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CRIMES AMENDMENT (SEXUAL OFFENCES AND OTHER MATTERS) ACT 2014 (NO. 74 OF 2014) - SECT 8

New section 70AAA inserted

After section 70 of the Crimes Act 1958 insert

        " 70AAA     Exceptions to child pornography offences

    (1)     Sections 68, 69 and 70 do not apply to a minor (A) if—

        (a)     the child pornography is an image; and

        (b)     the image depicts A alone or with an adult; and

        (c)     the image is child pornography because of its depiction of A.

    (2)     Sections 68, 69 and 70 do not apply to a minor (A) if—

        (a)     the child pornography is an image; and

        (b)     the image depicts A with another minor; and

        (c)     the image is child pornography because of its depiction of A or another minor; and

        (d)     where the image is child pornography because of its depiction of a minor other than A, at the time at which the offence is alleged to have been committed—

              (i)     A     is not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; or

              (ii)     A believes on reasonable grounds that they are not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; and

        (e)     the image does not depict an act that is a criminal offence punishable by imprisonment.

Example

The image depicts the minor (A) taking part in an act of sexual penetration with another minor who is not more than 2 years younger. Both are consenting to the act. The offences in sections 68, 69 and 70 do not apply to A in respect of the image.

    (3)     Sections 68, 69 and 70 do not apply to a minor (A) if—

        (a)     the child pornography is an image; and

        (b)     the image depicts A alone or with another person; and

        (c)     the image depicts an act that is a criminal offence; and

        (d)     A is a victim of that offence.

Example

The image depicts the minor (A) being raped by another person. The offences in sections 68, 69 and 70 do not apply to A in respect of the image.
s. 8

    (4)     Sections 68, 69 and 70 do not apply to a minor (A) if—

        (a)     the child pornography is an image; and

        (b)     the image does not depict A; and

        (c)     the image—

              (i)     does not depict an act that is a criminal offence punishable by imprisonment; or

              (ii)     depicts an act that is a criminal offence punishable by imprisonment but A believes on reasonable grounds that it does not; and

        (d)     at the time at which the offence is alleged to have been committed—

              (i)     A is not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; or

              (ii)     A believes on reasonable grounds that they are not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography.

Example

The image depicts a minor being sexually penetrated. A believes on reasonable grounds that they are not more than 2 years older than the minor is at the time at which the image is produced. The offences in sections 68, 69 and 70 do not apply to A in respect of the image.

    (5)     In subsection (4)—

        (a)     a reference to the age of the youngest minor whose depiction in the image makes it child pornography is—

              (i)     in relation to an offence against section 68 or 70—a reference to the age of that minor at the time at which the image was made or produced;

              (ii)     in relation to an offence against section 69—a reference to the age of that minor at the time at which the minor was invited, procured, caused or offered to be in any way concerned in the making or production of the image; and

        (b)     a reference to the image, in relation to an offence against section 69, is a reference to the image that A invites, procures, causes or offers the minor to be in any way concerned in its making or production.

    (6)     In subsections (2) and (4), a reference to the time at which the offence is alleged to have been committed, in relation to an offence against section 70, is a reference to the time at which A first knowingly possesses the image.

    (7)     The accused bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (2)(d)(ii) or (4)(c)(ii) or (d)(ii).

Note

Section 72 of the Criminal Procedure Act 2009 applies to subsections (1), (2) (other than paragraph (d)(ii)), (3) and (4) (other than paragraphs (c)(ii) and (d)(ii)).".



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