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CRIMES ACT 1958 - SECT 51R

Defence—reasonable belief in marriage or domestic partnership

    (1)     It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

        (a)     the child abuse material is an image; and

        (b)     the image is child abuse material because of its depiction of another person (B); and

        (c)     the image does not depict a criminal offence punishable by imprisonment; and

        (d)     A does not distribute the image to any person other than B; and

        (e)     at the time at which the image was first made, A reasonably believed that—

              (i)     B was 16 or 17 years of age; and

              (ii)     either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

              (iii)     where A was B's domestic partner, if B was under A's care, supervision or authority, the domestic partnership commenced before B came under A's care, supervision or authority; and

        (f)     at the time of the conduct constituting the offence, A reasonably believed that—

              (i)     either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

              (ii)     B consented to that conduct.

    (2)     In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

    (3)     For the purposes of subsection (1)(e), the reference to the time at which the image was first made does not include a reference to any later time at which a copy, reproduction or alteration of the image is made.

    (4)     A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(e) and (f).

Notes

1     References to A and B in this section are references to the same A and B referred to in sections 51B, 51C, 51D, 51G and 51H.

2     An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c) and (d).

3     See section 36 for the meaning of consent.

S. 51S inserted by No. 47/2016 s. 16.



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