Sexual Activity (Excluding Intercourse) With a Child Outside Australia

The Commonwealth Criminal Code provides that it is an offence to engage in sexual activity, excluding intercourse which is dealt with under another section of the legislation, with a child outside Australia.

For the purposes of this offence a child is defined as an individual who is less than 16 years old.

Penalties the court can impose

• Imprisonment (Jail – Full Time)
• Intensive Correction Orders (ICO)
• Suspended sentence
• Good behaviour order
• Fine order
• Non-conviction order
• Reparation Order
• Non-association order
• Deferred Sentence Order
• Combination Sentence

The Offence Of Sexual Activity With A Child Outside Australia:

Section 272.9 of the Criminal Code provides a maximum penalty of 15 years’ imprisonment. Conduct can either consist of engaging in sexual activity with a child, or engaging in conduct in relation to a child, with the intention that the conduct result in, and does result in, the child engaging in sexual activity in the presence of that person.

However, where there are aggravating factors to the circumstances, the penalty rises to 25 years under section 272.10. Aggravating factors in relation to this offence include:

• The child has a mental impairment;
• The defendant is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person (the Criminal Code comprehensively defines “position of trust or authority” to include: individuals in a guardian capacity, teacher, religious or spiritual leader, medical practitioner, member of police force, employer/manager); or
• The offence is committed on three or more separate occasions.

What Actions Might Constitute Sexual Activity with A Child?

Sexual activity not including 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 child, or between two other individuals in the presence of the chid;
• Groping or touching of a sexual nature, either between the individual and the child, or between two other individuals in the presence of the chid;
• An individual exposing themselves to a child for sexual gratification, for example, strip tease or masturbating;
• A child 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 child if he or she allows a child 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:

To convict someone of the offence, the Prosecution must prove each of the following elements beyond a reasonable doubt:

A person commits this offence if:

• The person engages in sexual activity (other than sexual intercourse) with another person (the child); and
• The child is under 16; and
• The sexual activity is engaged in outside Australia.

A person commits the offence also if:

• The person engages in conduct in relation to another person (the child); and
• That conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
• The child is under 16 when the sexual activity is engaged in; 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 for Sexual Activity With A Child Outside Australia:

• The defendant can show that they did not intend to derive sexual gratification from the child being present during the sexual activity. For example, a child lying awake in a dark room whilst other individuals engage in sexual activity in the same room unaware, or not turning their minds to the possibility, that the child was awake.
• The defendant believed the child to be at least 16 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 relation to aggravating factors, it is a defence if the defendant can prove they held a belief that the child did not have mental impairment. Again, 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.

• It is also a defence if the defendant can show that there was a valid and genuine marriage between themselves and the child in the location where the conduct constituting the offence occurred.

Which Court Will Hear Your Matter?

Sexual activity (not including intercourse) with a child outside of Australia is a strictly indictable matter and will be dealt with in the ACT Supreme Court.