- Key Takeaways
- Consent and Child-sex Offences
- Child Sexual Assault Sexual Intercourse Offences
- Child Sexual Touching Offences
- Sexual Acts With or Towards a Child
- Persistent Sexual Abuse of a Child
- Child Grooming and Procurement Offences
- Sexual Offences Against Young Persons Under Special Care
- Child Prostitution Offences in NSW
- Child Abuse Material and Child Pornography Offences
- What is ‘Child Abuse Material’?
- Consequences of a Child-Sex Conviction
- False Child Sex Accusations and Reports to Police
- Options for Child-Sexual Assault Victims in NSW
Key Takeaways
It is a crime to be involved in any sexual activity with children because children are incapable of consenting according to law. Here we outline the consequences of being convicted of a child-sex offence, and everything you need to know about the penalties and defences of child-sex offences, including child abuse material, and child-grooming offences, both in NSW under the Crimes Act, and all across Australia under the Commonwealth Criminal Code.
This article outlines the law on child sex offences committed against children. Click here for a guide on the law, penalties, charges and defences for adult sexual assault and consent offences committed against adults.
Consent and Child-sex Offences
The law says that a child is incapable of giving informed consent to have sexual intercourse or being involved in any sexual activity for that matter. It is therefore a very serious crime to have sexual intercourse or any sexual activity involving a child.
Child Sexual Assault Sexual Intercourse Offences
It is a crime to have sexual intercourse with a child aged under the age of 16-years, according to sections 66A, 66B, 66C and 66D of the Crimes Act 1900 (NSW). The maximum penalties vary depending on the age of the child.
Penalties for Child Sexual Assault Offences
| Penalties for Child Sexual Intercourse in NSW | Standard Non-parole Period | |
|---|---|---|
| Child between the age of 10 – under 14 | 16 years imprisonment | 7 years |
| Child between the age of 10 – under 14 in circumstances of aggravation | 20 years imprisonment | 9 years |
| Child between the age of 14 – under 16 | 10 years imprisonment | NIL |
| Child between the age of 14 – under 16 in circumstances of aggravation | 12 years imprisonment | 5 years |
| Child under the age of 10 | Life Imprisonment | 15 years |
| Child under the age of 10: attempting or assaulting with intent to have sexual intercourse | 25 years imprisonment | 10 years |
‘Circumstances of aggravation’ means any of the following circumstances:
- Inflicting of actual bodily harm is occasioned to the child
- Threats are made to inflict actual bodily harm on the child
- The offender is in the company of another person at the time
- The child is under the offenders authority
- The child has a serious physical disability or cognitive impairment
- The offender took advantage of the child being intoxicated from drugs or alcohol
- The offender deprived the child of his/her liberty
- The offender committed the offence of break and enter into the house with the intention of committing the offence
How to Prove Sexual Assault Offences
| How to Prove Child Sexual Assault Offences | |
|---|---|
| 1. Sexual Intercourse | The accused had sexual intercourse, namely, sexual penetration of the other person’s genitalia or anus or mouth. |
| 2. With Child | The child at the time was under the age of 16-years. |
Defences to Child Sexual Assault Charges
| Child Sexual Assault Defences | |
|---|---|
| Mistaken belief of age | Honest and reasonable mistake of age is a defence for charges of s66C(3) where child is aged between 14 and under 16 years.
You will be found not guilty of having sex with a child under the age of 16, if in a set of circumstances, you honestly believed that the child was aged at least 16, where in those circumstances, it was reasonable to have made the mistake about the age. To succeed in this defence, the circumstances of your belief must be raised in evidence. Once raised, the prosecution will have the job of proving that you either didn’t honestly believe the child was at least 16, or that it was not reasonable for you to have held that belief in the circumstances. This defence is also well known in the case of Proudman v Dayman [1941] HCA. |
| Similar Age Difference Defence | Where the alleged victim is aged at least 14 and under 16, this defence can apply if the age difference between the alleged victim and the accused is no more than 2 years. |
| Mistaken Identity | You have been mistakenly accused as the perpetrator. |
| No sexual intercourse | This defence applies where there was no ‘sexual intercourse’ that took place. |
| Medical purpose | The sexual intercourse occurred as a result of a consensual medical purpose. |
| Duress or Necessity | The sexual intercourse occurred in the context of duress or necessity. |
| Mental Illness Defence | Your mental condition precluded you from being able to know the rightness or wrongness of your actions or you had no control of your conduct due to a medical condition rendering your conduct involuntary. |
Examples of Sexual Intercourse with Child Defence Case
Imagine a circumstance where you’ve met up with a person who says that he/she is 16-years of age.
