Sexual Act for the Production of Child Abuse Material – Child Under 16

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:

1. You carried out a sexual act with or towards a child under 16 years of age, or you incited the child to carry out a sexual act with or towards you, or you incited a third person to carry out a sexual act with or towards the child, or you incited the child to carry out a sexual act with or towards a third person
2. You did so intentionally, and
3. You knew the act was being filmed to produce child abuse material

‘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:

1. Whether the area of the body involved was the genital area, anal area or, in the case of a female, or a transgender or intersex person identifying as female, the breasts, or
2. Whether the act was for sexual arousal or sexual gratification, or whether any other aspect or circumstance made it sexual

Conduct which may amount to a sexual act includes:

• masturbating in front of the complainant
• inciting the complainant to masturbate
• carrying out a simulated sexual act, or
• inciting the complainant to carry out a simulated sexual act.

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:

1. The private parts of a person who is, or appears to be or is implied to be, a child, or
2. A person who is, or appears to be or is implied to be, a child:

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:

• the standards of morality, decency and propriety accepted by reasonable adults
• the literary, artistic or educational merit (if any) of the material
• the journalistic merit (if any) of the material
• the general character of the material

‘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.