Possessing or distributing Child Exploitation Material

Queensland’s law on child pornography basically comprises the provisions of the Criminal Code, as amended by the Criminal Code (Child Pornography and Abuse) Amendment Act 2005.

Section 207A defines child exploitation material as any material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years;

1. in a sexual context, including for example, engaging in a sexual activity; or
2. in an offensive or demeaning context; or
3. being subjected to abuse, cruelty or torture.

“Material” is defined to include “data from which text, images or sound can be generated.

One important element in this definition is the requirement that the child exploitation material should cause offense to a reasonable adult.     Given the broadness of the main provision, which treats materials which are of sexual nature and which are not  on the same footing, this “offensiveness” test rules out all the “innocent cases” such as family photos that depict children bathing or crying. It ensures that a person is not convicted of an offence related to child exploitation material, unless the material in question is in fact offensive and blameworthy.

The child in this context is a person under the age 16.  However, it is not a defence to say that the person who is depicted in the material in question is not an underage child or a real person at all. The relevant part of the section states “…describes or depicts someone who is, or apparently is, a child under 16 years.” Therefore, the argument that  the pornography which does not depicts real underage children,  such as ones in which adults act as teenagers and cartoons or video games that do not depict a real person at all (virtual porn),  should be tolerated, finds no place in Queensland law.

The penalties for the various offences are;

1. involving a child in the making of child exploitation material (maximum penalty 10 years imprisonment)
2. making child exploitation material (maximum penalty 10 years imprisonment )
3. distributing  child exploitation material (maximum penalty 10 years imprisonment)
4. knowingly in possession of child exploitation material (maximum penalty five years imprisonment)

Section 228C of the Criminal Code makes it illegal to distribute child exploitation material.

The term “distributing” is broadly defined to include the following acts;

(a) Communicating, exhibiting, sending, supplying or transmitting child exploitation material

(b) Making child exploitation material available for access by someone

(c) Entering into an agreement or arrangement to do something in   (a) or (b); and

(d) Attempt to distribute child exploitation material.

The prosecution must show in court that  the defendant did one or more of the acts mentioned in this section and therefore there is a “distributing.”   An attempt to do any of such acts also amounts to a “distributing” according to (c) and (d). It is not relevant whether a particular person is addressed or not in the committing of the offence.

In the case of possession, the persecution must prove that the defendant did possess the materiel and that he did it knowingly; the question is whether he had the intention to possess the material in question, which he knew to be illegal.

Possible defences available to the defendant are included in 228E of the Criminal Code and include

• If it can be proved that the  purpose of the distribution or the possession of the materiel in question is  genuinely artistic, educational, legal, medical, scientific or  is the public benefit, provided that the defendant’s conduct was, in the circumstances, reasonable for that purpose.  The public benefit purpose is further explained by an illustration; a current affairs television program showing children being tortured during a civil war.

• Where a classification exemption has been given to an entity for the material that is alleged to be child exploitation material,  if it can proved that the person distributed or possessed the material;

1. Exactly for a purpose for which the exemption was given; and
2. In a way that is consistent with the exemption, including any conditions imposed on the exemption.

Maintaining A Sexual Relationship With A Child

Maintaining an unlawful sexual relationship with a child is an indictable crime under Section 229B of the Criminal Code.  Each of the following elements must be proved beyond reasonable doubt by the prosecution.

 1.    The defendant must be an adult, namely a person of or over the age of 18 years.

The relevant section of the Criminal Code states “Any adult who maintains an unlawful sexual relationship with a child under prescribed ages commits a crime.” An Adult in this context must be understood as a person of or over the age 18 years as opposed to a child.

 2.    The complainant was a child under the prescribed age.

The prescribed age under Section 229B (10) is 16 years unless the unlawful sexual relationship involves acts which constitute or would constitute if they were particularized, acts of sodomy in terms of Section 208. The prescribed age in such a situation is 18 years.

 3.    The defendant did an act defined as an offence of a sexual nature in relation to the child on three or more occasions.

Offences of sexual nature in terms of Section 229B (10) are, unlawful sodomy (Section 208), indecent treatment to a child (Section 210 other than section 210(1) (e) and (f)), carnal knowledge of or with children (Section 215), insect (Section 222), rape (Section 349), attempted rape (Section 350), and sexual assaults (Section 352). However, it is not necessary that the particulars of any such unlawful sexual act should be presented to the court as if the act were charged as a separate offence.  For instance, the dates or the exact circumstances of those occasions need not be disclosed in evidence.  All the members of the jury need not be satisfied about the same unlawful sexual acts.  The prosecution may decide either to plead in the indictment these acts as three substantive offences or to proceed with the offence of maintaining the relationship.

 4.    An unlawful relationship of a sexual nature has been maintained.

The question whether the offence is simply established on proof of the three or more occasions of unlawful sexual acts or whether there must be   some habitually or continuity in the sexual conduct has judicially been considered.  Particular difficulties may arise in extreme cases, such as where the three acts in question occur in the same day or in three different occasions with gaps of several years in between. In Kemp (No 2) [1998] 2 Qd R 510, Mackenzie J stated that the offense combines the requirements of proving some degree of habitually or maintaining a sexual relationship and of proving three acts constituting an offence of a sexual nature during the period of alleged relationship and that both those elements must be proved beyond reasonable doubt.  “Maintain” here means “to continue, to carry on” or “keep up”.

5.    The relationship of a sexual nature was unlawful.

The word “unlawful” is given its ordinary meaning that it is not justified authorized or excused by law.

To avert the criminal liability, the alleged person will have to show that any of the elements which the prosecution has established is either not true or doubtful.  He can further make use of the defences set out in the Criminal code.  One of the defences available to the defendant is to show that  the accused believed on reasonable grounds that the child was at least the prescribed age, if the child was at least twelve years of age when the crime was committed.

Cases involving this offence are heard before the District Court since they are extremely serious criminal matters.  The maximum sentence is life imprisonment which clearly indicates the severity of the offence.