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) 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—
(i) B was 16 or 17 years of age; and
(ii) either A and B were married to each other and 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—
(i) either A and B were married to each other and 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) A reasonably believed that B consented to the conduct constituting the offence.
(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)(f)(ii).
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), (d), (e) and (f)(i).
Note 3 to s. 51Q amended by No. 38/2022 s. 13.
3 See sections 36 and 36AA for the meaning of consent.
S. 51R inserted by No. 47/2016 s. 16.