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Sexual act for the production of child abuse material – child under 16 is an offence under section 66DF of the Crimes Act 1900, which carries a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
‘Sexual act’ is defined as:
Any act, other than sexual touching, carried out in circumstances where a reasonable person would consider it to be sexual.
Matters considered when deciding whether an act is sexual include:
Conduct which may amount to a sexual act includes:
An act is not sexual if carried out for a genuine medical or hygienic purpose.
‘Child abuse material’ is that which depicts or describes in a way that reasonable persons would regard as being offensive:
As a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.
In determining whether material is offensive to a reasonable person, the following matters must be taken into account:
‘Private parts’ is defined as:
The genital or anal area, whether bare or covered by underwear, or the breasts of a female, or transgender or intersex person identifying as female, whether or not the breasts are developed.
Duress is a defence to the charge.
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