Engaging in Penile Intercourse with a Child Under 16

In Queensland, a person cannot lawfully consent to a sexual act until they have reached the age of 16 years. Accordingly, anyone who has penetrative penile sex with a person under 16 years can be charged with the offence of ‘Engaging in penile intercourse with a child under 16’. This is the case even if the young person was ‘consenting’ to the sex. 

If a person is alleged to have committed this offence before 1 August 2023, they would have been charged with “Unlawful carnal knowledge” with a child under 16   Legislative amendments were made in 2023 which replaced the use of “carnal knowledge” with “penile intercourse.” 

What is Penile Intercourse with a Child Under 16?

Under section 215 of the Criminal Code in Queensland, any person who engages in, or attempts to engage in, unlawful penile intercourse with a child under the age of 16 years is guilty of an offence and is liable to a maximum penalty of 14 years imprisonment, (or life imprisonment if the child was under the age of 12 years).

Both men and women can be charged with this offence. The charge is designed to cater for any penetrative penile intercourse with a person under 16 and includes instances where:

• The accused person is a male, and they have inserted their penis into the vagina, vulva or anus of a complainant child; and 

•  Where the accused person is a female, and they have allowed the complainant child’s penis to penetrate their vagina, vulva or anus. 

What Must Be Proven?

For a person to be found guilty of Engaging In Penile Intercourse With A Child Under 16, the prosecution must prove each of the following elements of the offence:

• That the accused person had, or attempted to have, penile intercourse with or of the complainant; and

• That the penile intercourse was unlawful (not otherwise justified or excused by law, for example through the application of a lawful defence); and

• The penile intercourse happened when the complainant was under the age of 16.

If the prosecution cannot prove every single one of the above elements to the requisite standard (beyond a reasonable doubt), the person should be found not guilty. 

Notably, there is no requirement for prosecution to prove:

• The penetration was to any particular depth; or
• The penetration resulted in rupture of the complainant child’s hymen; or
• That the penetration resulted in or involved ejaculation. 

Which Court Will Hear the Matter?

In some cases, an accused person can have their charge of Engaging in Penile Intercourse With A Child Under 16 finalised in the Magistrates Court of Queensland. This is only possible if:

•  The accused person does not elect to have a trial by Jury in the District Court
•  The accused person is pleading guilty to the offence, and
•  the victim of the offence was 14 years or older at the time of the offence; and
•  The complainant child is not lineal descendant of, or the under care or guardianship of the

  offender

•  The complainant child is not a person with an impairment of the mind; and
• The Magistrates’ Court does not abstain from jurisdiction (this can occur if the person is likely to be sentenced to more than 3 years imprisonment, which is the Magistrates Court’s jurisdictional limit for terms of imprisonment).

In all other cases, because of the nature and seriousness of the charge of Engaging In Penile Intercourse With A Child Under 16, the matter must proceed on indictment and be finalised before the District Court of Queensland.

Maximum Penalty – Simpliciter v Aggravated Forms of Engaging in Penile Intercourse With a Child Under 16

In court you will often hear charges without circumstances of aggravation referred to as “simpliciter” offences, and charges with circumstances of aggravation referred to as “aggravated” offences. 

Without any circumstances of aggravation (simpliciter) the maximum penalty for the offence of Engaging In Penile Intercourse With A Child Under 16 Uears is 14 years imprisonment.

The maximum penalty for the offence then increases if any of the following legislatively identified circumstances of aggravation apply:

• The complainant child was under the age of 12 years at the time of the offending

• • In this case the maximum penalty increases to life imprisonment, unless it is charged as an attempt to engage in unlawful penile intercourse, in which case the maximum penalty will stay as 14 years imprisonment); 
• The complainant child is, to the knowledge of the offender, his or her lineal descendant or if the offender is the guardian of the child or, for the time being, has the child under his or her care; 

• • In this case the maximum penalty increases to life imprisonment, unless it is charged as an attempt to engage in unlawful penile intercourse, in which case the maximum penalty will stay as 14 years imprisonment); 

• The complainant child is a person with an impairment of the mind ( a disability that is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and results in a substantial reduction of the person’s capacity for communication, social interaction or learning; and the person needing support) 

• • In this case the maximum penalty increases to life imprisonment.

