The recent released film The Artifice Girl depicts the use of a fictitious child generated by artificial intelligence (AI) to lure and trap online child sexual predators.
Whilst many features of the film are purely science fiction, police in Australia will often pretend to be children online in order to identity and prosecute child sex offenders.
And although law enforcement agencies in other nations are already using AI images in to identify and prosecute those who commit child sexual offences, there is currently no information about whether this is also occurring in Australia.
But would the use of artificial intelligence in this way be lawful here in New South Wales? Specifically, can a person be guilty of grooming or procuring a child that doesn’t even exist?
Here’s an outline of applicable laws.
What is the offence of online grooming?
Fictitious children are often created by police in order to target online groomers.
Section 66EB of the Crimes Act 1900 (NSW) outlines a number of offences relating to the procuring or grooming of children under 16 years old for unlawful sexual activity.
“Unlawful sexual activity” refers to the various offences under the Act related to child sexual abuse.
Section 66EB(2) outlines the offence of “procuring” where an adult intentionally procures a child for unlawful sexual activity. This offence carries a maximum penalty of either 15 years imprisonment (if the child is under 14 years) or 12 years imprisonment (in any other case).
‘Procure’ means to encourage, entice, recruit or induce, whether by threats, promises or otherwise.
Section 66EB(2A) outlines an offence of “grooming” which applies when an adult:
- Intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and
- Does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person.
“Groomed for sexual purposes” is defined as being engaged in conduct exposing the child to “indecent material”. What constitutes “indecent material” isn’t defined in the Act, but generally refers to sexual material of some sort, whether messages or imagery.
This offence carries a maximum penalty of either 15 years imprisonment (if the child is under 14 years) or 12 years imprisonment (in any other case).
A further grooming offence is outlined in s 66EB(3) of the Act which applies when an adult:
- Engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance (such as drugs or alcohol) or with any financial or other material benefit, and
- Does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person.
This offence carries a maximum penalty of either 12 years imprisonment (if the child is under 14 years) or 10 years imprisonment (in any other case).
Can You “Procure” or “Groom” a Child That Doesn’t Exist?
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.
Child Abuse Material and Online Conversations
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.
Are Police Using AI Generated Children?
Whilst there is no evidence that Australian police are currently using AI generated imagery of children in order to capture online predators, this tactic is being used in other countries.
German police are currently utilising CGI generated child abuse material in order to lure in offenders. This has generated a lot of ethical debate in the country about whether police are unintentionally incentivising offending.
In 2013, the Dutch children’s charity Terre des Hommes carried out a 10-week sting operation utilising a computer generated child named “Sweetie”, who looked like a 10 year old Filipino girl. One thousand men were caught trying to pay for explicit images of the girl when her images were placed online.
How the Australian criminal law would respond to these types of operations, should they occur here, is yet to be determined.