You take that person back to your home consensually, where you both engage in consensual sexual intercourse.
The next day, you’re woken by the sound of police knocking on your door.
The police are there to arrest and charge you for engaging in sexual intercourse with a child who was actually under the age of 16.
You find out that the person you had sex with the night before has lied to you about their age. Where in fact he/she was actually 15, which is below the legal age of consent.
This is what happened in the case of CTM v The Queen.
Case Example of CTM v The Queen on Honest and Reasonable Mistake of Age Defence
After a night out, a minor aged 15 at the time, and her two friends went back to a flat owned by a man named CTM aged 17 at the time.
At some point during the night, the minor told CTM that she was 16-years old.
CTM, the two of his friends, and the minor engaged in sexual intercourse that night.
CTM was later charged with the offence of sexual intercourse with a person aged between 14 and less than 16.
When arrested, CTM told police that the girl told him that she was 16 and in year 10. He wanted to rely on the defence that he was honestly and reasonably mistaken about her age,
Despite telling the police this in his initial interview, lawyers in the case failed to cross-examine (ask questions) the girl on her lies, and CTM was unfortunately found guilty of the charge, he was given an 18-month imprisonment sentence which was wholly suspended on condition he enters into a good behaviour bond for 18-months.
Unfortunate for CTM, sufficient evidence was not raised in order to show that he was honestly mistaken. This was because no evidence about his honest and reasonable mistaken belief was led in his case.
Had this evidence been led in his trial, the prosecution would then have been required to negate the honestly and reasonableness of his belief.
Court have recognised this defence many times over the years. The problems people can face with these issues was summarised in a Magistrates cases paper here:
“A problem is that it is not easy to be sure that a young person is over or under the age of 16 years. The age of children is not stamped on their foreheads. It is common knowledge that, by their mature appearance, many children who are under the age of 16 years can and do deceive others into believing honestly that they are above that age. Moreover, as such children can and do behave in that way, it is not easy to be sure that they will not have made their way into someplace where they are not allowed to be. To use the present case as an example, it’s not easy to be sure that, in a public aquatic centre, there will be nobody under the age of 16 years in a spa, sauna and steam room area which is reserved for people over that age.”
Child Sexual Touching Offences
It’s a crime to sexually touch a child under the age of 16 in NSW. Equally, it’s a crime to incite an underage child to sexually touch a person or to incite a person to sexually touch an underage child, according to sections 66DA and 66DB of the Crimes Act 1900 (NSW). The maximum penalties are heavier if this occurs in circumstances of aggravation, according to section 66DE.
