Victorian Current Acts Victorian Current Acts(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) A is a child; and
(b) the child abuse material is an image; and
(c) the image depicts one or more persons (whether or not it depicts A); and
(d) 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 reasonably believes that it does not; and
(e) at the time of the conduct constituting the offence—
(i) A was not more than 2 years older than the youngest child depicted in the image; or
(ii) A reasonably believed that they were not more than 2 years older than the youngest child depicted in the image.
Examples
1 The image depicts A taking part in an act of sexual penetration with another child who is not more than 2 years younger. Both are consenting to the act. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.
2 The image depicts a child being sexually penetrated. A is a child and A reasonably believes that the image depicts a consensual sexual relationship between two 16 year olds and is therefore not a criminal offence. A also reasonably believes that A is not more than 2 years older than the youngest child depicted in the image. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.
(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) A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection (1)(d)(ii) and (e)(ii).
Notes
1 References to A in this section are references to the same A 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), (d)(i) and (e)(i).
S. 51O inserted by No. 47/2016 s. 16.