Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent
51P Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent
S. 51P inserted by No. 47/2016 s. 16.
It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—
the child abuse material is an image; and
at the time at which the image was first made, the child (B) whose depiction in the image makes it child abuse material—
was aged 16 or 17 years; and
was not, or had not been, under A's care, supervision or authority; and
the image does not depict an act that is a criminal offence punishable by imprisonment; and
S. 51P(1)(d) amended by No. 5/2018 s. 5.
A does not distribute the image to any person other than B; and
A is not more than 2 years older than B; and
at the time of the conduct constituting the offence, A reasonably believed that B consented to that conduct.
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 B in producing.
For the purposes of subsection (1)(b), 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.
A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection (1)(e) and (f).
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) and (d).
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