Using the Internet to Deprave Children


The reach and prominence of the Internet and other technology in today’s society has seen the development of many laws to regulate what can be transmitted and watched, and by whom. The Internet and other electronic means can be used in the commission of sex offences, including depraving children.

In the ACT, it is an offence to use electronic means, including the Internet, to deprave children. This offence covers the use of an electronic device to suggest sexual acts to a child or to provide pornographic material to them. The maximum penalty for these offences range from 7 years to 10 years imprisonment, depending on the offence, and depending whether it is a first offence or a subsequent offence.

The Offence of Using the Internet to Deprave Children

The offences of using the Internet to deprave children are contained in section 66 of the Crimes Act 1900. These offences are not restricted to using the Internet specifically, as ‘using electronic means’ means using email, Internet chat rooms, SMS messages and real time audio/video. This is contained in section 66(6) of the Crimes Act 1900.

This provision is separated into two subsections; broadly, one for using electronic means to make suggestions of a sexual act, and one for using electronic means to provide pornographic material to a child.

For the purposes of these offences, a child or ‘young person’ is anyone under the age of 16 years. This is specified in section 66(6) of the Crimes Act 1900.

The offence of using an electronic means to make suggestions to a young person about a sexual act is contained in section 66(1) of the Crimes Act 1900, which states that the accused commits an offence if they use electronic means to do any of the following:

  • Suggest to a young person that the young person commit an act of a sexual nature.
  • Suggest to a young person that the young person take part in an act of a sexual nature.
  • Suggest to a young person that the young person watch someone else committing an act of a sexual nature.
  • Suggest to a young person that the young person watch someone else taking part in an act of a sexual nature.

For the purpose of this offence, an ‘act of a sexual nature’ means sexual intercourse or an act of indecency. The definition is contained in section 66(6) of the Crimes Act 1900.

For a first offence, this carries a maximum penalty of imprisonment for 7 years. For a second or subsequent offence, this carries a maximum penalty of imprisonment for 10 years.

The offence of using an electronic means to provide pornographic material to a young person is contained in section 66(2) of the Crimes Act 1900 which states that a person must not use electronic means to do either of the following:

  • Send pornographic material to a young person.
  • Make pornographic material available to a young person.

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

For the purpose of this offence, ‘pornographic material’ means material of a sexual nature that has been, or is likely to be, classified R 18+, RC, category 1 restricted, category 2 restricted or X 18+. This definition is contained in section 66(6) of the Crimes Act 1900.

It is important to note that for an offence under section 66(1) or 66(2), it is irrelevant whether the young person consented. A person will still have committed an offence even if the young person consented to the suggestion being made or the material being sent or made available. This is specified in section 66(4) of the Crimes Act 1900.

However, it is a defence to section 66(1) and section 66(2) of the Crimes Act 1900 if the accused can prove that they believed on reasonable grounds that the complainant was at least 16 years old. This defence is contained in section 66(5) of the Crimes Act 1900.

It is also a defence to section 66(2) of the Crimes Act 1900 if the accused can prove:

  • That they are an Internet service provider; and
  • That they had no knowledge that their facilities were used to commit the offence.

This defence is contained in section 66(3) of the Crimes Act 1900.

What Actions Might Constitute Using the Internet To Deprave Children?

Examples of what would constitute using the Internet to deprave children:

  • You have been exchanging SMS messages with a 15 year old boy. You send him a photo of you and your friend kissing and suggest that he come over to join you in a threesome. He is thrilled with this idea. Nevertheless, you would be guilty of an offence under section 66(1) of the Crimes Act 1900 as it is irrelevant whether he consented to the suggestion.
  • Your cousin asks you to send her some porn. You oblige, and email to her a link to a pornographic movie stored in your Dropbox account. You would be guilty of an offence under section 66(2) of the Crimes Act 1900 irrespective of whether or not she consented by asking for it, as you have made pornographic material available to a young person and consent is not a defence.

Examples of what would NOT constitute using the Internet to deprave children:

  • You have been speaking with a 15 year old boy in an Internet chat room, however his profile says that he is 17 years old and he told you 2 months ago that he had just had his 17th birthday. You suggest that he come to the house party you are at as there are people having sex in the next room and you think he would enjoy watching it with you. In this instance, you would not be guilty of an offence under section 66(1) of the Crimes Act 1900 as you reasonably believed that he was over the age of 16 years.

What the Prosecution Must Prove

To convict you of an offence under section 66(1) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you used an electronic means; and
  • That by using the electronic means you made a suggestion that:
    • The person commit an act; or
    • The person take part in an act; or
    • The person watch someone else committing an act; or
    • The person watch someone else taking part in an act; and
  • The act subject of the suggestion was an act of a sexual nature; and
  • The person to whom the suggestion was made was a young person.

To convict you of an offence under section 66(2) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you used an electronic means; and
  • That by using the electronic means you either:
    • Sent material to a person; or
    • Made material available to a person; and
  • The material sent or made available was pornographic material; and
  • The person to whom the material was sent or made available was a young person.

Possible Defences For Using The Internet To Deprave Children

The common ways to defend a charge under section 66(1) of the Crimes Act 1900 are:

  • To maintain your innocence if you did not commit the offence; or
  • To argue that the act subject of the suggestion did not constitute an act of a sexual nature; or
  • To argue that you believed on reasonable grounds that the person was over the age of 16 years.

The common ways to defend a charge under section 66(2) of the Crimes Act 1900 are:

  • To maintain your innocence if you did not commit the offence; or
  • To argue that the material you sent or made available was not pornographic material;
  • To argue that you believed on reasonable grounds that the person was over the age of 16 years.

Which Court Will Hear Your Matter?

An offence under section 66(2) or a first offence under section 66(1) can be dealt with in the ACT Magistrates Court or ACT Supreme Court, depending what you elect. However, a second or subsequent offence under section 66(1) of the Crimes Act 1900 is a strictly indictable offence and must be dealt with in the ACT Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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