Penalties for Child Sexual Touching
| Penalties for Child Sexual Touching in NSW | Standard Non-parole Period | |
|---|---|---|
| Child between the age of 10 – under 16 | 10 years imprisonment | NIL |
| Child under the age of 10 | 16 years imprisonment | 8 years |
How to Prove a Child Sexual Touch Offence
| How to Prove a Child Sexual Assault Offence | |
|---|---|
| 1. Intentionally touched | The accused intended to touch the child or intended to incite someone to do so. |
| 2. Touch was ‘sexual’ | The touch was ‘sexual’ in the sense that a reasonable person will consider it was ‘sexual’ taking into account area touched, body part used to do the touching, whether it was for sexual gratification or arousal and any other aspects that suggest it was sexual. |
Defence to Child Sexual Touching
| Defences to Child Sexual Touching | |
|---|---|
| Exigencies of life defence | Physical contact was an inevitable part of the exigencies of everyday life i.e. conduct generally acceptable as part in the conduct of daily life. |
| Defence of Similar Age | The age difference between the alleged victim and the accused is no more than 2 years and the alleged victim’s age is at least 14 years. |
| Unintentional involuntary touching | i.e. spontaneous reflex actions, sleepwalking, post-traumatic loss of control from head injury, epilepsy, or transient dissociation from a recognised psychological condition. |
| Self-defence | If the accused person reacted out of an honest belief it was necessary to protect him/herself and in circumstances, their response was reasonable in the circumstances he/she perceived it to be at the time. |
| Lawful Correction | May apply in limited circumstances. i.e. As an assault to a child by a parent or teacher if the correction was reasonable in the manner and warranted in the circumstances. The age and health of the child will be considered, also considered will be the body part touched and body part used to do same relevant to the issue of whether it was ‘sexual’. |
| Mistaken Identity | The accused person is not the perpetrator of the crime. |
| The Touching was not ‘sexual’ | A reasonable person given the circumstances surrounding the allegation would not consider it sexual. |
| Medical or hygienic purpose | The alleged sexual touching was part of a legitimate consensual medical procedure. |
| Duress or Necessity | The sexual touch occurred in the context of a duress or necessity. |
| Mental Illness Defence | The accused person’s mental condition precluded him/her from being able to know the rightness or wrongness of their actions or having no control of their conduct due to a medical condition rendering their conduct involuntary. |
Sexual Acts With or Towards a Child
It’s a crime to carry out a sexual act either with or towards a child in NSW. Equally, it’s a crime to incite a child to carry out a sexual act with or towards a person, or to incite a person to do same towards a child, according to section 66DC Crimes Act 1900 (NSW). The penalties are heavier for these offences in ‘circumstances of aggravation’.
‘Circumstances of aggravation’ means the following circumstances:
- The offender intentionally or recklessly inflicts actual bodily harm on the child or on anyone else present at the time.
- The offender threatens to inflict actual bodily harm on the child, or any person present by means of an offensive weapon or instrument at the time.
- The offender is in the company of another person.
- The child is under the offenders authority.
- The child has a serious physical disability of cognitive impairment.
- The offender took advantage of the child being intoxicated from alcohol or drugs in order to commit the offence.
- The offender deprived the child’s liberty.
- The offender had committed a ‘break and enter’ in respect to the house with the intent of committing the offence or any other serious indictable offence.
It’s a crime to do a sexual act with or towards a child knowing it’s being filmed for the purposes of the production of child abuse material, according to section 66DF Crimes Act 1900 (NSW).
Penalties for Sexual Acts with Children Offences
| Penalties for sexual acts towards a child in NSW | |
|---|---|
| Child between the age of 10 – under 16 | 2 years imprisonment |
| Child under the age of 10 | 7 years imprisonment |
| Aggravate Sexual Act to Child aged 10 – under 16 | 5 years imprisonment |
| Sexual Act for Production of Child Abuse Material | 10 years imprisonment |
How to Prove the Offence of a Sexual Act with a Child
| How to Prove a Child Sexual Assault Offence | |
|---|---|
| 1. Intentionally carried out an act | The accused intended to carry out an act either with or towards a child or intended to incite someone to do so. |
| 2. The act carried out was ‘sexual’ | The act carried out was ‘sexual’ in the sense that a reasonable person will consider it was ‘sexual’, taking into account what the act was, where it was committed, how it was done, body part used to do it, and whether it was for sexual gratification or arousal, and any other aspects that suggest it was sexual. |
Defences to a Charge of a Sexual Act with a Child
| Defences to Child Sexual Touching | |
|---|---|
| Exigencies of life defence | The physical act was an inevitable part of the exigencies of everyday life i.e. conduct generally acceptable as part in the conduct of daily life. |
| Unintentional involuntary act | i.e. spontaneous reflex actions, sleepwalking, post-traumatic loss of control from head injury, epilepsy, or transient dissociation from a recognised psychological condition. |
| Mistaken identity | The accused person is not the perpetrator of the crime. |
| The act was not ‘sexual’ | A reasonable person would not consider it ‘sexual’. |
| Duress or Necessity | The sexual act occurred in the context of a duress or necessity. |
| Mental Illness Defence | The accused person’s mental condition precluded him/her from being able to know the rightness or wrongness of their actions or had no control of their conduct due to a medical condition rendering their conduct involuntary. |
Persistent Sexual Abuse of a Child
It’s a crime for an adult to maintain an unlawful sexual relationship with a child, namely, a relationship in which an adult engages in 2 or more ‘unlawful sexual acts’ with or towards a child over any period, according to section 66EA Crimes Act 1900 (NSW). A charge for this offence can only commence either by or with the approval of the DPP.
