7.3.25 - Distributing Child Abuse Material
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- Section 51D of the Crimes Act 1958 establishes that it is an offence to distribute child abuse material. The section came into effect on 1 July 2017 (Crimes Amendment (Sexual Offences) Act 2016 s 2).
Overview of elements
- The offence requires that the prosecution prove three elements beyond reasonable doubt:
- The prosecution must prove the accused intentionally distributed the material in question (Crimes Act 1958 s 51D(1)(a)).
- For information on the meaning of ‘material’, see 7.3.24 – Production of child abuse material.
- The Crimes Act 1958 contains an inclusive list of ways in which material may be distributed, including:
Publishing, exhibiting communicating, sending, supplying or transmitting the material to any other person; or
Making the material available for access by any other person (Crimes Act 1958 s 51A(2)(b)).
Child abuse material
- The second element the prosecution must prove is that the material is child abuse material (Crimes Act 1958 s 51D(1)(b)).
- For information on the meaning of ‘child abuse material’, see 7.3.24 - Production of child abuse material.
Knowledge that the material is child abuse material
- The third element the prosecution must prove is that the accused knew the material was, or probably was, child abuse material (Crimes Act 1958 s 51D(1)(c)).
- As discussed in 7.3.24 – Production of child abuse material, the model charge assumes that, despite Crimes Act 1958 s 51U, the prosecution must prove that the accused knew the material meets both the content limb and the offensiveness limb of the definition of child abuse material.
Matters that do not affect the offence
- Section 51D provides that it is not necessary to prove the identity of any person to whom the material was distributed, or that another person accessed the material (Crimes Act 1958 s 51D(3)).
- It does not matter that some of the material was distributed outside Victoria, provided the accused was in Victoria for some or all of the time when the material was distributed (Crimes Act 1958 s 51D).
- Further, it does not matter that the accused was outside Victoria for some or all of the time when the material was distributed, as long as some or all of the material was distributed in Victoria (Crimes Act 1958 s 51D).
Exceptions and defences
- The Crimes Act 1958 provides three exceptions and five defences to the offence of producing child abuse material (see Crimes Act 1958 ss 51J, 51K, 51L, 51M, 51N, 51P, 51Q, 51R).
- Three of the defences are only available if the accused has not distributed the child abuse material to a person other than the child depicted (Crimes Act 1958 ss 51P, 51Q, 51R).
- For information on the defences and exceptions, see 7.3.24 – Production of child abuse material, noting that the defence in Crimes Act 1958 s 51O (image of oneself) does not apply to this offence.
Last updated: 17 March 2020