Pornography

It is not an offence to sell pornography, however it is an offence to exhibit or sell indecent or offensive material. Indecent and offencive include material that is immoral or obscene; or includes:

  • violence or cruelty; or
  • the manufacture, supply, aquisition or use of drugs or instruments of violence or cruelty; or
  • instructions in crime; or
  • revolting or abhorrent things; and

would cause serious and general offence amongst reasonable adult members of the community.

Maximum penalty: $20 000 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 33(2)]

It is also an offence, with the same penalty, to do the following with indecent or offensive material:

  • produce or take any step in the production of such material for the purpose of selling it [s 33(2)(a)];
  • show or put it in a public place or have it visible from a public place [ss 33(2)(c)-(d)];
  • show such material to a person so as to offend or insult that person or show it in a public place [s 33(2)(e)]; or
  • give or show it to a minor [ss 33(2)(f)-(g)].

However, if a parent or guardian shows such material to his/her own child, it is not an offence under section 33(2) but, depending on the circumstances it is possible that charges of gross indecency could follow or that child abuse issues could be raised: see Child Protection.

The indecent or offensive material can be confiscated [s 33(9)].

No material is indecent or offensive if it is intended for the advancement or dissemination of legal, medical or scientific knowledge or if it is part of a work of artistic merit where there is no undue emphasis on its indecent or offensive aspects [s 33(5)].

Any prosecution under s 33 cannot be commenced without consent of the Minister and the Minister must have regard to the South Australian Classification Council in making their decision [ss 33(6)-(7)].

See also the Classification (Publications, Films and Computer Games) Act 1995 (SA).

Child exploitation material (child pornography)
Possession of child exploitation material (child pornography)

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; or who intends to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

Maximum penalty:

  • First offence:
    basic offence: 5 years imprisonment
    aggravated offence*: 7 years imprisonment
  • Subsequent offence:
    basic offence: 7 years imprisonment
    aggravated offence*: 10 years imprisonment

[s 63A(1) of the Criminal Law Consolidation Act 1935 (SA)].

It is a defence to this charge to prove that the material was unsolicited and that the person took reasonable steps to get rid of it as soon as they became aware of the material and its nature [s 63A(2)].

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

Production of child exploitation material (child pornography)

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of its pornographic nature.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63 of the Criminal Law Consolidation Act 1935 (SA)]

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

'Sexting' and the production and dissemination of child exploitation material (child pornography)

What is sexting?

'Sexting involves sending suggestive or sexual images through mobile phones that can then be posted on the internet or forwarded to other people.' (NSW government media release 3 May 09).

Is sexting illegal?

Yes, if it involves the production or dissemination of child exploitation material, or offends laws against indecency and offensive or harassing behaviour.

Federal Law

Under the Criminal Code Act 1995 (Cth) it is an offence to use phone or internet services to access,  send, publish or solicit (ask others to provide) material that is child pornography [s 474.19(a)].

Under the Act child pornography includes material includes:

  • an image of someone (or a description of someone) who is, or appears to be, under 18 years old, engaged in (or appears to be engaged in) sexual activity, in a sexual pose, or is in the presence of a person engaging in  sexual pose or activity; or
  • depicts for a sexual purpose or describes, the sexual organs or anal region or female breasts of a person who is or appears to be, or is implied to be under 18 years old; and

is offensive to reasonable persons [see s 473.1 Criminal Code Act 1995 (Cth)].

Other offences  under the Criminal Code Act 1995 (Cth) that could be committed by sexting include:

  • use of phone or internet services to ‘groom’ children under 16 years old for sexual activity [s 474.27];
  • procurement of under 16 year olds for sexual activity [s 474.26];
  • use of phone or internet services to send indecent communications to children under 16; and
  • the use of phone or internet services to menace harass or cause offence [s 474.17].

State Law

In South Australia sexting is illegal under the Criminal Law Consolidation Act 1935 (SA) if it involves the possession, production or dissemination of child exploitation material.

Under the Criminal Law Consolidation Act 1935 (SA):

Child exploitation material means material that:

  • describes or depicts a person who is under the age of 17, or who appears to be under the age of 17, engaging in sexual activity ; or consists of the image of a child or bodily parts of a child, or appears to have involved a child; and
  • is of a pornographic nature (intended to excite or gratify sexual interest; or to excite or gratify a sadistic or other perverted interest in violence or cruelty) [s 62].

Production and dissemination includes producing or taking steps to produce or disseminate child exploitation material, knowing of its pornographic nature [s 63]. The maximum penalty for this offence is 10 years imprisonment for a basic offence. 12 years imprisonment for an aggravated offence (e.g. if the child was under 14 or an offensive weapon was used or threatened to be used).

What if someone sent me child exploitation material (child pornography) even though I didn’t ask for it?

It is a defence to a charge of possessing child exploitation material if it can be proved that the material came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it [s 63A(2)].

Distribution of invasive images ('revenge porn')

It is an offence to distribute an invasive image of another person knowing, or having reason to believe, that the person does not consent to its distribution (often referred to as 'revenge porn'). The offence applies to both child and adult offenders.

An invasive image is defined as one in which the person is shown a place other than a public place and engaged in a private act, or alternatively, in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes where bare breasts are visible. The definition exclused images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community (e.g. parents sending innocent pictures of their baby to family and friends).

It is a defence to a charge of distributing an invasive image if it was done for a purpose connected with law enforcement, for a medical, legal or scientific purpose or if it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.

Maximum penalty: in the case of a person aged under 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.

[See Summary Offences Act 1953 (SA) s 26C]

Threats to distribute invasive images

A person who threatens to distribute an invasive image of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(1)]. It is often associated with the offence of distribution of invasive images (see above). Both child and adult offenders can be charged with this offence.

Maximum penalty: if the invasive image is of a person under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.

A person who threatens to distribute an image obtained by indecent filming of a person with the intention of causing fear to that person, or being recklessly indifferent as to whether fear is caused, commits an offence [Summary Offences Act 1953 (SA) s 26DA(2)].

Maximum penalty: if the person filmed was under the age of 17 - $10 000 or imprisonment for 2 years; in any other case - $5 000 or imprisonment for 1 year.

Defences: It is a defence to either charge that the person filmed or photographed consented to that particular distribution of the image the subject of the filming; or the person consented to the distribution of the image the subject of the filming generally. For either defence to apply the person the subject of the filming or photographing must not, at the time of the alleged offence, have withdrawn their consent to the distribution of the image [s 26DA(3)].

What constitutes a threat?

A threat may be either directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct. Both explicit and implicit threats are recognised [s 26DA(4)].

Pornography  :  Last Revised: Tue Aug 9th 2016
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