An unlawful sexual act includes any of the above outlined child sex offences.
Penalties for Persistent Sexual Abuse of Children
| Penalties for Persistent Sexual Abuse of a Child | |
|---|---|
| Unlawful sexual relationship of a child | Life Imprisonment |
How to Prove this Charge
| Penalties for Persistent Sexual Abuse of a Child | |
|---|---|
| 1. An ‘unlawful sexual relationship’ existed | There are at least 2 or more unlawful sexual acts with or towards a child over any period. |
| 2. This relationship existed between an adult and a child | The unlawful sexual relationship existed between an adult and a child. |
Defences to this Charge
| Defences to Persistent Sexual Abuse of a Child Charge | |
|---|---|
| Unintentional involuntary act | The accused person’s alleged actions were involuntary. i.e. sleepwalking, post-traumatic loss of control from head injury, epilepsy, or transient dissociation from a recognised psychological condition. |
| Mistaken identity | The accused person is not the perpetrator of the crime. |
| Duress or Necessity | The accused alleged conduct was out of a duress or necessity. |
| Mental Illness Defence | The accused person was unaware of the rightness or wrongness of his/her actions or didn’t have control of his/her conduct because of a medical condition which meant his/her actions were involuntary due to a mental illness. |
Child Grooming and Procurement Offences
It is a crime to intentionally procure a child for unlawful sexual activity in NSW. It is also a crime to groom a child or to meet a child after grooming, according to sections 66EB(2), 66EB(2A), 66EB(3) and 66EC(2) Crimes Act 1900 (NSW).
Penalties for Child Grooming Offences
| Penalties for Child Grooming in NSW | |
|---|---|
| Grooming Children (child aged under 14) | 12 years imprisonment |
| Grooming Children (child aged at least 14) | 10 years imprisonment |
| Meeting Child Following Grooming (child aged under 14) | 15 years imprisonment |
| Meeting Child Following Grooming (child aged at least 14) | 12 years imprisonment |
| Procuring Child (child aged under 14) | 15 years imprisonment |
| Procuring Child (child aged at least 14) | 12 years imprisonment |
| Grooming a person for Unlawful Sexual activity with a Child under the Person’s Authority (child aged under 14) | 6 years imprisonment |
| Grooming a person for Unlawful Sexual activity with a Child under the Person’s Authority (child aged at least 14) | 5 years imprisonment |
How to Prove Child Grooming Offences
| How to Prove Child Grooming Offence | |
|---|---|
| Child Grooming | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Meeting Child Following Grooming | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Procuring a Child | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Grooming a Person for Unlawful Sexual Activity with a Child Under the Person’s Authority | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
Defences to Child Grooming Charges
| Defences to Child Grooming Charges | |
|---|---|
| Reasonable belief defence | The accused person held an honest and reasonable belief that the child was not a child. |
| Lack of Intention | The accused person’s actions were done without an intention of grooming or procuring the child. |
| Mistaken identity | The accused person is not the perpetrator of the crime. |
| Duress or Necessity | The accused alleged conduct was conducted due to duress or necessity. |
| Mental Illness Defence | The accused person was unaware of the rightness or wrongness of his/her actions or didn’t have control of his/her conduct because of a medical condition which meant his/her actions were involuntary due to a mental illness. |
Sexual Offences Against Young Persons Under Special Care
It is a crime to have sexual intercourse or to sexually touch a young person aged at least 16 but less than 18-years who is under the special care of the offender, according to sections 73 and 73A Crimes Act 1900 (NSW).
