Under Section 204B of the Criminal Code (WA), it is a criminal offence for an adult to use electronic communication to procure a child under 16 to engage in sexual activity or to expose them to indecent material. The law aims to protect young people from online exploitation and inappropriate contact through digital communication, including text messages, emails, and social media.
Definition of “Electronic Communication”
The term electronic communication covers a broad range of technologies, including:
- Internet messaging and chat platforms
- Social media applications
- Mobile phone calls and text messages
- Online gaming chat functions
These forms of communication are commonly used in cases where an adult attempts to engage a child in sexual discussions or exposes them to explicit content.
Understanding Section 204B of the Criminal Code (WA)
Section 204B of the Criminal Code (WA) criminalises the use of electronic communication to either procure a child under 16 for sexual activity or expose them to indecent material. The offence applies regardless of whether the communication results in physical contact, as the law is designed to prevent grooming and online exploitation.
The offence does not require a completed act of sexual activity or an actual child to be involved. The intent behind the communication is enough to establish criminal liability. This reflects the preventative nature of the law, which aims to stop predatory behaviour before further harm occurs.
What is Considered ‘Indecent Matter’?
The law defines indecent matter broadly under Section 204B(1). It includes explicit images, videos, or text-based content that is sexual in nature. Importantly, the material does not have to involve real individuals to be classified as indecent under the law.
Offences Under Section 204B
The law identifies several offences related to using electronic communication to engage with a child.
Using Electronic Communication to Procure a Child for Sexual Activity
An adult commits a crime if they use electronic communication with the intent to procure a person under 16 to engage in sexual activity.
Penalty: Up to 5 years’ imprisonment (s.204B(2)).
Using Electronic Communication to Expose a Child to Indecent Material
If an adult uses electronic communication to send indecent material to a person under 16, they can be charged under this section.
Penalty: Up to 5 years’ imprisonment (s.204B(2)).
Using Electronic Communication to Procure a Child Under 13 for Sexual Activity
If the victim is under 13 years of age, the offence is considered more serious, with harsher penalties.
Penalty: Up to 10 years’ imprisonment (s.204B(3)).
Using Electronic Communication to Expose a Child Under 13 to Indecent Material
Sending indecent material to a child under 13 carries higher penalties than if the victim were between 13 and 16.
Penalty: Up to 10 years’ imprisonment (s.204B(3)).
Defences and Legal Considerations
Belief About Age as a Defence
Under Section 204B(10) of the Criminal Code (WA), a person may defend the charge by proving they reasonably believed the child was 16 or older* (subject to certain conditions). However, this does not apply if the child was under 13 (s.204B(11)). The court will assess whether the belief was objectively reasonable, considering the conversation and representations made about age.
Undercover Police Operations and Fictitious Victims
A crime under Section 204B can be committed even if the child never existed. The law applies if the accused believed they were speaking to a minor, even if it was an undercover officer (s.204B(8)). This allows police to conduct sting operations targeting online grooming.
Entrapment Argument as a Mitigating Factor
While police stings are legal, the way an undercover officer initiated or encouraged the communication may be considered in sentencing. If law enforcement actively pressured the accused into offending, this may be raised as a mitigating factor to seek a reduced penalty.
Is Police Entrapment a Defence?
Entrapment is not a defence in Australia. Even if the accused was encouraged by an undercover officer, it does not excuse the offence. However, in cases where coercion played a role, it may be considered in sentencing.
Seek Legal Advice if You Have Been Charged
If you have been charged under Section 322 of the Criminal Code (WA), it is important to seek legal advice as soon as possible. These offences carry serious legal consequences, and understanding your rights and options early can make a difference in how your case is handled.
At WN Legal, we take a practical and thorough approach to your matter. We will carefully review the allegations, assess the evidence, and provide you with clear guidance on your legal position.
Our legal team can assist you with:
- Reviewing the strength of the case against you.
- Advising on possible outcomes and what to expect.
- Exploring defences that may be available to you.
- Guiding you through the court process and next steps.
Understanding your legal options can help you move forward with confidence. Contact WN Legal today for confidential legal advice.
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FAQs
What is the offence of using electronic communication to procure or expose a child to indecent material?
Under Section 204B of the Criminal Code (WA), it is an offence for an adult to use electronic communication with the intent to:
- Procure a person under 16 years of age to engage in sexual activity (s.204B(2)(a)(i)).
- Expose a person under 16 years of age to indecent matter (s.204B(2)(a)(ii)).
If the child is under 13 years of age, the penalties are more severe, with a maximum sentence of 10 years’ imprisonment (s.204B(3)). This offence applies even if the intended victim was not a real child, such as an undercover officer posing as a minor online (s.204B(8)).
What is considered ‘electronic communication’?
The term ‘electronic communication’ is defined broadly under Section 5 of the Electronic Transactions Act 2003 (WA). It includes communication via email, internet messaging, mobile phone calls or texts, radio, television, or any other form of digital transmission (s.204B(1)).
What are the penalties for this offence?
The penalties depend on the age of the victim:
- For a child under 16 years: Up to 5 years’ imprisonment (s.204B(2)).
- For a child under 13 years: Up to 10 years’ imprisonment (s.204B(3)).
Is believing the child was over 18 a valid defence?
For offences involving a child under 16, it is a defence if the accused reasonably believed the child was 16 or older (s.204B(10)). However, for offences involving a child under 13, a mistaken belief about the child’s age does not apply as a defence (s.204B(11)).
Does it matter if the ‘child’ was actually an undercover officer?
No, under Section 204B(8), it does not matter if the ‘child’ was a fictitious person, such as an undercover police officer posing as a minor online. The offence is committed as long as the accused believed they were communicating with a real child.
What is considered ‘indecent matter’ under this law?
The law defines ‘indecent matter’ as including any indecent film, videotape, audiotape, picture, photograph, or printed or written material (s.204B(1)).
Are all forms of sexual activity covered under this offence?
Yes, under Section 204B(4)-(5), the offence includes not only physical acts but also indecent behaviour that does not involve penetration or direct physical contact.
What should I do if charged under Section 204B?
Being charged under Section 204B is a serious matter with severe consequences. If you are facing allegations, seeking immediate legal advice is essential to understand your rights and available defences.
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