Context, Motivation and Objectivity: Navigating the Legal Quagmire of Child Sexual Exploitation Material Offences in Australia
![handle is hein.journals/utasman40 and id is 112 raw text is: CONTEXT, MOTIVATION AND OBJECTIVITY: NAVIGATING
THE LEGAL QUAGMIRE OF CHILD SEXUAL EXPLOITATION
MATERIAL OFFENCES IN AUSTRALIA
DOMINIQUE MORITZ*
Child sexual exploitation material (CSEM) is a significant threat to children
and the community. As CSEM exploits vulnerable people, it is widely
condemned and the law facilitates offender prosecution. CSEM law balances
protecting children from CSEM harm; ensuring a person's actions, not their
thoughts, are punishable; and avoiding community censorship. State and
territory jurisdictions measure CSEM criminality according to whether a
reasonable person would find the material offensive or whether the material
is intended for sexual interest or arousal. This article will critique how
superior courts fail to consistently interpret CSEM legislation, namely the
reasonable person and the sexual arousal or interest tests, and how this can
lead to definitional uncertainty, unnecessary acquittals, and unfair
convictions. The most significant inconsistency in applying CSEM provisions
relates to how context is used when interpreting CSEM legislation. This
article will ultimately argue that context should be considered in interpreting
CSEM offences andfailing to account for it is a significant flaw in legislation.
I INTRODUCTION
Child sexual exploitation material (CSEM) is a significant threat to children
and the community. CSEM refers to electronic or print materials which
exploit children in some way, often characterised by capturing photo or video
of children which is offensive or abusive. CSEM has been acknowledged as
a significant problem because of the harm it can cause children, families and
the community.' In fact, 'the material in question cannot [usually] come into
existence without exploitation and abuse of children somewhere in the
world.'2 Every record of CSEM is evidence of child exploitation and/or
abuse.3 The viewing and sharing of CSEM, facilitated through the online
environment, means there is 'pictorial evidence of exploitation and the
degradation it causes' which is also a frequent reminder to victims of their
* Senior Lecturer, School of Law and Society, University of the Sunshine Coast.
1 Jonathon Clough 'Just Looking: When does viewing online constitute
possession?' (2012) 36 Criminal Law Journal 233 ('Just Looking').
2 R v Booth [2009] NSWCCA 89, [41]. See also Tony Krone and Russell G
Smith, 'Trajectories in online child sexual exploitation offending in Australia'
(2017) 524 Trends & issues in crime and criminal justice 1.
3 R v Brown [2019] NSWDC 845.](ViewImageLocal?handle=hein.journals/utasman40&div=14&collection=&method=preview&ext=.png&size=3)
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Context, Motivation and Objectivity: Navigating the Legal Quagmire of Child Sexual Exploitation Material Offences in Australia
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