Sexual offences

Serious penalties apply to sexual offence charges. If you have been charged, you should get legal advice ASAP about your options, any available defence or likely penalty. 

Note: The law changes from time to time and the below information may not be accurate at the time of your viewing. You should book an appointment now for advice, as different information may apply.

Indecent treatment of children under 16 s 210

What is the law? 

Section 210 of The Criminal Code provides: – 

(1) Any person who—

(a) unlawfully and indecently deals with a child under the age of 16 years; or

(b) unlawfully procures a child under the age of 16 years to commit an indecent act; or

(c) unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years; or

(d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or

(e) without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or

(f) without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years;

is guilty of an indictable offence.

(2) If the child is of or above the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 14 years.

(3) If the child is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 20 years.

(4) If the child is, to the knowledge of the offender, his or her lineal descendant or if the offender is the guardian of the child or, for the time being, has the child under his or her care, the offender is guilty of a crime, and is liable to imprisonment for 20 years.

(4A) If the child is a person with an impairment of the mind, the offender is guilty of a crime, and is liable to imprisonment for 20 years.

(4B)…

(4C)…

(5) If the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years.

(5A) If the offence is alleged to have been committed with the circumstance of aggravation mentioned in subsection (4A), it is a defence to the circumstance of aggravation to prove that the accused person believed on reasonable grounds that the child was not a person with an impairment of the mind.

(6) In this section— deals with includes doing any act which, if done without consent, would constitute an assault as defined in this Code.

What does the prosecution needs to prove?

s 210(1)(a) Indecent Dealing:-

  1. The accused dealt with the complainant.
  2. The dealing was indecent.
  3. The dealing was unlawful.
  4. The complainant was under 16 years.

(s 210(1)(b)) Unlawfully procuring:-

  1. The accused unlawfully procured a child.
  2. To commit an indecent act.
  3. The complainant was under 16 years.

s 210(1)(c) Permitting Indecent Dealing

  1. The accused permitted the complainant to deal with him.
  2. That such dealing was indecent.
  3. That such dealing was unlawful; ie not authorised, justified or excused by law. Eg the accused  must consciously allow the complainant to touch them.
  4. That the complainant was under the age of 16 years.

s 210(1)(d) Wilfully and unlawfully exposing a child under 16 to an indecent act

  1. The accused wilfully and unlawfully exposed a child.
  2. To an indecent act by the accused or another person.
  3. The complainant was under 16 years.

s 210(1)(e) Exposing a child under 16 to an indecent object etc

  1. The accused wilfully exposed a child.
  2. To an indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter.
  3. The complainant was under 16 years at the time.
  4. The accused had no legitimate reason to expose the complainant to the object etc.

s 210(1)(f) Taking an indecent photograph etc of a child under 16

  1. The accused took an indecent photograph or recorded, by means of any device, any indecent visual image of a child.
  2. The complainant was under 16 years at the time.
  3. The accused had no legitimate reason for taking the photograph or image.

 

Carnal knowledge with or of children under 16 s 215

Section 215 of The Criminal Code provides: –

(1) Any person who has or attempts to have unlawful carnal knowledge with or of a child under the age of 16 years is guilty of an indictable offence.

(2) If the child is of or above the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for 14 years.

(3) If the child is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for life or, in the case of an attempt to have unlawful carnal knowledge, to imprisonment for 14 years.

(4) If the child is not the lineal descendant of the offender but the offender is the child’s guardian or, for the time being, has the child under the offender’s care, the offender is guilty of a crime, and is liable to imprisonment for life or, in the case of an attempt to have unlawful carnal knowledge, to imprisonment for 14 years.

(4A) If the child is a person with an impairment of the mind, the offender is guilty of a crime, and is liable to imprisonment for life.

(4B)…

(4C)…

(5) If the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years.

(5A) If the offence is alleged to have been committed with the circumstance of aggravation mentioned in subsection (4A), it is a defence to the circumstance of aggravation to prove that the accused person believed on reasonable grounds that the child was not a person with an impairment of the mind.

What the prosecution needs to prove

1. The defendant had carnal knowledge of the complainant.

2. The carnal knowledge was unlawful. I.e. not authorised, justified or excused by law.

3. That the complainant was under 16.

What is the meaning of carnal knowledge?

Carnal knowledge means the insertion of the accused’s penis into the genitalia of the complainant;

(a) the offence is complete upon penetration;

(b) penetration to the slightest degree is sufficient;

(c) ejaculation is not necessary.

Procuring young person etc for carnal knowledge s 217

Using internet etc to procure children under 16 s 218A

Grooming children under 16 s 218B

Involving child in making child exploitation material s 228A

Making child exploitation material s 228B

Distributing child exploitation material s 228C

Possessing child exploitation material s 228D

Rape s 349

Section 349 of The Criminal Code provides: –

(1) Any person who rapes another person is guilty of a crime.

Maximum penalty — life imprisonment.

(2)A person rapes another person if—

(a)the person has carnal knowledge with or of the other person without the other person’s consent; or

(b)the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or

(c)the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.

(3) For this section, a child under the age of 12 years is incapable of giving consent.

(4)…

(5)…

What is the definition of consent for the purposes of section 349 (Rape)?
Section 348 of the Criminal Code provides:-

(1) In this chapter, “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give consent.

(2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained –

(a) by force; or

(b) by threats or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by an accused person that the accused person was the person’s sexual partner

What the prosecution needs to prove

1. The accused had carnal knowledge of or with the complainant.

2. Without her consent

OR

1. Penetrated the vulva, vagina or anus of the other person.

2. To any extent

3. With a thing or part of the accused’s body that is not a penis

4. Without the consent of the other person

OR

1. Penetrated the mouth of the other person

2. To any extent

3. With the accused’s penis

4. Without the consent of the other person

Attempt to commit rape s 350

Assault with intent to commit rape s 351

Sexual assaults s 352

Deprivation of liberty s 355

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