Maintaining a Sexual Relationship with a Child

Maintaining a sexual relationship with a child, also called “maintaining”, is created by subsection 229B(1) of the Criminal Code Act 1899 which provides that:

“(1) Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.

Maximum penalty—life imprisonment.”

An unlawful sexual relationship means a relationship that involves more than 1 unlawful sexual act over any period (for example a brief series of acts of indecent treatment or the perpetration of penetrative sexual acts over a protracted period).

If the unlawful sexual acts which constitute the relationship do not involve anal penetration, the “prescribed age” for the purpose of the offence of maintaining is 16. If the unlawful acts do involve anal penetration, the prescribed age rises to 18.

A charge of maintaining is often laid alongside substantive charges for sexual offences, such as indecent treatment of a child or rape, though even where it is a stand-alone charge, offenders can expect to serve significant periods in jail in all but the most exceptional cases.

What Actions Might Constitute Maintaining A Sexual Relationship with a Child?

The offence of maintaining is commonly committed by an adult perpetrating more then one sexual offence against a child over a period of time. The offence can be committed through acts of indecent treatment, for example repeatedly touching a child on their genitals over a period of days, through to more protracted acts of sexual penetration (which might also give rise to charges of rape).

A common example of the offence is the case of an older family member, perhaps an uncle or a step-father, who engages in penetrative sexual acts with their younger relative over a period of years. While not impossible, it is less common for a charge of maintaining to be laid in cases where the sexual offending is less serious (for example non-penetrative touching of the genitalia) and occurs only sporadically, or over a short period (charges of indecent treatment of a child are more likely to be laid in that case).

What the Police Must Prove

To convict you of maintaining it must be proved that there was a relationship between you and a child and that this relationship involved unlawful sexual acts. It is not necessary for the prosecution to prove each and every sexual offence alleged to constitute the relationship but they must establish, through evidence, that unlawful sexual acts took place in order to establish the charge.

Possible Defences Maintaining a Sexual Relationship with a Child

As with all criminal charges, there is a default “defence” to a charge of maintaining where the prosecution evidence fails to prove all the elements of the offence beyond a reasonable doubt.

Additionally, if the offence is alleged to have been committed against a child over the age of 12, it is a complete defence to prove that you reasonably believed the child was over the age of 16  at the time of the offending conduct.

Which Court Will Hear Your Matter?

A charge of maintaining a relationship with a child will be heard and determined in the District Court.

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