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Involving a Child in the Production of Child Abuse Material

– section 51B of the Crimes Act 1958
Child Holding Teddy BearIn the Crimes Act the definition of ‘child abuse material’ has two levels. The first is that it must be material that depicts or describes a person who is an actual child or who appears to be a child. Further to that, in the material that person is depicted as a victim of torture, experiencing cruelty or physical abuse. The term also applies if the activity is sexualised in any way. The second stage is that a reasonable person would find the material offensive in the circumstances.Section 51B applies when a person is alleged to have involved a child or someone they ought to have known is a child in the production of child abuse material as described above.

Examples of Involving a Child in the Production of Child Abuse Material
  • Police pull over a suspicious car and find that there is child that is unknown to the driver in the car. They also discover hidden cameras in the car.
  • A person’s films sexualised videos of their own children at the request of a person on an internet chat room.
  • A person is discovered to be grooming a child by concealing their identity. Police discover it through IP address identification. They execute a search warrant and discover home-made child abuse material.
What are some of the possible defences to Involving a Child in the Production of Child Abuse Material

Defences that are often run in relation to these charges are primarily factual and identification disputes, honest and reasonable mistake of belief, and also mental impairment. Other defences may also be considered depending on other circumstances surrounding the case.

Our client was charged with possess and make child pornography. He was accused taking photos of his daughter bathing by his partner while they were going through a separation. On appeal in the County Court our client was found not guilty as the Judge decided his partner had motive to lie and was not a credible witness.

Questions in cases like this
  • Would a reasonable person find the material offensive in the circumstances?
  • Was there a legitimate reason for engaging with a child, such as a project with artistic merit?
  • Was there a child involved and was it child abuse material?
Penalty and court that deals with this charge

Imprisonment
If proven guilty, an accused may be sentenced to level 5 imprisonment (10 years maximum). This matter would be heard in the Supreme Court.

What is the legal definition of Involving a Child in the Production of Child Abuse Material?

Involving a Child in the Production of Child Abuse Material

  1. A person (A) commits an offence if—
    1. A intentionally involves another person (B) in the production of material; and
    2. B is a child; and
    3. A knows that B is, or probably is, a child; and
    4. the material is child abuse material; and
    5. A knows that the material is, or probably is, child abuse material.
  2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
  3. For the purposes of subsection (1), the ways in which A involves B in the production of material may include—
    1. inviting or encouraging B to be involved, or offering B to be involved, in the production of the material; or
    2. causing or allowing B to be involved in the production of the material; or
    3. using B in the production of the material.

Notes

  1. B need not be described or depicted in the material.
  2. Exceptions apply to this offence—see sections 51J, 51K and 51M.
  3. Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q and 51R.
  4. A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.
“Have you been accused of involving a child in the production of child abuse material?”
Legislation

This offence is governed by section 51B of the Crimes Act 1958.

Elements of the offence

For this charge to be proven the following elements must be clearly established before the court:

  • the accused intentionally involved a person in the production of a material
  • the person was a child
  • the accused knew that the person was, or probably was, a child
  • the material was a child abuse material
  • the accused knew that the material was, or probably was, a child abuse material

Failure to prove any of these elements will mean that the accused is not guilty of the charge.
 
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Media

*This offence used to be known as “Procurement etc. of Minor for Child Pornography“.