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Pornography and Sexual Photos and Films

Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (January 2018), however may change without notice.

 

Young people viewing pornography

Is it illegal to view porn involving adults on the internet if you’re under 18 years old?

In most circumstances, it is not illegal for someone who is under 18 to view porn that involves adults having sex or involved in sex acts, or sexually explicit images. While the Australian Communications and Media Authority can request that films on the internet showing people having sex are removed, it’s generally not against the law to look at these films for personal use.

Remember though, it’s never legal to watch, make, show or sell pornography involving young people under 18 or  to show or sell indecent or offensive material. Indecent or offensive material includes material that includes violence or cruelty or anything that would cause serious and general offence amongst reasonable adult members of the community.

Is it illegal to show porn to someone who is under 18 years old?

Generally speaking, it is illegal to send, show, or supply pornographic films to a young person under 18 years old, even if you’re showing them in a private place like your house. This means that a young person showing  another young person a porn film or clip could be committing an offence.

 

See further the Law Handbook on Pornography.

 

Sexually explicit photos and films that have young people in them

What does the law say about these?

A sexual image or film involving young people could be considered child pornography. Under South Australian law, child pornography includes anything (such as a photo or a film) that describes or shows someone who is under the age of 17 (or someone who appears to be under 17):

  • Engaged in some kind of sexual activity; or
  • Contains an image of the body parts of a child or young person; or
  • Appears to involve a child or young person in some way; and
  • The image is intended to be pornographic (which means it’s meant to be sexy or excite some kind of sexual arousal).

Under the Federal law, child pornography includes sexual images of anyone who is (or appears to be) under 18 years old. It’s possible to be charged under federal laws in South Australia.

Even if a young person says that they agree to be in the image or film, it could still be considered child pornography.

It’s an offence to make, send, distribute, post online, have, or ask someone for, child pornography (or attempt any of these things). These are serious offences - get legal advice as soon as possible if the police want to question you.

What other laws could apply to sexual images of young people?

There are other laws that could apply to sexual photos and young people. For example, it is illegal to use phones or the internet to ‘groom’ young people under the age of 17, such as by sending sexual images or porn to try to get that young person interested in sex. If the person doing the ‘grooming’ is an adult and they are in a position of power or authority over the young person (for example, a teacher, guardian, or employer) then the law says that the young  person must be 18 or older, otherwise those actions will be a criminal offence. It may not be illegal if the young person receiving the communication was 16 and the person who has been charged was under 17 or thought that the other young person was 17 or older. Get legal advice!

Also, in most cases, it is illegal to get, or encourage, a young person under 17 (or 18, if the older person is in a position of power or authority) to do an ‘indecent act’ or make an image or some kind of record of a young person engaged in an ‘indecent act’.

 

Invasive images and films of others

What if someone sends out a sexual or invasive image or threatens to send out a sexual or invasive image without the permission of the person in the image?

An invasive image is an image in which a person is in a place other than a public place and is engaged in a sexual act not ordinarily done in public, some other act in a sexual manner or context, using a toilet, or is in a state of undress such that their bare genital or anal region can be seen. For females the definition also includes images that show bare breasts.

It is an offence to distribute an invasive image of someone if you know or have reason to believe that the other person does not consent to that particular distribution or does not  consent to the distribution of the image generally.

It is also an offence to threaten to distribute an invasive image or an image from an   indecent film if you intend to make the other person afraid that you will do it, or if you don’t care whether they are afraid you will.

Even if a young person under 17 agrees to be in a invasive image or have the  image distributed, this doesn’t count as consent and these laws can still apply.

It is also an offence to film another person in a state of undress or engaged in a private act (like having a shower) in circumstances where a person would ordinarily expect privacy, or film a persons private region when this would not be expected.

These offences all carry serious penalties.

 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of the National Children’s and Youth Legal Centre in allowing the Legal Services Commission of South Australia to use and adapt existing content.