• Under the s 161Q of the Penalties and Sentences Act, it is also a circumstance of aggravation to the charge of Engaging in Penile Intercourse With A Child Under 16, if, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender: 

• • Was a participant in a criminal organisation; and 

• • they knew or ought reasonably to have known the act was being committed
    • at the direction of the criminal organisation or one of its participants, or
    • in association with 1 or more persons who were participants of the criminal organisation at the time the act was committed; or
    • for the direct or indirect benefit of a criminal organisation 

The above circumstance of aggravation was introduced some years ago to specifically target and more substantially punish the illegal conduct of motorcycle gangs and other criminal organisations. The impact of this circumstance of aggravation is that, if convicted of this offence with this circumstance of aggravation, the court must impose, as a part of your sentence, a base component (sentence of imprisonment imposed under the law) in addition to a mandatory 7 years’ imprisonment which has to be served cumulatively (or on top of) the base component term of imprisonment and  must be served wholly in a corrective services facility. 

Possible Defences

Importantly, because a child under 16 cannot legally consent to a sexual act in Queensland, consent is not a defence to this charge.  

1 – The Complainant was 16 years or older. Though it is not specifically a “defence” to the charge, because it is a provable element of this offence that the complainant was under 16 years of age at the time of the offence, police must prove the child was younger than 16 (usually through provision of a birth certificate). If they cannot prove the age of the Complainant child at the time of the offence, the accused person should not be criminally responsible for this charge. 

2 – At the time of the offence the Defendant held an honest and reasonable but mistaken belief that the Complainant was 16 years or older. (Mistake of fact – Section 24 of the Criminal Code))

3 – The person charged had a mental illness which deprived them of their capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not engage in penetrative sex with the Complainant child. (Insanity/ Unsoundness of mind – Section 27 of the Criminal Code);

Common Questions

Is it still illegal if the complainant (under 16) consented?

Yes, the law in Queensland is clear.  A person must be 16 or over to lawfully consent to a sexual act. Accordingly, even if a person under the age of 16 years freely and voluntarily engages in penile intercourse with you, you can still be charged and convicted of this offence.

Will I go to jail or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Engaging in Penile Intercourse With A Child Under 16 is a very serious criminal charge.  In Queensland:-

•  If a person is convicted of any offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment unless there are exceptional circumstances. 
• Any time the court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the court must record a conviction. This means the offence will appear on the person’s court outcomes, and the person will have recorded criminal history. 
• The offence of Engaging in Penile intercourse With A Child Under 16 is both a ‘serious violent offence’ and a ‘qualifying offence’ under the Penalties and Sentences Act. This means if you are convicted of this offence and sentenced for it, the court can, in some instances:
  • Make a serious violent offender declaration as a part of your sentence, requiring you to serve 80% of your sentence (or 15 years, whichever is less) in actual custody before being eligible to apply for parole; or
  • Impose an indefinite sentence instead of imposing a fixed term of imprisonment.

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions.  It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.  A conviction for an offence of a sexual nature can completely rule out certain career paths, particularly those vocations which require a blue card, where you are working with children, or other vulnerable communities. If you are convicted of an offence of this nature, you can expect to have your blue-card taken away from you. 

Will I be a reportable child sex offender if I am convicted of this offence?

Engaging In Penile intercourse With A Child Under 16 is a prescribed offence under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.  This means if you plead guilty or are found guilty of this offence, and you have a conviction recorded, or you are sentenced to a term of imprisonment or supervision, you will become a reportable offender under this Act. This means you will be on the Child Protection Offender Registry (‘CPOR’)  and you will have to report to police and keep police informed of your whereabouts and other personal details for a period of time.  How long you must be on this register depends on a number of factors. The period of time a person can be made subject to the CPOR reporting regime ranges from five years to an indefinite period of time.

What should I do if the police want to talk to me about a charge of Engaging In Penile Intercourse With A Child Under 16?

If you are contacted by police and they want to talk to you about a charge of Engaging In Penile Intercourse With A Child Under 16,  it’s important you receive good legal advice at the earliest opportunity and before speaking with police or anyone else about the matter.  Armstrong Legal provides expert legal advice and representation for offences of this nature. Contact Armstrong Legal now to arrange an obligation free consultation.