A young person will be considered to be under special care if any of the following circumstances apply:
- The offender is not the young person’s close family member. A close family member is a parent, son, daughter, sibling including half brother or sister, grandparent, grandchild, being such a family member from birth. Non-close family members here would include the same who is not a family member from birth. (this only applies to the offence of sexual intercourse with a young person under special care).
- The offender is the young person’s teacher or principal of the school
- The offender performs work at the school where the young person is under the offender’s authority i.e. in the care or supervision.
- The offender’s established a personal relationship with the young person in connection with the provision of religious, sporting, musical or other instruction in which the young person is under the offender’s authority.
- The offender is a custodial officer of an institution that the young person is an inmate in.
- The offender is a health professional, and the young person is the offender’s patient.
- The offender performs work for an organisation that provides residential care to young person’s placed in out-of-home care and the offender has established a personal relationship with the young person in connection with the provision of that residential care where the young person is under the offender’s authority.
- The offender performs work for an organisation that provides refuge or crisis accommodation and the offender’s established a personal relationship with the young person in connection with that, where the young person is under the offender’s authority.
Penalties for Sex Offences Against Young Persons Under Special Care
| Penalties for Sex Offences Against Young Persons Under Special Care in NSW | |
|---|---|
| Sexual Intercourse with Young Person Under Special Care (aged at least 16 and 17) | 8 years imprisonment |
| Sexual Intercourse with Young Person Under Special Care (aged at 17 and under 18) | 4 years imprisonment |
| Sexually Touch Young Person Under Special Care (aged at least 16 and under 17) | 4 years imprisonment |
| Sexually Touch Young Person Under Special Care (aged at least 17 and under 18) | 2 years imprisonment |
How to Prove this Offence
| How to Prove these Offences | |
|---|---|
| Sexual Intercourse with Young Person under Special Care | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Sexually Touch Young Person Under Special Care | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
Defences to Sex Offences Against Young Persons Under Special Care
| Defences to Sex Offences Against Young Persons Under Special Care | |
|---|---|
| Married | The accused person and young person are or were married at the time of the alleged sexual conduct |
| Similar Age Defence | The alleged victim is aged at least 14, and the age difference between the alleged victim and the accused person is no more than 2 years. |
| Mistaken identity | The accused person is not the perpetrator of the crime. |
| Duress or Necessity | The accused alleged conduct was conducted due to duress or necessity. |
| Mental Illness Defence | The accused person was unaware of the rightness or wrongness of his/her actions or didn’t have control of his/her conduct because of a medical condition which meant his/her actions were involuntary due to a mental illness. |
Child Prostitution Offences in NSW
It is a crime to promote or engage in acts of child prostitution in NSW. It’s also a crime to obtain a benefit from child prostitution or to use premises for child prostitution, according to sections 91D, 91E and 91F Crimes Act 1900 (NSW).
An act of child prostitution is any sexual service, whether or not involving an indecent act that’s provided by a child for the payment of money, that can reasonably be considered to be aimed at the sexual arousal or gratification of a person other than the child. It does not matter whether or not payment is actually made.
A child here means any person under the age of 18 years.
