51QDefence—marriage or domestic partnership

51Q Defence—marriage or domestic partnership

(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

(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).

1 References 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.

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

Note 3 to s. 51Q amended by No. 38/2022 s. 13.

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

S. 51R inserted by No. 47/2016 s. 16.