CHILD SEXUAL OFFENCES

In New South Wales, any circumstances where an adult carries out a sexual manner or act upon a victim under the age of 16 years at the time of the assault, will be charged with a child sexual offence.

The definition of sexual intercourse will be consistent with that of adult sexual assault. However, it is crucial to note that unlike cases involving adults, prosecution does not need to establish lack of consent from the victim. This significant distinction ultimately protects children from grooming by adults and acknowledges that it is illegal for an adult to engage in sexual activities with children, regardless of the child's apparent consent at the time.

WHAT ARE CHILD SEXUAL OFFENCES?

A child sexual offence is an offence of a sexual nature committed against a child and includes:

  • Indecent treatment of a child

  • Carnal knowledge with or of a child

  • Rape

  • Incest

  • Grooming a child (or their parent or carer)

  • Making child exploitation material

  • Maintaining a sexual relationship with a child

Indecent treatment of a child covers a range of conduct of a sexual nature. Examples may include:

  • fondling a child in a sexual manner

  • having the child touch a sexual body part

  • taking a sexual photograph of a child.

Grooming a child (or their parent or carer) refers to the way some offenders form relationships and build trust with children, parents, carers, teachers and other children in order to get close to a child and create the opportunity for sexual abuse. It can be difficult to identify because the behaviour itself may not be abusive or sexual. Grooming can often occur online.

PENALTIES FOR CONVICTION

Children Sexual Assault

Sexual intercourse with a child under 10 attracts a maximum penalty of imprisonment for life. Attempting to have sexual intercourse with a child under 10 or assaulting a child under 10 with intent to have sexual intercourse, attracts a maximum penalty of 25 years imprisonment.

Sexual assault of a child between 10 and 16 or assault of a child between 10 and 16 with intent to have sexual intercourse attracts a maximum penalty of 10, 12, 16 or 20 years imprisonment depending on the age of the child and other circumstances.

Children Sexual Touching

Under section 66DA of the Crimes Act 1900, a person who sexually touches a child under 10, incites another person to sexually touch a child under 10 or incites a child under 10 to sexually touch a person is guilty of an offence punishable by a maximum of 16 years imprisonment.

Under section 66DB of the Crimes Act 1900, a person who sexually touches a child between 10 and 16, incites another person to sexually touch a child between 10 and 16 or incites a child between 10 and 16 to sexually touch a person is guilty of an offence punishable by a maximum of 10 years imprisonment.

Children Sexual Act

A person who carries out a sexual act with or towards a child under 10, or incites another person to do so, is guilty of an offence punishable by a maximum of seven years imprisonment.

A person who carries out a sexual act with or towards a child between 10 and 16, or incites another person to do so, is guilty of an offence punishable by a maximum of two years imprisonment, or five years if the offence is committed under circumstances of aggravation.

A person who carries out a sexual act with or towards a child under 16, or incites another person to do so, and knows that the act is being filmed for the production of child abuse material, is guilty of an offence. This offence carries a maximum penalty of 10 years imprisonment.

Children Persistent Sexual Desire

Under section 66EA of the Crimes Act 1900, an adult who maintains an unlawful sexual relationship with a child is guilty of an offence punishable by life imprisonment. An unlawful sexual relationship is a relationship where an adult engages in two or more sexual acts.

Given the severity of these offences, imprisonment is expected. However, the Court has the discretion to impose a reduced term of imprisonment or alternative penalties if deemed suitable.

THE DEFENCE

If you are facing charges related to child sexual offences, it is recommended to promptly seek legal representation from experienced criminal defence lawyers. If we represent you, we may be able to assert the following defences in appropriate circumstances:

  • Honest and Reasonable Mistake: Under Division 9 of the Criminal Code Act, it is stipulated that a person may not be held criminally responsible if they hold a mistaken belief or are unaware of certain facts. It must be demonstrated that this mistaken belief pertained to the circumstances. A common example concerning child sexual offences is when the accused is misled into believing that the victim is over 16 years old.

  • Actual Innocence: Simply asserting innocence is insufficient to counter sexual assault allegations. Evidence such as CCTV footage placing you elsewhere during the alleged offence can create reasonable doubt, potentially resulting in a not guilty verdict.

  • Duress: Involves situations where the accused has been coerced into committing a criminal act due to threats. It must be established that the accused would not have acted in this manner under normal circumstances, but the threat was significant enough to compel them to commit the act to prevent harm such as death or grievous bodily harm.

  • Automatism: Automatism occurs when an individual commits a criminal act without conscious intent or control. It is divided into two categories: insane automatism, where the person is not in control due to a mental illness like schizophrenia, and non-insane automatism, where external factors impair their ability to control their actions, such as a diabetic entering a hypoglycaemic state.

  • Mental Illness: Under the Mental Health Act 1990, a defence of mental illness can be raised if it can be shown that the accused was mentally ill at the time of the offence. This may lead to orders for behavioural programs or treatment rather than imprisonment.

WHY CHOOSE SYDNEY DEFENDERS TO BE IN YOUR CORNER

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Whether you're seeking to plead not guilty, aiming for the best legal outcome, or assisting a loved one in applying for bail. Making sure you have experienced lawyers who understand the intricacies of the law is fundamental.

Getting legal advice early on is crucial to ensuring your rights and interests are protected. Our lawyers will properly assess your case and guide you towards achieving the best possible outcome.