Penalties for Child Prostitution
| Penalties for Child Prostitution in NSW | |
|---|---|
| Promoting or Engaging in acts of Child Prostitution (if child aged at least 14 or over) | 10 years imprisonment |
| Promoting or Engaging in acts of Child Prostitution (if child aged under 14) | 14 years imprisonment |
| Obtaining Benefit from Child Prostitution (if child aged at least 14 or over) | 10 years imprisonment |
| Obtaining Benefit from Child Prostitution (if child aged under 14) | 14 years imprisonment |
| Use Premises for child prostitution | 7 years imprisonment |
How to Prove Child Prostitution Offences
| How to Prove Child Prostitution | |
|---|---|
| Promoting or Engaging in acts of Child Prostitution | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Obtaining Benefit from Child Prostitution | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| Use Premises for child prostitution | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
Defences to Child Prostitution Charges
| Defences to Child Prostitution Charges | |
|---|---|
| Did not know | Relevant to a charge of using premises for child prostitution: The accused person will be not guilty if he/she did not know it was being so used for this; or didn’t know that a child was participating in such an act; or didn’t know the act was this type of act; or that upon discovering this, he/she used all due diligence to prevent the child from doing it. |
| Money received for lawful services | This applies only to the charge of obtaining benefit from child prostitution: if the accused received the money or other material benefit for a lawful service or was received it in accordance with a court order. |
| Mistaken Identity | The accused person is not the actual perpetrator of the crime. |
| Duress or Necessity | The accused alleged conduct was conducted due to duress or necessity. |
| Mental Illness Defence | The accused person was unaware of the rightness or wrongness of his/her actions or didn’t have control of his/her conduct because of a medical condition which meant his/her actions were involuntary due to a mental illness. |
Child Abuse Material and Child Pornography Offences
It is a crime to use children for the production of child abuse material. It is also a crime to produce, disseminate or possess child abuse material in NSW, according to sections 91G, and 91H Crimes Act 1900 (NSW).
Child abuse material offences are outlined both in NSW and Commonwealth laws in Australia.
Under the Commonwealth law, the Criminal Code Act 1995 (Cth) (CCA) prescribes heavy penalty by prohibiting the use of carriage services for child abuse material, according to sections 474.22, 474.22A, 474.23, 474.23A, 474.25, 474.25A, 474.25C, 474.26, 474.27, 474.27A of the Commonwealth Criminal Code 1995 Cth (CCC), which also outlines available defences.
The commonwealth law considers a child as under the age of 18, whereas the NSW state child abuse material laws consider a child as someone under the age of 16.
What is ‘Child Abuse Material’?
Commonwealth ‘Child Abuse Material’
The CCA defines ‘child abuse material’ into 7 main categories in section 473.1 of the CCC, namely, ‘child abuse material’ is material that:
- Is a doll or other object, that resembles a child (under the age of 18), or a part of the body of a child; or
- Describes or depicts any one of the following, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
- A sexual organ or anal region of a person who is, or implied to be, a child, or the breasts of a female person who is, or implied to be a child, or
- A person who is, or implied to be a child who is engaged in, or implied to be engaged in a sexual pose or activity, or is in the presence of a person who is engaged in, or implied to be engaged in a sexual pose or activity, or
- The dominant characteristic of which is the depiction for a sexual purpose of a sexual organ or anal region of a person who is or appears to be a child, representation of such a sexual organ or anal region, or the breasts or a representation of the breasts of a female who is or appears to be a child, or
- that depicts a person or representation of a person who is or appears to be a child and is engaged in or appears to be engaged in a sexual pose or activity, or is in the presence of a person who is engaged in, or appears to be engaged in, same, or
- describes a person who is or implied to be a child and is or implied to be a victim of torture, cruelty or physical abuse, or
- depicts a person or a representation of a person who is or appears to be a child and is or appears to be a victim of torture, cruelty or physical abuse.
NSW ‘Child Abuse Material’
Child abuse material’ is material that depicts or describes the following, in a way that reasonable persons would regard in all the circumstances as ‘offensive’:
- A person who either is, appears to be, or is implied to be, a child (under the age of 16):
- 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.
How to Decide if Reasonable Persons Would Regard it as Offensive?
When deciding if the material is ‘offensive’ according to reasonable persons, the following matters are considered:
- The standards of morality, decency and propriety generally accepted by reasonable adults,
- If the material has any literary, artistic, educational, journalistic merit. If journalistic merit, then is it material as a record or report of a matter of public interest?
- The general character of the material, including, if it’s of a medical, legal or scientific character?
Meaning of ‘Offensive’
‘Offensive’ is conduct ‘calculated or likely to arouse significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances’; noting a reasonable person is someone the law considers as reasonably tolerant and understanding, and reasonably contemporary in his/her actions, according to the case of Monis v The Queen [2013] HCA 4.
What are ‘Private Parts’?
