Sexual Intercourse With Young Person - Defendant in Position of Authority or Trust

Commonwealth law provides a maximum penalty of 10 years’ imprisonment for this offence, and sentencing practice is that those convicted should generally expect a term of full-time custody.

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 Engaging in Sexual Intercourse With Young Person:

Section 272.12 of the Commonwealth Criminal Code provides that a person commits this offence if:

• The person engages in sexual intercourse with another person (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 intercourse is engaged in outside Australia.

It is an offence also if:

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

What Actions Might Constitute Sexual Intercourse with Young Person Outside Australia – Defendant in Position of Trust or Authority?

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 above

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.

Section 272.3 of the Code provides that a person is in a position of trust or authority in relation to another person if:

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

Without limiting who is a grandparent of a person for the purposes of this section, a person (the first person) is the grandparent of another person if the first person is a parent or step-parent of a parent or step-parent of the other person.

What the Police Must Prove:

The police must prove that sexual intercourse was engaged in and that the young person it was engaged in with was 16 years of age or older, but not 18, 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 to Sexual Intercourse with Child Outside Australia:

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

• Denying that sexual intercourse occurred.
• It is a defence if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the child was at least 18. 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.
• It is a defence if the defendant proves 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.

Again, the defendant bears a legal burden in relation to this.

Which Court Will Hear Your Matter?

As the maximum penalty is 10 years’ imprisonment, the defendant can consent to the jurisdiction of the Magistrates Court, where the maximum sentence that can be imposed is two years’ imprisonment, or the matter can go the Supreme Court for trial before a judge and jury (and where the maximum penalty remains applicable).