AI Generated Images Are Being Used To Catch Online Sexual Predators

Under the Law Enforcement (Controlled Operations) Act 1997, NSW Police can undertake approved “undercover” operations for the purposes of obtaining evidence of criminal activity.

This can include pretending to be a child and engaging in explicit conversations online in order to gather evidence to charge and prosecuted potential offenders.

Section 16 of the Act states that any activity that is authorised to be carried out as part of an operation “does not constitute an offence or corrupt conduct.” This is important as engaging in paedophilic fantasies online could constitute the offence of producing child abuse material (see below).

Once authorised, police officers will engage in conversations with suspects under the guise of being a minor. Should a suspect make attempts to meet the fictitious child following acts of grooming or procurement, they may be arrested and charged with a relevant offence.

Section 66EB(5) of the Crimes Act 1900 states that for grooming and procurement offences any reference a child “includes a reference to a person who pretends to be a child if the accused believed that the person was a child”.

Unlike in the United States, there is no formal defence of entrapment in Australia. 

Engaging in sexual explicit conversations online that describe actual sexual activity with minors could also constitute the production, access or possession of child abuse material.

At a State level, under section 91H of the Crimes Act 1900 (NSW) it is an offence to produce, disseminate or possess child abuse material. This offence carries a maximum penalty of 10 years imprisonment.

“Child abuse material” is material that depicts:

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child.

The Criminal Code Act 1995 (Cth), which applies throughout Australia, also contains several offences prohibiting the production, distribution and accessing of material that sexualises children.

Under section 474.22 of the Code, it is a criminal offence to use a carriage service, such as the internet, to:

• Access child abuse material;
• Cause child abuse material to be transmitted;
• Transmit, make available, publish, distribute, advertises or promote child abuse material; or
• Solicit child abuse material.

There is a further offence under s474.22A of the Code regarding the possession or control of child abuse material via a carriage service, which applies whether a person intended to access the material or not.

Section 471.19 prohibits the use of a postal or similar service for child abuse material, while section 471.20 prohibits possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service.

Each of these offences carries a maximum penalty of 15 years imprisonment.

As described in detail in other blogs, written text can constitute child abuse material under both State and Federal criminal laws. No actual child is required for these offences to be made out.