Private parts of a person are genitals, anal, whether or not covered by underwear or completely naked. It also includes the breasts of a female person or transgender or intersex person who identifies as female, whether or not the breasts are sexually developed.
However, ‘breasts of a female person’ does not include the chest of a pre-pubescent girl (Turner v R [2017] NSWCCA 304).
Penalties for Child Abuse Material
| Penalties for Child Abuse Material | ||
|---|---|---|
| Legislation | Offence | Maximum Penalty |
| s91G(1) Crimes Act | Using Child for Production of Child Abuse Material (child under the age of 14) | 14 years jail |
| s91G(2) Crimes Act | Using Child for Production of Child Abuse Material (child aged at least 14) | 10 years jail |
| s91H Crimes Act | Production, Dissemination or Possession of Child Abuse Material | 10 years jail |
| 474.22 CCC | Using Carriage Service for Child Abuse Material | 15 years jail |
| 474.22A CCC | Possessing or Controlling Child Abuse Material Obtained Using a Carriage Service | 15 years jail |
| 474.23 CCC | Possess, Control, Produce, Supply or Obtain Child Abuse Material for use
through a Carriage Service |
15 years jail |
| 474.23A CCC | Conduct for the Purposes of Electronic Service Used for Child Abuse Material | 20 years jail |
| 474.25 CCC | Obligations of Internet Service Providers and Internet Content Hosts | $177, 600 |
| 474.25A CCC | Using Carriage Service for Sexual Activity with Child Under the Age of 16 | 20 years jail |
| 474.25C CCC | Using Carriage Service to Prepare or Plan to Cause Harm to, Engage in Sexual Activity with, or Procure for Sexual Activity, Child Under the Age of 16 | 10 years jail |
| 474.26 CCC | Using Carriage Service to Procure Child Under the Age of 16 | 15 years jail |
| 474.27 CCC | Using Carriage Service to ‘Groom’ Child Under the Age of 16 | 15 years jail |
| 474.27AA CCC | Using Carriage Service to ‘Groom’ another person to Make it Easier to Procure Child Under the Age of 16 | 15 years jail |
| 474.27A CCC | Using Carriage Service to Transmit Indecent Communication to Child Under the Age of 16 | 10 years jail |
How to Prove Child Abuse Material Offences
Below is a summary of the common child abuse material offences, and how to prove them in court.
| How to Prove Child Abuse Material Offences | |
|---|---|
| s91G Crimes Act: Using Child for Production of Child Abuse Material | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s91H Crimes Act: Produce, Disseminate or Possess Child Abuse Material | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.22 CCC: Use Carriage Service for Child Abuse Material | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.22A CCC: Possess or Control Child Abuse Material Obtained Using a Carriage Service | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.25A CCC: Use Carriage Service for Sexual Activity with Child Under 16 | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.26 CCC: Use Carriage Service to Procure Child Under 16 | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.27 CCC: Use Carriage Service to ‘Groom’ Child Under 16 | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
| s474.27A CCC: Use Carriage Service to Transmit Indecent Communication to Child Under 16 | In order for an accused person to be found guilty, the prosecution must prove the following elements beyond reasonable doubt:
|
Defences to Child Abuse Material
Below is an outline of common defences to child abuse material charges in Australia.
