Child Pornography Laws

Recent controversies over displays in art galleries have raised questions about the distinction between artistic expression and pornographic displays of children.

Politicians in New South Wales have been particularly vocal in seeking new laws that would limit the ability to depict a naked child in a work of art. Media stories have also focused on high profile cases involving public officials who possessed child pornography in NSW.

This article will provide readers with an overview of current laws in NSW that address child pornography.

What is child pornography?

The Crimes Act makes it illegal in NSW to create, distribute, or possess “child abuse material.” That phrase includes films, pictures, and computer images that shows a child who is or appears to be under the age of 16:

• as the victim of torture, cruelty, or physical abuse,
• in a sexual pose or engaged in real or apparent sexual activity, or
• in the presence of another person who is in a sexual pose or engaged in real or apparent sexual activity.

The law also prohibits the display of the “private parts” (the genital or anal area and female breasts) of a child, whether bare or covered by underwear.

The law only makes the material illegal if reasonable persons would find the material offensive, taking into account prevailing moral standards, the material’s artistic or educational merit, and the material’s general character. A photograph that appears in a medical text might therefore be acceptable while the same photograph in an entertainment magazine might be illegal.

Penalties

Using a child to produce child abuse material is punishable by a maximum sentence of:

• 14 years if the child is under the age of 14
• 10 years if the child is age 14 or 15

Disseminating or possessing child abuse material is punishable by a maximum sentence of 10 years.

Problems with the current law

Some terms used in the NSW laws are ambiguous. Whether a child is in a “sexual pose,” for instance, is not always clear. Sitting on a chair might not be a sexual pose but sitting with open legs might be.

The “reasonable persons” standard, while purporting to be objective, is not necessarily helpful. Taking the recent art gallery displays as examples, the gallery curator obviously thought the displays had artistic merit, while the politicians who complained about them did not. Who is to say that one viewpoint is more reasonable than the other?

The ambiguity of the law may create defences in appropriate cases. If you are charged with a child pornography offence, you should discuss possible defences with a lawyer.