Sexual Penetration Or Indecent Assault Of A Child Under The Age Of 16
It is an offence to sexually penetrate or commit an indecent act a child under the age of 16. This is so regardless of whether or not the child has given consent. It is a defence to the charge if the accused was no more than 2 years older than the child, or can satisfy the Court that he or she believed on reasonable grounds that the child was over 16.
A person must not sexually penetrate or commit and indecent act with a child aged 16 or 17 where the child is under that person’s care, supervision or authority. Once again, consent is not a defence to this charge.
A person over the age of 18 must not communicate with a child under the age of 16 with the intention of facilitating that child for involvement in a sexual offence with themselves or another person.
If the sexual activity with the child were carried out, and this act would not be a sexual offence (eg sexual penetration of a child under the age of 16), then the accused is not taken to have committed this offence.
It is irrelevant where the communications originated from if the child is located in Victoria at the time the communications were made. It is also irrelevant that the child is outside of Victoria if the communications were made from within Victoria.
Child Pornography / Child Exploitation Material
Child pornography is defined as a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context. It can include a fictitious account which describes conduct constituting child pornography.
It is an offence to print or produce child pornography. To be convicted of this offence it must be proved that the production of the film, photograph or publication was deliberate and intentional.
It is also an offence for a person to knowingly possess child pornography. In these circumstances it must be proven that the person in the production was or appeared to be a minor, and that person was depicted engaging in sexual activity or an indecent sexual manner or context.
Selfies & Sexting
There are a number of exceptions under the legislation that mean in certain circumstances a person will not be charged with child pornography offences where production is an image. They include:
- Where a person under 18 is themselves depicted in the image in question (eg a naked selfie)
- Where the image depicts a non-criminal sexual act between persons, one of whom is under 18 and where the accused is not more than 2 years older than the youngest minor
- Where the accused is the victim of a criminal offence
- Where the accused is a minor who produces (or shares) an image of a person who is under 18 and the accused in not more than 2 years older than the person depicted (commonly applicable in ‘sexting’ cases)
Legislative amendments introduced on 1 July 2015 provide protection for minors who produce, procure or possess images of themselves or their peers that would otherwise breach child pornography offences. These protection only apply where the behaviour is not exploitative.