Using a Child for Production of Child Pornography

In the ACT it is a criminal offence to use a child for the production of child exploitation material. 

If the child is aged under 12 years, the offence carries a maximum penalty of a $240,000 fine or 15 years imprisonment, or both. If the offence involves family violence, it is aggravated, and the maximum penalty is increased to a $304,000 fine or 19 years imprisonment, or both. 

If the child is over the age of 12 years, the offence carries a maximum penalty of a $160,000 fine or 10 years imprisonment, or both. If the offence involves family violence, it is aggravated, and the maximum penalty is increased to a $208,000 fine or 13 years imprisonment, or both. 

There are a number of offences in the ACT relating to child exploitation material. These include having possession or control of child exploitation material, trading in child exploitation material (including producing, publishing, offering or selling child exploitation material), and using, offering or procuring a child either for a pornographic performance or to produce child exploitation material. There are also a number of Commonwealth offences relating to such material.

What Is Using A Child For The Production of Child Exploitation Material?

The offence of Using a Child for Production of Child Exploitation Material is contained in section 64 of the Crimes Act 1900 which is broken down into two sub-sections; one for a child who is under the age of 16 years but over the age of 12 years, and one for a child who is under the age of 12 years.

It is an offence for a person to use, offer, or procure a child for either the production of child exploitation material, or for a pornographic performance. 

For this offence, “child exploitation material” is anything that represents:

• The sexual parts of a child; or
• A child engaged in an activity of a sexual nature; or
• Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child. 

The word “represent” is also defined in section 64(5) of the Crimes Act 1900 as “depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.” This extends what is considered child pornography well beyond photographs and videos.

Section 64(5) of the Crimes Act 1900 further defines “pornographic performance” as:-

• A performance by a child engaged in an activity of a sexual nature; or
• A performance by someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

The following acts constitute Using a Child for Production of Child Exploitation Material:

• You have some of the boys around to your house and everyone is getting drunk. You offer your 15 year old cousin who is staying with you from France to do a striptease for them while someone films it.
• You are a teacher at a school. You tell one of your students that you will not fail him if he performs oral sex on you. He agrees and you film the act on your phone which is sitting on the whiteboard.
• Your daughter has some friends around one weekend for a sleepover. You get one of the girls alone and ask her to lie on the bed and touch herself while you watch.

What Must Be Proven?

For a person to be found guilty of Using a Child for the Production of Child Exploitation Material the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you used, offered or procured a child for the production of child exploitation material; or
• That you used, offered or procured a child for a pornographic performance.

Which Court Will Hear The Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the Supreme Court. The matter will start in the Magistrates Court and will eventually be committed to the Supreme Court to be finalised. 

Possible Defences to Using a Child for the Production of Child Exploitation Material

The following defences may be available:

• The reason you used, offered or procured a child was not to produce child exploitation material or a pornographic performance; or
• The person depicted was not a child; or 
• The material produced was not child exploitation material.

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely.

In the ACT, a Court can impose any of the following penalties:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for incest might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to Gaol for using a child for the production of child exploitation material charge?

The offence carries a maximum penalty of full-time imprisonment. It is very likely that you will be sentenced to a term of imprisonment if you are found guilty of, or plead guilty to, this offence, even if you do not have any prior criminal convictions. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.