Child pornography

It is an offence in Victoria to possess films, pictures, or computer games that depict someone who is or appears to be a minor in an indecent manner

Possession of child pornography is a crime in Victoria. This article explains that offence.

The offence

Possession of child pornography is an indictable offence in Victoria. The prosecution need to prove two things:

• that accused possessed a thing
• that thing meets the definition of child pornography

The accused possesses something if the accused has it on his or her person or exercises control over it.

The offence is punishable by a 5 year maximum term of imprisonment.

Definition of child pornography

Victorian law defines “child pornography” as a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context. A minor is a person under the age of 18. “Photographs” include digital images and copies or reproductions of images.

By itself, nudity does not usually meet that definition. Nudity combined with an “indecent” pose does meet that definition. While the definition of “indecent” is not always clear, any pose that calls attention to the genital region or that appears to depict sexual touching will probably be regarded as indecent.

Sexting

News reports suggest the popularity among younger people of “sexting,” or sending text messages that include nude images of themselves or each other. If those images depict a minor in an “indecent sexual manner,” they could be considered child pornography.

If a minor takes indecent “selfies” (images of yourself) and keeps them, current law in Victoria exempts the minor from prosecution for the offence of possessing child pornography. Anyone else who possesses those images can be prosecuted. A minor who sends those images to anyone else could be prosecuted for distributing child pornography.

Defences to the charge

It is not an offence to possess a film, a photograph contained in a publication, or a computer game that:

• was classified other than RC or X or X 18+; or
• would, if classified, be classified other than RC or X or X 18+; or
• has genuine artistic merit (unless the minor was actually under the age of 18); or
• is for a genuine medical, legal, scientific or educational purpose.

It is not an offense to possess child pornography if:

• the accused reasonably believed that the minor was at least 18 years old; or
• the accused is married to the minor; or
• the accused took the photograph or film or was given the photograph or film by the minor and the accused was not more than 2 years older than the minor was or appeared to be; or
• the accused is the minor, or one of the minors, in the photograph or film.

A lawyer can help you decide whether any of these defences, or other defences, can be raised if you are charged with possessing child pornography.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.