Trading 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 Trading in Child Pornography

The offence of trading in child pornography is contained in section 64A of the Crimes Act 1900 and states that it is an offence if the person produces, publishes, offers or sells child exploitation material.

The maximum penalty for this offence is 1,200 penalty units, imprisonment for 12 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.

What Actions Might Constitute Trading in Child Pornography?

Examples of what would constitute trading in child pornography:-

  • You take a photo of a 10 year old boy lying naked on his back on his bed, where his genitals are visible and give it to your partner for his sexual arousal.
  • You offer to your brother a pornographic videotape that you own, depicting two adults having consensual sex while an 8 year old girl looks on.
  • You draw a picture of two children performing oral sex on one another and publish it in the school magazine.
  • You sell to your friend 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 have been exchanging text messages for a while now and the texts are flirtatious. You take a photo of your penis and send it to her.

Examples of what would NOT constitute trading in child pornography:-

  • You give to your husband a photograph of your child, aged 5, running around naked under the sprinklers.
  • You are a newborn baby photographer. You sell a photo of a naked baby girl with a tiara on her head, curled up on a large, fluffy rug.

What the Police Must Prove

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

  • That you produced, published, offered or sold material; and
  • That material was child exploitation material.

Possible Defences for Trading in Child Pornography

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

  • To maintain your innocence if you did not commit the offence; or
  • To argue that the material was not produced, published, offered or sold by you; or
  • To argue that the material 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.

Which Court Will Hear Your Matter?

An offence under section 64A 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.

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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