Using a Child for Production of Child Pornography

Child pornography is often referred to as child porn or kiddy porn (sometimes spelt “kiddie porn”). There are a number of ACT offences relating to having possession or control of child pornography, trading in child pornography (including producing, publishing, offering or selling child pornography), 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 pornography outside Australia (including possessing, controlling, producing, distributing or obtaining child pornography material outside Australia) and using a carriage service for child pornography material (including accessing, transmitting, making available, publishing, distributing, advertising, promoting and soliciting child pornography material.

The penalties vary depending on the offence, and range from a maximum penalty of 700 penalty units and/or 7 years’ imprisonment for possessing child pornography, to 25 years’ imprisonment for possessing, controlling, producing, distributing and obtaining child pornography outside Australia on 3 or more occasions involving 2 or more people.

What Is Child Pornography?

Child pornography 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 Using A Child for Production of Child Pornography

The offence of using a child for production of child pornography is contained in section 64 of the Crimes Act 1900 which is broken down into two sub-sections; one for a child who is under the age of 16 years but over the age of 12 years, and one for a child who is under the age of 12 years.

Section 64(2) of the Crimes Act 1900 states that it is an offence if:-

• The person uses, offers or procures a child:-
  • For the production of child exploitation material; or
  • For a pornographic performance; and

• The child is 12 years old or older.

The maximum penalty for this offence is 1,000 penalty units, imprisonment for 10 years, or both.

Section 64(1) of the Crimes Act 1900 states that it is an offence if:-

• The person uses, offers or procures a child:-
  • For the production of child exploitation material; or
  • For a pornographic performance; and

• The child is under 12 years old.

The maximum penalty for this offence is 1,500 penalty units, imprisonment for 15 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.

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 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.

What Actions Might Constitute Using A Child for Production of Child Pornography?

Examples of what would constitute using a child for production of child pornography:-

• You have some of the boys around to your house and everyone is getting drunk. You offer your 15 year old cousin who is staying with you from France to do a striptease for them while someone films it.
• You are a teacher at a school. You tell one of your students that you will not fail him if he performs oral sex on you. He agrees and you film the act on your phone which is sitting on the whiteboard.
• Your daughter has some friends around one weekend for a sleepover. You get one of the girls alone and ask her to lie on the bed and touch herself while you watch.

Examples of what would NOT constitute using a child for production of child pornography:-

• You offer your newborn baby to a photographer to take photos of her, including photos of her naked with just a beanie on her head, and photos of you bathing her, to capture memories of her early days.

What the Police Must Prove

To convict you of an offence under section 64 of the Crimes Act 1900, the prosecution must prove each of the following matters beyond a reasonable doubt:-

• That you used, offered or procured a child for the production of child exploitation material; or
• That you used, offered or procured a child for a pornographic performance.

Possible Defences for Using A Child for Production of Child Pornography

The common ways to defend a charge under section 64 of the Crimes Act 1900 are:

• To argue that the reason you used, offered or procured a child was not to produce child exploitation material or a pornographic performance; or
• To argue that the material produced was not child exploitation material, for example because it was not substantially for the sexual arousal or sexual gratification of someone other than the child.

Which Court Will Hear Your Matter?

An offence under section 64(2) of the Crimes Act 1900 may be dealt with by the ACT Magistrates Court or the ACT Supreme Court, depending what you elect. However, an offence under section 64(1) of the Crimes Act 1900 is strictly indictable 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.