Defences for a Charge of Possessing Child Abuse Material

The production, possession or dissemination of child abuse material is a serious criminal offence under Section 91H of the Crimes Act.

If you are found with anything that is considered to be child abuse material in your possession, you could face a number of penalties – including up to ten years in prison.

What is child abuse material?

Previously known as child pornography, child abuse material is defined as anything that would be considered to be offensive by a reasonable person, and depicts a child or a person implied to be a child:

• As a victim of cruelty, torture or physical abuse.
• Engaged in sexual activity or in a sexual pose even if there is no other person present in the material.
• In the presence of someone else who is engaged in sexual activity or in a sexual pose.
• Depictions of the private parts of someone who is a child or implied to be a child.

Child abuse material can be films or photographs, and the definition also includes images that may not have originally been of children, but have been altered or manipulated to make them look like they depict children.

If the alleged child abuse material is in electronic form, possession is taken to mean possessing the computer that the material is stored on, or having control of the computer files that contain the material.

Are there any other factors which will be taken into consideration?

There are a number of factors that will be considered when deciding whether or not material is considered to be child abuse material. These include:

• Whether the material contravenes the standards of morality and decency that are generally acceptable to reasonable adults.
• Whether the material has any significant literary, artistic, educational or journalistic value.
• What the general character of the material is and whether it is legal, medical or scientific.

If you have been found with material that is alleged to be child abuse material in your possession, and you believe the definition is incorrect, your criminal lawyer will be able to help you present your evidence and potentially get your charges withdrawn or reduced substantially.

What are the defenses to a charge of possessing child abuse material?

If you are facing charges of possession, dissemination or production of child abuse material, there are a few defenses that might apply in your situation.

You can’t be found guilty if you weren’t aware or could be reasonably believed to have suspected that the material was in your possession.

If you can provide evidence that the material came into your possession unintentionally, and you took all reasonable steps to get rid of it as soon as possible, you should not be found guilty.

Other defenses include if the material was obtained for the purposes of justice or the administration of law.

If the material was in your possession for the purpose of the public benefit, this is considered to be a reasonable defense.

If you have been wrongly accused of possessing alleged child abuse material, it is important to speak to a criminal lawyer that is experienced in these types of cases as soon as possible to formulate your defense.

Possession of child abuse material comes with serious penalties, particularly if the charge is dealt with in the district court, so you need to take your case seriously if you want to avoid imprisonment or another serious penalty.