| Defences to Child Abuse Material Charges | |
|---|---|
| Age and Relationship with Person Depicted in Material | You will be not guilty if you possessed child abuse material when you were under 18-years of age, provided a reasonable person would consider the possession of it as acceptable having regard to the circumstances of you coming into possession of it, your relationship with the person depicted in it and other factors outlined in s91HAA CA. |
| Did Not Know | It is a defence to a charge of produce, possess or disseminate child abuse material if you did not know, and could not reasonably be expected to have known that you possessed, disseminated or produced it. |
| Unsolicited Possession & Getting Rid of It As Soon As Possible | It is a defence to a charge of possessing child abuse material if it came into your possession unsolicited and, as soon as becoming aware of its nature, you took reasonable steps to get rid of it. |
| Public Benefit Defence & Law Enforcement Purposes | It is a defence to a charge of possessing, disseminating or producing child abuse material if the material you engaged in was of public benefit provided that it did not extend beyond that. i.e. enforcing the law, investigation of breaches of the law, administration of justice. |
| Approved Research Defence | It is a defence to the charge of possessing, disseminating or producing child abuse material if the conduct you engaged in for this was necessary for or of assistance in scientific, medical or education research that’s approved by the Attorney General in writing for this purpose, provided it doesn’t contravene any conditions of such approval. |
| Child Abuse Material of Yourself | It is a defence to a charge of possessing child abuse material if the only person depicted in the material is you. |
| Under-age | It is a defence to a charge of production or disseminating child abuse material if this occurred when you were under 18-years of age, and if the only person depicted in the material is you. |
| Honest and Reasonable Mistake of Age Defence | It is a defence to a charge of engaging in sexual activity using a carriage service charge or use carriage service to groom or procure a child if you honestly and reasonably believed that the child was at least 16-years of age. |
Consequences of a Child-Sex Conviction
Spent Convictions: Any child sex offence conviction cannot become ‘spent’. Criminal convictions, except for sex offences, are capable of being ‘spent’, which mean, upon being ‘spent’, they will no longer be considered a criminal conviction and no longer required to be disclosed to anyone, generally speaking. A conviction will only become ‘spent’ in NSW upon the completion of a 10-year crime-free period from the date of last conviction.
Working With Children Check Clearances: A child sex offence conviction will preclude you from getting a working with children check clearance (WWCC) in NSW from the Children’s Guardian. This will preclude you from ever working in a child-related role. The Children’s Guardian will not grant a working with children check clearance if you’ve been charged or convicted of a child sex offence, according to section 18 Child Protection (Working with Children) Act 2012 (NSW). If you already have a working with children’s check clearance, and you’ve been convicted or charged for a child sex offence, the Children’s Guardian will cancel your clearance, pending the court outcome.
Child Protection Register: Upon being convicted of a child sex offence, you will be classified as a ‘registrable person’ under the Child Protection (Offenders Registration) Act. This will mean, that your name and details of the charge and court outcome will be recorded on the child protection register. You will then be required to report to the police for a certain period of time, depending on the charge. If you’re a repeat child sex offender, you can be required to report for the rest of your life. There are strict conditions you must also comply with.
High Risk Offenders: If you’re classified as a high risk offender or high risk sex offender, and have been sentenced to imprisonment for the offence, the court may order that you be further supervised in the community upon release from prison or that your detention continue, under sections 5B and 5C of the Crimes (High Risk Offenders) Act 2006 (NSW). Before this can happen, amongst other things, the court must be satisfied that there is a high probability that you pose an unacceptable risk of committing a further serious offence.
False Child Sex Accusations and Reports to Police
People do, more often than you may think, make false police reports of sexual assault accusations against innocent people. It causes police to investigate and use up significant resources funded by hard working tax-payers. It can also then result in an innocent person’s life being turned completely upside down, placed into custody, and forever face the social stigma of horrendous criminal charges. The reputation of a person can therefore be tarnished in a day.
The law recognises all this, which is why those who are guilty of making false criminal accusations to authorities will be subject to severe penalties. Section 314 of the Crime Act 1900 (NSW) prescribes up to 7-years imprisonment to anyone who makes a false accusation with the intention that the accusation result in an investigation of an offence, knowing that the person accused to be innocent.
Options for Child-Sexual Assault Victims in NSW
The NSW Police Force provide a number of options for victims of sexual assault. This includes:
1. Contact the nearest police station to make a formal complaint for police to then commence a formal investigation. Police will require a written/typed statement from the victim. Police will also arrange medical and/or counselling support; or
2. Alternatively, a victim can fill out a sexual assault reporting options questionnaire. The investigation can lead to an arrest and charge. This will not result in a formal investigation, but it does help police be proactive. It can also help police find the perpetrator. If police believe that the perpetrator has been found, then the victim may be discretely contacted to give the option of taking it further; or
3. A victim may approach a support service. NSW Rape Crisis Centre can be contacted on 1800 424 017.