WA State laws governing the possession of child exploitation material

Written by Jarryd Bartle.

A South Australian man is currently facing Federal criminal charges related to the importation and production of child-like sex dolls within his Adelaide home.

The last 5 years have seen a series of prosecutions related to child-like dolls throughout Australia, including in Western Australia.

The following outlines how criminal law principles apply to child-like dolls and their relationship to laws related to child exploitation material.

Child exploitation material offences in Western Australia

A number of offences related to child exploitation material are outlined under the WA Criminal Code. These include:

• The offence of producing child exploitation material under section 218 of the Code, which carries a maximum penalty of 10 years imprisonment.
• The offence of distributing child exploitation material under section 219 of the Code, which carries a maximum penalty of 10 years imprisonment.
• The offence of possessing child exploitation material under section 220 of the Code, which carries a maximum penalty of 7 years imprisonment.

Child exploitation material is defined under the Code as including:

• child pornography; or
• material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child in an offensive or demeaning context; or being subjected to abuse, cruelty or torture (whether or not in a sexual context).

Child pornography is further defined as material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child: 

• engaging in sexual activity; or
• in a sexual context.

A ‘child’ for the purposes of the Code, means a person under the age of 16 years old.

Can child-like sex dolls amount to child exploitation material in Western Australia?

Although child-like sex dolls do not involve actual children, this is not a barrier to dolls being considered child exploitation material under the WA Code.

‘Material’ under the Code is very broad, encompassing ‘any object, picture, film, written or printed matter, data or other thing’. This would include objects such as dolls.

Further, the Western Australia Court of Appeal case of Holland v The Queen [2005] WASCA 140, established that fictionalised depictions of child sexual abuse could amount to child exploitation material.

In Holland,  a man was convicted of prohibited import offences under the Customs Act 1901 (Cth) for importing a copy of the book “Street Boy Dreams”, which tells the story of a 35 year old man who enters into a series of relationships with various teenage boys between 13-14 years of age. In response to claims that child exploitation material offences only apply to actual “persons”, Chief Justice Malcolm noted that (at [17]):

In my opinion, it is a notorious fact of which judicial notice could be taken that the word ‘person’ as it is commonly used in everyday speech and language, extends to both real and fictitious persons. As the New Shorter Oxford Dictionary itself makes clear, the word ‘person’ includes a person who plays a part in a drama or a character in a play or story. It is clear that the word extends to real, imaginary and fictitious persons.

As such, a purely fictitious depiction of a child under the age of 16 years old, in the form of an inanimate doll, will be sufficient for prosecuting child exploitation material offences in Western Australia.

Federal offences related to child-like sex dolls

A number of Federal criminal offences deal with the possession, importation and exportation of child exploitation material, including child-like sex dolls.

Under section 474.22 of the Federal Criminal Code, it is an offence to use a carriage service (such as the internet) to solicit child abuse material.  Section 471.19 prohibits the use of a postal or similar service for child abuse material, while section 471.20 prohibits possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service.

Each of these offences carries a maximum penalty of 15 years imprisonment.

Child abuse material is broadly defined under the Code, encompassing material that depicts a person, or a representation of a person who is, appears to be, or is implied to be, under 18 years of age where:

• Depicted as a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
• Depicted as engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity; 
• Depicted in material showing a sexual organ, the anal region or breasts (for female persons) for sexual purposes.
• Depicted as a doll or other object, that a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

Along with being encompassed within the definition of child abuse material, child-like sex dolls are (as of 2019) also subject to a discrete offence under section 273A.1 of the Code. This offence applies if a person possesses a doll or other object that:

• Resembles a person who is, or appears to be, under 18 years of age; or a part of the body of such a person; and
• A reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse.

This offence carries a maximum penalty of 15 years imprisonment.

Finally, the Customs Act 1901 (Cth), child-like sex dolls are listed as a ‘tier 2’ good prohibited from exportation or importation into Australia.

It is an offence under section 233BAB of the Act if a person intentionally imports or exports a child-like sex doll, being reckless to the fact that the doll is a tier 2 good.  This offence carries a maximum penalty of 10 years imprisonment or a fine of 2500 penalty units (currently $782,500) or both.

Possible Defences for child-like sex doll offences

A number of possible defences exist for child-like sex doll offences. These include the following:

• The doll does not depict a person under the age of 16 (for WA Code offences) or 18 (for Federal offences).
• The doll was possessed for a lawful purpose, including being of literary, artistic or educational material or for a valid legal, medical or scientific purpose.
• The accused acted under duress when importing or possessing the doll.

Importantly, the fact that a doll is labelled as ‘adult’ or is above a certain height will not, in itself, amount to a defence to criminal charges.

Need Legal Advice?

Andrew Williams is an experienced Criminal Lawyer and Barrister in WA  who can provide you with expert legal advice.

Andrew offers a range of criminal law and traffic law services in Perth, Fremantle and all across Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.