Written by Bill Doogue. Partner, Doogue O’Brien George Criminal Defence Lawyers.
We don’t like to think of the two hand in hand, however, a recent incident at my own child’s school made me reflect upon the current law in relation to child pornography.
A summarised version of events goes like this:
A young girl was asked for a photograph by one of the boys in her year group. She sent a nude photo of herself to the young boy, who then forwarded it on to other people. Obviously, the primary concern in this situation should be the welfare of the young girl.
And so I ask; how does it interact with the criminal law? To the law books we go.
Recently, there has been a new section 70AAA of the Crimes Act 1958 (Vic) added to legislation. That is in relation to child pornography offences and provides exceptions to the child pornography offences that previously haven’t been there. The reason for the additional legislation is that we were all fronting at Court for young people charged with child pornography offences in the most ridiculous circumstances. These young adults, who were mostly acting in an age-appropriate manner and snapping selfies with their similar age partner, were falling foul of possession of child pornography and production of child pornography charges. Mercifully, with the introduction of the legislative amendment on November 3rd 2014, the position is that those charges of production of child pornography (s 68), procurement of a minor for child pornography (s 69) or possession of child pornography (s 70) are given exceptions.
These exceptions include that if the image is of a minor (as is the accused) and the image depicts them alone or with an adult, then the previous sections do not apply. It also makes an age exception where the image is of another person with a minor and it would be child pornography. That is if the person is not more than 2 years older than the youngest person in the image or they believe reasonably that they are not more than 2 years old than the youngest minor. The photo must also not be showing an act that in itself is a criminal offence.
So, returning to the example of the kids at school, there would be an exception to the charges of production and possession of child pornography for both the young girl who took the photo and the boy who received the photo and possessed it on his phone. However, that is only dealing with what used to be the position that this behaviour would be swept up in child pornography charges; a blunt tool used by the Courts.
There were, however, other offences that were inserted into the Summary Offences Act 1966 on the same date of the November 3rd 2014 which cover this situation. Those two new offences regard the distribution of intimate images and threats to distribute intimate images. In the situation of the school that I’m talking of, there’s nothing being talked about in relation to threats to distribute intimate images, however, clearly the first charge of distribution of an intimate image is relevant.
What the law says is that a person commits an offence if they intentionally distribute an intimate image of another person to someone else and the distribution is contrary to community standards of acceptable conduct. So what this legislation deals with is exactly the situation that confronts us in the schoolyard where boys ask girls to send them photos of themselves and then distribute them onwards.
To break it down, the first element is if a person receives a photo from someone else that is of an intimate nature.
The second element is that they distribute the image i.e. they send it around.
The third element is that it’s contrary to community standards of acceptable conduct.
The “community standards of acceptable conduct” in relation to the distribution of the image are defined as having regard to:
- The nature and content of the image;
- The circumstances in which the image was captured;
- The circumstances in which the image was distributed;
- The age, intellectual capacity, vulnerability, or other relevant circumstances of the person;
- The degree to which the distribution affects the privacy of the person depicted in the image
I would have thought it patently clear that this is unacceptable behaviour. That children might forward the photo to other kids in a sort of “fun” way does not really raise it to acceptable conduct. There would also, inevitably, be school processes and teachings about these issues. They educate kids that it isn’t the right way to behave or the right thing to do (including the taking of the photograph).
The penalty for an offence under the section is level 7 imprisonment which is a maximum of 2 years imprisonment. Obviously if they were to be charged, which seems most unlikely, they would have to go through a process which would have, at the end of it, a minor penalty in all likelihood of a very therapeutic nature.
There is no likelihood that they would get a conviction or any sanction of that type. This is mainly because the Children’s Court’s aim is to rehabilitate young people; and rightly so.
There are two exceptions to that offence. The first one, that doesn’t apply in our situation, is that the person is not a minor. The second is that the photographed person had expressly or impliedly consented to the distribution of the intimate image. There is nothing that we have been told at the periphery of this that would indicate that there was any consent to the distribution of the image.
How should we deal with this issue?
There are a number of levels on which you would deal with this issue. The most important initial response is a pastoral care one from the school. That would involve a frank discussion, explaining that while it may have been a foolish act for the girl to take the photograph, that she is the victim in this situation. She cannot be blamed because somebody has acted in a terrible and insensitive manner towards her, even though she took the photograph herself.
The first thing the boy should do is to apologise to the young girl and her family.
The second thing is making it known to all the people it was forwarded to that it was an inappropriate and mean thing to do.
Thirdly, I would advise that he attend counselling.
Who would have thought sending your kids to school would need such analysis?