Sexting Laws in Victoria: The Six Exceptions and Defences Under Sections 51M to 51R

In Victoria, every child abuse material offence under the Crimes Act 1958 carries the same maximum, up to 10 years' imprisonment, but six separate exception and defence provisions, sections 51M to 51R, can protect a young person depending on exactly whose image it is, who sent it, and how old everyone involved was, a structure that the popular one-line 2-year rule does not fully capture.

The age threshold in Victoria

Section 51A(1) of the Crimes Act 1958 (Vic) defines a child as a person under the age of 18 years for the purposes of the child abuse material provisions. Child abuse material itself is defined as depicting a person who is, appears to be, or is implied to be a child, as a victim of abuse, in a sexual pose or activity, or with their genital, anal or breast area shown, judged against whether a reasonable person would regard it as offensive in the circumstances. The appears or is implied to be language means the offence can reach an apparent-age depiction, not only a proven actual age.

The core offences and penalties

Sections 51B through 51H cover the full range of conduct: involving a child in production, producing, distributing, administering a website used to deal with the material, encouraging use of such a website, possessing, and accessing. Every one of these carries the same maximum, level 5 imprisonment, up to 10 years, with no lesser tier written into the Act itself for a younger offender. Any leniency comes entirely from the exception and defence provisions below, not from a reduced penalty for the base offences. Possession is defined broadly enough to cover material a person controls access to online, not only a file stored on their own device.

Sending your own image: section 51M

Section 51M is described in the Act as an exception, not merely a defence, which matters because an exception removes the offence itself rather than giving the accused something to prove. It applies where the accused is themselves a child, and covers production, distribution, possession and accessing, for an image depicting the accused alone. The Act's own illustrative example describes a 15 year old photographing themselves and storing the image on their phone. The section's text does not attach an express no-distribution condition to this exception the way several of the adjacent provisions do, so a plain reading suggests it can also cover a child sending a solo image of only themselves, not only keeping it. No Victorian court decision or prosecutorial guideline confirming that reading was found for this page, so it is stated here as the text of the Act, not as a settled interpretation.

The 2-year peer defence: section 51N

Section 51N is what most people mean by Victoria's sexting exception, and it is a defence rather than an automatic exception, meaning the accused has to raise it. It applies where the accused is a child, the image does not depict (and the accused reasonably believed it did not depict) an imprisonable offence, and the accused was not more than 2 years older than the youngest person shown, or reasonably believed that. Unlike several of the other provisions, section 51N places no express limit on who the image can be sent to. Its key condition is that the accused must be a child themselves; an 18 year old cannot rely on section 51N for a 17 year old's image, even within the 2-year gap.

A now-adult holding an old image: section 51O

Section 51O is the residual defence for someone who has since turned 18 and can no longer rely on section 51M. It covers production, possession and accessing, but not distribution, requires that the image depicts the accused as a child, that it does not show an imprisonable offence, and that the accused does not distribute it to anyone. This is the provision for an old self-image kept, not shared, once the person is legally an adult.

Near-peer and relationship defences: sections 51P, 51Q, 51R

Section 51P is the provision most people picture as the classic near-peer exception, and unlike sections 51M and 51N, it is not limited to a child accused; an adult can rely on it. It requires that the depicted person was 16 or 17 years old when the image was made, was not under the accused's care or authority, the accused is no more than 2 years older than that person, the accused reasonably believed the person consented, the image does not show an imprisonable offence, and the accused does not distribute it to anyone other than the person shown. Sections 51Q and 51R are narrower marriage and domestic-partnership variants, with the same 16-or-17 restriction on the depicted person, the same distribution cap, and a valid marriage or domestic partnership requirement.

Unsolicited images and administrator defences

Section 51T gives a defence for unsolicited possession: the accused must show they did not intentionally come into possession of the material and took reasonable steps, such as deleting or reporting it, once they became aware they had it. Section 51S gives a related defence for a website administrator who takes reasonable steps once made aware of misuse. Section 51U removes any defence based on an honest but mistaken belief that the material was not offensive.

Registration on the Sex Offenders Register

An offence committed as a child in Victoria is never itself a registrable offence, even where the same offence would automatically register an adult. Under section 11 of the Sex Offenders Registration Act 2004, a court may order a child offender to comply with reporting obligations, but only if it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more people or of the community, a materially higher bar than the automatic registration that applies to an adult. Where registration is ordered against a child, the reporting period is halved compared with the equivalent adult period.

Adult sharing: lawful with consent

Sexting between consenting adults is lawful in Victoria. Sharing an adult's intimate image without consent is covered separately, under section 53S of the Crimes Act 1958, with section 53R covering creating such material and section 53T covering threats to record, create, alter or distribute it. For the fuller comparison across every state, including penalties, see the deepfake and intimate image laws in Australia.

If police contact your teenager

If police want to speak with a young person about a sexting matter, the general rules around questioning and support persons apply as in any other criminal matter, and those rules vary by state. See Miranda rights in Australia for how questioning, support persons and the right to a lawyer work in Victoria, as a starting point for what to expect.

Related reading

For the age thresholds, offences and defences across every state and territory, see the sexting laws in Australia. For more everyday law topics, see the Australia everyday law section.