Sexual Intercourse With a Child Outside Australia

Commonwealth law provides a maximum penalty of 20 years’ imprisonment for this offence, rising to 25 years if the child has a mental impairment; or the perpetrator 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; or the offence is committed on three or more separate occasions.

Although prosecutions have, so far, been relatively few, the starting point for sentencing practice is immediate, full-time custody.

The Offence of Sexual Intercourse With A Child Outside Of Australia

Section 272.8 of the Criminal Code (Cth) provides that a person commits this offence if:

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

A person commits an 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 intercourse in the presence of the person; and
• The child is under 16 when the sexual intercourse is engaged in; and
• The sexual intercourse is engaged in outside Australia.

What Actions Might Constitute Sexual Intercourse with A Child Outside Of Australia?

The Criminal Code defines sexual intercourse as:

• The penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or
• The penetration, to any extent, of the vagina or anus of a person, by an object, carried out by another person; or
• Fellatio; or
• Cunnilingus; or
• The continuation of any activity mentioned in paragraph (a), (b), (c) or (d).

Sexual intercourse does not include an act of penetration that:

• Is carried out for a proper medical or hygienic purpose; or
• Is carried out for a proper law enforcement purpose.

The code defines vagina to include:

• Any part of a female person’s genitalia; and
• A surgically constructed vagina.

What the Police Must Prove

The police must prove that sexual intercourse was engaged in and that the child it was engaged in with was under 16 years of age and that the sexual intercourse happened outside Australia.

The police must prove that the alleged offender intended to engage in the intercourse or cause the child to engage in the intercourse with another person in the presence of the alleged offender.

Possible Defences

Possible ways to defend this charge include but are not limited to:

• Proving that at the time sexual intercourse or sexual activity occurred, the accused believed that the child was at least 16. The defendant bears a legal burden in relation to this, meaning that he or she must prove it on the balance of probabilities. In determining whether the defendant had the belief mentioned, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
• Proving that:
  • At the time of the sexual intercourse, there existed between the defendant and the child a marriage that was valid, or recognised as valid, under the law of:
    • The place where the marriage was solemnised; or
    • The place where the offence was committed; or
    • The place of the defendant’s residence or domicile; and

• When it was solemnised, the marriage was genuine.

The defendant bears the burden of proof in relation to these defences.

Which Court Will Hear Your Matter?

As the maximum penalties are 20 and 25 years’ imprisonment, this charge is strictly indictable and must be dealt with in the ACT Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.