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Act index » Part I - Offences » Division 1 - Offences against the person » Subdivision (8D) - Child abuse material
51N Defence applying to children
(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— 2 The image depicts a child being sexually penetrated. A is a child and A reasonably believes that the image depicts a consensual sexual relationship between two 16 year olds and is therefore not a criminal offence. A also reasonably believes that A is not more than 2 years older than the youngest child depicted in the image. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.
(c)the image depicts one or more persons (whether or not it depicts A); and
(d)the image—
(i)does not depict an act that is a criminal offence punishable by imprisonment; or
(ii)depicts an act that is a criminal offence punishable by imprisonment but A reasonably believes that it does not; and
(e)at the time of the conduct constituting the offence— 2 years younger. Both are consenting to the act. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.
(i)A was not more than 2 years older than the youngest child depicted in the image; or
(ii)A reasonably believed that they were not more than 2 years older than the youngest child depicted in the image.
1 The image depicts A taking part in an act of sexual penetration with another child who is not more than
(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)A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection
(1)(d)(ii) and (e)(ii).
1References to A in this section are references to the same A referred to in sections 51B, 51C, 51D, 51G and 51H.
2An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c), (d)(i) and (e)(i).