Section 20 of the Cybercrime Code Act 2016 deals with bestiality material.
Section 20 — the offence
(a) produce; or
(b) offer or make available; or
(c) distribute or transmit; or
(d) procure or obtain for himself or for another person, access to,
pornography of himself or of another person engaged in sexual activity with an animal or animals; or
(e) obtain access to animal pornography — whether or not by downloading or transmitting it to himself or another — for the purpose of giving effect to, or facilitating the commission of any one or more of the offences in paragraphs (b), (c) and (d),
is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K25,000 or imprisonment not exceeding 15 years, or both; and (b) for a body corporate, a fine not exceeding K100,000.
Three differences from section 17
| s 17 — pornography | s 20 — animal pornography | |
|---|---|---|
| Mental element | Intentionally only | Intentionally or recklessly |
| “Produce” | Only for the purpose of distribution | Producing simpliciter — no distributive purpose needed |
| “Procure or obtain access” | Only for the purpose of facilitating (b) or (c) | Paragraph (d) has no purpose requirement; paragraph (e) adds a purpose limb |
| Defence | s 17(2) — law enforcement or public benefit | None |
| Penalty | Identical — 15 years / K25,000; K100,000 corporate | |
Read carefully, paragraph (d) makes it an offence to procure or obtain for himself or for another person, access to the material — with no further purpose required.
That is a significant difference from section 17(1)(d), where obtaining access is only an offence when done for the purpose of making available or distributing.
Paragraph (e) then adds a separate limb for obtaining access for the purpose of facilitating (b), (c) or (d), which suggests paragraph (d) is intended to stand on its own.
In practical terms, section 20 is closer to section 18(2) than to section 17: obtaining the material is the offence.
The recklessness element
Section 17, section 18 and section 19 all require intention. Section 20 adds “or recklessly”.
The consequence is that a person who distributes or makes available material with conscious disregard of a substantial risk that it is animal pornography may commit the offence without knowing what the material was.
That matters for anyone handling bulk content — forwarding files, sharing archives, operating a service that redistributes material — where the contents are not individually checked.
The definition covers it twice
Paragraph (d) of the definition expressly includes a representation of sexual activity or sexual engagement with animals.
So material of this kind is pornography for the purposes of section 17 as well, and conduct within section 17(1) may be charged under either section. Section 20 exists because it goes further — adding recklessness, removing the purpose requirements, and providing no defence.
No defence provision
Section 17(2) provides a defence of bona fide law enforcement purpose or public benefit for three of its four limbs. Section 18(3) provides the same defence for the whole section.
Section 20 contains no defence at all.
That is a gap with practical consequences. An investigator who obtains such material in the course of an investigation has no statutory defence, and must rely instead on the opening words of the offence — that the conduct was not without lawful excuse or justification, because it was done under a lawful power.
The Part IV powers supply that basis: a warrant under section 32, the section 33 search powers, a section 35 production order, or a section 41 forensic tool order. But the answer is the lawful excuse rather than a defence, and the offence expressly catches conduct in excess of such an excuse.
Note also that section 20 carries no equivalent of the section 18(5) duty to destroy stored material once it is no longer lawfully required.
Two points of scope
- “Of himself or of another person” — paragraphs (a) to (d) refer to pornography of himself or of another person engaged in sexual activity with an animal. Producing or distributing material depicting oneself is expressly within the section.
- “An animal or animals” — no limitation by species. And the section 2 definition covers representations produced by or from computer graphics or other electronic or mechanical means, so synthetic depictions are included.
Section 20 is not listed in Schedule 2 and cannot be dealt with summarily.
Sources
- Cybercrime Code Act 2016 — ss 2, 17–20, 32–35, 41, 48; Schedule 2
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.