Sexual Activity With Young Person Outside Australia

The Commonwealth Criminal Code Act provides that it is an offence for a person in a position of trust or authority in relation to a young person, to engage in sexual activity (excluding intercourse which is dealt with under another section of the legislation) with that young person outside Australia.

For the purposes of this offence a young person is defined as an individual between 16 and 18 years old.

Penalties the court can impose

The Offence Of Sexual Activity with a Young Person Outside Australia

Section 272.13 of the Criminal Code provides a maximum penalty of 7 years’ imprisonment. Conduct can either consist of an individual in a position of trust or authority engaging in sexual activity with young person, or engaging in conduct in relation to the young person who is under the defendant’s trust or authority, with the intention that the conduct result in, and does result in, the young person engaging in sexual activity in the individuals presence.

Section 272.3 of the Criminal Code defines an individual to be in a position of trust or authority in relation to a young person if they are:

the young person’s parent, step-parent, or grandparent; or
the young person’s foster parent, guardian or carer; or
a teacher engaged in the education of the young person; or
a religious official or spiritual leader providing pastoral care or religious instruction to the young person; or
the young person’s sports coach; or
a medical practitioner, nurse, psychologist, other health professional, counsellor or social worker providing professional services to the young person; or
a member of a police force or police service, or a person employed or providing services in a correctional institution, performing duties in relation to the young person; or
someone who is:
- an employer of the young person; or
- has the authority to determine significant aspects of the young person’s terms and conditions of employment; or
- has the authority to terminate the young person’s employment (whether the other person is being paid in respect of that employment or is working in a voluntary capacity).

What Actions Might Constitute Sexual Activity with a Young Person Outside Australia?

Sexual activity excluding intercourse covers a broad range of behaviours including any activity that is of a sexual or indecent manner involving the human body, bodily actions and/or functions, and does not necessarily require physical contact between the individuals engaged in the activity. This includes but is not limited to:

Kissing, either between the individual and the young person, or between two other individuals in the presence of the young person;
Groping or touching of a sexual nature, either between the individual and the young person, or between two other individuals in the presence of the young person;
An individual exposing themselves to a child for sexual gratification, for example, strip tease or masturbating;
A young person exposing themselves for an individual’s sexual gratification;

Additionally, an individual is considered to have engaged in sexual activity while in the presence of a young person if he or she allows a young person to see or hear them engaged in sexual activity.

Although such definitions do appear very broad, behaviour that is not captured by the legislation is typically considered to be behaviour where sexual gratification is not intended to be derived by the child’s presence, which also forms a defence to prosecution. This offers a measure of protection for innocent, everyday behaviours between consenting adults, for example, parents kissing in front of their children.

What the Police Must Prove

Under there legislation there are two separate charges that can be brought against an individual, either engaging in sexual activity with young person, or causing a young person to engage in sexual activity in the presence of the defendant. To convict someone of the offence, the Prosecution must prove all of the elements in relation to the specific charge being prosecuted beyond a reasonable doubt:

Engaging in sexual activity with young person

A person commits this offence if:

the person engages in sexual activity (other than sexual intercourse) with the young person; and
the young person is at least 16 but under 18; and
the person is in a position of trust or authority in relation to the young person; and
the sexual activity is engaged in outside Australia.

Causing a young person to engage in sexual activity in the presence of the defendant

A person commits an offence if:

the person engages in conduct in relation to the young person; and
that conduct causes the young person to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
the young person is at least 16 but under 18 when the sexual activity is engaged in; and
the person is in a position of trust or authority in relation to the young person; and
the sexual activity is engaged in outside Australia.

Where conduct means:

an act
an omission to perform an act; or
a state of affairs.

Engage in conduct means:

do an act; or
omit to perform an act.

Possible Defences

A person can defend a charge by arguing that:

They did not intend to derive sexual gratification from the young person being present during the sexual activity. For example, if the defendant is engaged in sexual intercourse with another person, and the young person walks into the bedroom of the defendant.
They believed the child to be at least 18 years old at the time of conduct constituting the offence. In determining this, the judge may take into account whether the belief held by the defendant was a reasonable one in the circumstances.

In all the above circumstances the defendant bears the legal burden of proving this defence, which requires it to be proven on the balance of probabilities.