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Tuesday, 28 July 2009

The sexual context of child pornography

DPP v Annetts considers an important issue in child pornography cases. A case stated was recently placed before the NSW Court of Criminal Appeal that required interpretation of the phrase in a sexual context.



Similar wording is also used in Victorian statute, at s 67A Crimes Act 1958:



child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context;




The accused in Annetts' case had been in possession of a video of boys dressing and undressing in a changing room, and was alleged to have made the recording. (If these events had occurred in Victoria, charges under s 41B of the Summary Offence Act 1966 would presumably also have been before the Court).



There were no sex acts on the video. The District Court judge excluded from his consideration a number of factors the prosecution submitted he ought to consider in determining whether the video depicted children in a sexual context [at 5]:
  • the way the photos were taken - they were not taken openly.
  • the concentration, in some of the images, on the genitalia of the young persons filmed.
  • all of the images were of young boys.
  • the camera was disguised and the filming activity was planned and took place over a period of approximately 4 hours.
The prosecution also submitted it was appropriate for the Court to have regard to the reason the recording was made (suggesting it was made for the accused's sexual gratification) as relevant to whether or not the material came within the definition. The District Court rejected these submissions, and dismissed the charge.



The NSW Court of Appeal decided that the appropriate test had not been applied, and the matter was remitted back to the District Court for proper determination.



McClellan CJ [at 10]:
10 In my opinion his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a “sexual context.” That question must be answered after considering the content of the film itself.



11 For that reason the content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the question of whether or not the images depicted are of a person or persons in a “sexual context.” Of course it may be that after consideration of the content of a video, including a video containing a sequence of images of the genitalia of young boys, it could not be concluded that the video depicts boys in a sexual context. The images may have been made for a medical or artistic purpose and are depicted in that context. However, a conclusion that the images depict persons under 16 in “sexual context” may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted.



12 It follows that the primary judge’s approach was only partly correct. Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men’s change room were relevant to the question of whether or not the material depicted a person “in a sexual context”. Whether, when these matters are considered, an offence is proved in the present case is not a matter for this Court.

The test is an objective one and the intent of the maker is irrelevant. Sexual context clearly extends beyond actual depictions of sex, though how far is unclear.

3 comments:

Jeremy Gans said...

This NSW precedent may be distinguishable in Victoria. NSW has a broad (artistic, etc) 'merit' defence, whereas Victoria doesn't. We have a 'classificaton' defence, but, unlike in NSW, an X or X18+ classification won't suffice. So, the words 'sexual context' carry a lot more of a burden here and, arguably, should be construed more conservatively. (There's Charter s. 15(2), as well, but it would be blunted by Charter s. 15(3) in this context.)

007 said...

Victoria does have a merit defence, but only for a charge of possessing child pornography, not for making it: see Crimes Act 1958 s 70.

The English Court of Appeal considered similar circumstances in R v Bassett [2008] EWCA Crim 1174. A man was charged with voyeurism when he was caught surreptitiously filming a man showering his three-year-old daughter in change-room at a public pool.

The offence required observing a private act for the purpose of sexual gratification. The Court didn't think a person could expect privacy from other people present in the change room. It noted at [12] that even though the accused's purpose was alleged to be for sexual gratification, it had to be the nature, not purpose, of observation that created an expectation of privacy.

Jeremy Gans said...

Note that the s70 merit defence isn't available if the 'child' is actually under 18. That is, it's only available for fake child porn, e.g. porn made with young-looking adults.