlling, producing, distributing and obtaining child pornography outside Australia on 3 or more occasions involving two or more people.

What is child abuse material?

Child abuse material offences criminalise conduct relating to child exploitation material and pornographic performances involving children.

Specifically, section 64(5) of the Crimes Act 1900 defines “child exploitation material” as anything that represents either:-

The sexual parts of a child; or
A child engaged in an activity of a sexual nature; or
Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

It is worthwhile noting that the word “represent” is defined in section 64(5) of the Crimes Act 1900 as “depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.” This extends what is considered child pornography well beyond just photographs and videos.

Section 64(5) of the Crimes Act 1900 further defines “pornographic performance” as:-

A performance by a child engaged in an activity of a sexual nature; or
A performance by someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

The offence of possessing child exploitation material

The offence of possessing child exploitation material is contained in section 65 of the Crimes Act 1900 and states that it is an offence if:

The person intentionally possesses pornography; and
The pornography is child exploitation material.

The maximum penalty for this offence is 700 penalty units, imprisonment for 7 years, or both.

For the purpose of this offence, “child exploitation material” is anything that represents either:-

The sexual parts of a child; or
A child engaged in an activity of a sexual nature; or
Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child. This definition is contained in section 64(5) of the Crimes Act 1900.

However, it is a defence to section 65 of the Crimes Act 1900 if the accused can prove that they had no reasonable grounds to suspect that the pornography concerned was child pornography. This defence is contained in section 65(3) of the Crimes Act 1900.

What actions might constitute possessing child exploitation material?

Examples of what would constitute possessing child pornography:-

You downloaded from the internet a photograph of an unknown 10 year old boy lying naked on his back on his bed, where his genitals are visible.
You own a pornographic videotape depicting two adults having consensual sex while an 8 year old girl looks on.
You have a drawing of two children performing oral sex on one another.
You own a computer game which, at one stage, shows graphics of a woman doing a striptease for a 12 year old boy.
You are 15 years old and there is a girl you like at your high school who is the same age as you. You been exchanging text messages for a while now and the texts are flirtatious. She sends you a photo of her naked breasts.

Examples of what would NOT constitute possessing child pornography:-

You have a photograph of your own child, aged 5, running around naked under the sprinklers.
A website promoting child pornography sent you an email depicting two children engaging in oral sex. This email went straight to your ‘junk mail’ folder and you were unaware of its existence.

What must be proven

To convict you of an offence under section 65 of the Crimes Act 1900, the prosecution must prove each of the following matters beyond a reasonable doubt:

That you possessed pornography;
That the possession was intentional; and
That the pornography possessed was child exploitation material.

Possible defences for possessing child exploitation

The common ways to defend a charge under section 65 of the Crimes Act 1900 are:-

To maintain your innocence if you did not commit the offence; or
To argue that the pornography was not child exploitation material, for example that it was not substantially for the sexual arousal or sexual gratification of someone other than the child; or
To argue that you did not intentionally possess the child pornography.