§ 377BN — Defences to child abuse material offences

377BN.—(1) It is a defence to a charge for an offence of having possession of or gaining access to child abuse material under section 377BK for the accused person to prove that the accused person —(a)

did not intentionally come into possession of or gain access to child abuse material; and

(b)

on becoming aware of having come into possession of or gaining access to child abuse material, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the material.[15/2019]

(2) It is a defence to a charge for an offence under sections 377BH to 377BK if —(a)

the act that is alleged to constitute the offence was done for any of the following purposes without intent to cause injury to the person depicted in the child abuse material and with reasonable cause:(i)

the prevention, detection, investigation or punishment of any offence;

(ii)

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

(iii)

safety or national security; and[Act 23 of 2021 wef 01/03/2022]

(b)

the child abuse material or the abusive material, as the case may be, was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).[15/2019]

(3) It is a defence to a charge for an offence under sections 377BH to 377BK if the act that is alleged to constitute the offence —(a)

has a legitimate purpose related to science, medicine, education or art; and

(b)

did not pose an undue risk of harm to any person below 16 years of age. Explanation.—An act has a legitimate purpose related to art which reasonable persons would regard as art.

Illustrations

(a) A university researcher has child abuse material in his possession for the purposes of studying the psychological effects of exposure to such material. The researcher’s possession of the child abuse material has a legitimate purpose.

(b) A is a photo-journalist in a war zone. A takes a photo of a child victim of torture and submits this together with an article on the plight of such children to a news organisation for publication. The taking and sending of the photo has a legitimate purpose.

[15/2019]

(4) It is a defence to a charge for an offence under sections 377BH to 377BK if —(a)

the accused person (A) is below 16 years of age; and

(b)

the child abuse material that is alleged to constitute the offence is an image of A alone.Illustration

A is 15 years old and takes a photo of herself alone posing in the nude. A stores the photo in her mobile phone. A has not committed the offence of producing or possessing child abuse material.

[15/2019]

(5) To avoid doubt, it is not a defence to a charge for an offence relating to child abuse material under sections 377BG to 377BL that, at the time of the conduct constituting the offence, the accused was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being, in the circumstances, offensive.[15/2019]

(6) It is a defence to a charge for the following offences in circumstances where the offender (A) and the person below 16 years of age (B) are married and subject to the following respective conditions:(a)

an offence under section 377BG(1) or 377BH(1) if the child abuse material —(i)

involves only A and B in its production;

(ii)

depicts B only, A and B only, or A only if A is below 16 years of age; and

(iii)

was produced with B’s consent;

(b)

an offence under section 377BI if the distribution of the child abuse material —(i)

occurs between A and B only;

(ii)

involves material depicting B only, A and B only, or A only if A is below 16 years of age; and

(iii)

was distributed with B’s consent;

(c)

an offence under section 377BJ(2) if the offer to acquire, buy, or gain access to the child abuse material —(i)

occurs between A and B only; and

(ii)

involves material depicting B only, A and B only, or A only if A is below 16 years of age;

(d)

an offence under section 377BK(1) if the possession of the child abuse material was with B’s consent and the material depicts B only, A and B only, or A only if A is below 16 years of age.[15/2019]

—(1) It is a defence to a charge for an offence of having possession of or gaining access to child abuse material under section 377BK for the accused person to prove that the accused person —(a)

did not intentionally come into possession of or gain access to child abuse material; and

(b)

on becoming aware of having come into possession of or gaining access to child abuse material, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possession of or access to the material.[15/2019]

(2) It is a defence to a charge for an offence under sections 377BH to 377BK if —(a)

the act that is alleged to constitute the offence was done for any of the following purposes without intent to cause injury to the person depicted in the child abuse material and with reasonable cause:(i)

the prevention, detection, investigation or punishment of any offence;

(ii)

the conduct of contemplated or pending proceedings in any court or tribunal or to obtain evidence for the purpose of contemplating such proceedings;

(iii)

safety or national security; and[Act 23 of 2021 wef 01/03/2022]

(b)

the child abuse material or the abusive material, as the case may be, was not kept for a period longer than what was reasonably necessary or required for the purposes mentioned in paragraph (a).[15/2019]

(3) It is a defence to a charge for an offence under sections 377BH to 377BK if the act that is alleged to constitute the offence —(a)

has a legitimate purpose related to science, medicine, education or art; and

(b)

did not pose an undue risk of harm to any person below 16 years of age. Explanation.—An act has a legitimate purpose related to art which reasonable persons would regard as art.

Illustrations

(a) A university researcher has child abuse material in his possession for the purposes of studying the psychological effects of exposure to such material. The researcher’s possession of the child abuse material has a legitimate purpose.

(b) A is a photo-journalist in a war zone. A takes a photo of a child victim of torture and submits this together with an article on the plight of such children to a news organisation for publication. The taking and sending of the photo has a legitimate purpose.

[15/2019]

(4) It is a defence to a charge for an offence under sections 377BH to 377BK if —(a)

the accused person (A) is below 16 years of age; and

(b)

the child abuse material that is alleged to constitute the offence is an image of A alone.Illustration

A is 15 years old and takes a photo of herself alone posing in the nude. A stores the photo in her mobile phone. A has not committed the offence of producing or possessing child abuse material.

[15/2019]

(5) To avoid doubt, it is not a defence to a charge for an offence relating to child abuse material under sections 377BG to 377BL that, at the time of the conduct constituting the offence, the accused was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being, in the circumstances, offensive.[15/2019]

(6) It is a defence to a charge for the following offences in circumstances where the offender (A) and the person below 16 years of age (B) are married and subject to the following respective conditions:(a)

an offence under section 377BG(1) or 377BH(1) if the child abuse material —(i)

involves only A and B in its production;

(ii)

depicts B only, A and B only, or A only if A is below 16 years of age; and

(iii)

was produced with B’s consent;

(b)

an offence under section 377BI if the distribution of the child abuse material —(i)

occurs between A and B only;

(ii)

involves material depicting B only, A and B only, or A only if A is below 16 years of age; and

(iii)

was distributed with B’s consent;

(c)

an offence under section 377BJ(2) if the offer to acquire, buy, or gain access to the child abuse material —(i)

occurs between A and B only; and

(ii)

involves material depicting B only, A and B only, or A only if A is below 16 years of age;

(d)

an offence under section 377BK(1) if the possession of the child abuse material was with B’s consent and the material depicts B only, A and B only, or A only if A is below 16 years of age.[15/2019]