Text as at 26 April 2026

This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.

51Q Defence—marriage or domestic partnership

(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—

(a)the child abuse material is an image; and

(b)the image is child abuse material because of its depiction of another person (B); and

(c)the image does not depict a criminal offence punishable by imprisonment; and

(d)A does not distribute the image to any person other than B; and

(e)at the time at which the image was first made—

(i)B was 16 or 17 years of age; and

(ii)either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(iii)where A was B's domestic partner, if B was under A's care, supervision or authority, the domestic partnership commenced before B came under A's care, supervision or authority; and

(f)at the time of the conduct constituting the offence—

(i)either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(ii)A reasonably believed that B consented to the conduct constituting the offence.

(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)For the purposes of subsection (1)(e), 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.

(4)A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection

(1)(f)(ii).

1References 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.

2An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c), (d), (e) and (f)(i).

3See sections 36 and 36AA for the meaning of consent.