Early last month, Sydney author and charity marketing executive Lauren Tesolin-Mastrosa was charged with three serious NSW criminal offences relating to the production of child abuse material. The alleged offending appears to be tied to Tesolin-Mastrosa's latest novel, Daddy's Little Toy, which depicts a sexual relationship between an 18-year-old girl and her father's friend.
What is Daddy's Little Toy?
Tesolin-Mastrosa, who writes under the pen name Tori Woods, was facing online backlash prior to being arrested by police. This occurred when excerpts from Daddy's Little Toy were shared online, some of which appeared to suggest the male character in the novel had desired the girl since she was three years old. The book's cover, which featured children's building blocks, further fuelled concerns that the work sexualised children.
Police arrested Tesolin-Mastrosa at her home in Quakers Hill on Friday the 21st of March and executed a search warrant, seizing copies of the book. She was formally charged with possessing, disseminating, and producing child abuse material. These charges carry significant legal penalties.
Tesolin-Mastrosa has denied that her book promotes or condones child sexual abuse and called the backlash a "big misunderstanding." However, the decision to lay charges suggests that police believe the content may fall within the legal definition of child abuse material under NSW law.
Meaning of Child Abuse Material?
Child abuse material in New South Wales is defined as material depicting or describing any one or more of the following in a way that reasonable people would regard in all the circumstances as "offensive":
- A person who is, appears to be, or is implies to be, a child
(under the age of 16 years):
- As a victim of torture, cruelty or physical abuse, or
- Engaged in or apparently engaged in a sexual pose or sexual activity, or
- In the presence of another person who's engaged or apparently engaged in a sexual pose or activity, or
- The private parts of a person who either is, appears to be or is implied to be, a child.
Section 91FB Crimes Act defines child abuse material in New South Wales.
There also a definition of child abuse material under the commonwealth laws of Australia, namely section 473.1 of the Criminal Code Act 1995 (Cth). The difference is that the commonwealth law considers a child as a person under the age of 18 years. In contrast, the NSW state law considers a child as a person under the age of 16 years.
Child Abuse Material Offences
Tesolin-Mastrosa has been charged with multiple counts of the offence of producing, disseminating or possessing child abuse material under section 91H of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years' imprisonment and is a New South Wales State offence of child abuse material.
In New South Wales it is a crime to use children to produce child abuse material. equally so to produce, disseminate or possess such material as prescribed by both section 91G and 91H of the Crimes Act (NSW).
Section 91H is distinct from the section 91G offences of using child for production of child abuse material where the child is at least the age of 14 years.
Some of the available defences to the charge of child abuse material include:
- Approved research where the conduct was necessary for assistance in scientific, medical or education research approved by the Attorney General.
- Child abuse material of yourself.
- Public benefit and law enforcement purposes.
- Unsolicited possession but removing it as soon as possible.
- If you were underage at the time, provided a reasonable person would consider possession of it as acceptable having regard to the circumstances of you coming into possession and your relationship with the person depicted in it, and other factors outlined in section 91HAA Crime Act 1900 (NSW).
Do Criminal Laws Apply to Written Material?
Yes. Whilst many people assume that offences relating to child abuse material only refer to photographic or video material, such laws also apply to written content, including fictional or literary works.
Courts have consistently held that written depictions of child sexual abuse can meet the legal definition of child abuse material if they are considered offensive, exploitative, or harmful. For example, in Traynor v McCullough [2011] TASSC 41, the Tasmanian Supreme Court upheld a conviction for possession of a book titled 'The Pearl', which contained fictional stories depicting sexual activity involving children. The court determined that the written nature of the content did not protect it from being classified as child abuse material. Similarly, in the NSW case of R v Jarrold [2010] NSWCCA 69, a man was convicted of producing child abuse material for describing child sexual abuse in an online chatroom, even though the material was acknowledged to be purely fantasy. The court confirmed that the fictional or imaginative origin of the content was irrelevant, what mattered was whether the material 'depicted' child sexual abuse in a way that fell within the legal definition.
These precedents clearly demonstrate that written or imaginative content is not immune from prosecution under child abuse material laws, particularly where the content sexualises minors or normalises exploitative conduct.
What If The Character Depicted Is Said to Be an Adult?
There is some public confusion regarding why Tesolin-Mastrosa was charged with child abuse material, given that excerpts of the book indicate that the female character described is explicitly depicted as being 18 or older.
Whilst it's not clear what scenes were depicted in Daddy's Little Toy, courts have taken a fairly broad view on what constitutes a "depiction" of a child involved in sexual activity. For example, in McEwen v Simmons 73 NSWLR 10, the NSW Supreme Court upheld a conviction involving cartoon characters (from The Simpsons) engaged in sexual activity. While these characters were not real children, the court found that they could still be considered 'persons' under the law, and their portrayal conveyed a sexual interest in children. In the case of Daddy's Little Toy, although the central character is said to be 18, the alleged references to the male character desiring her since she was three, coupled with the use of child-themed imagery on the cover, may be interpreted as sexualising a child.
It remains to be seen what evidence NSW Police have gathered against Tesolin-Mastrosa, however the case demonstrates that under NSW criminal law even fictional literary works can constitute child abuse material.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
