SEXUAL OFFENCES 

The Law: Section 215 of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) had or attempted to; 

(3) have unlawful (not authorised, justified or excused by the law); 

(4) carnal knowledge (penetration to any extent of the complainant’s genitalia with the defendant’s               penis, but it does not include sodomy); 

(5) with or of a child under the age of 16 years.

Defences specifically provided for by the Criminal Code:

(1) If the offence is alleged to have involved a child who was 12 years old or older, then it is a defence to prove that the defendant believed on reasonable grounds that the child was 16 years of age or older.

(2) If the offence is alleged to have involved a child with the impairment of a mind, it is a defence to prove that the defendant believed on reasonable grounds that the child was not a person with an impairment of the mind.

Maximum penalty:

♦ 14 years imprisonment if: – 

(a) If the child was 12 years of age or above at the time of the offence; or 

(b) If the offence involved the attempted unlawful carnal knowledge of a child under 16 years and the child was under the age of 12 years at the time of the offence; or 

(c) If the offence involved the attempted unlawful carnal knowledge of a child under 16 years and the defendant was the child’s guardian or had the child under the defendant’s care.

♦  Life imprisonment if: – 

(a) If the child was under the age of 12 years at the time of the offence.

(b) If the defendant was the child’s guardian or had the child under the defendant’s care.

(c) If the child was a person with an impairment of the mind.

The Law: Section 228C of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) distributed; 

(2) child exploitation material.

The Criminal Code states that to “distribute child exploitation material” includes: –

(a)  communicate, exhibit, send, supply or transmit child exploitation material to someone, whether to a particular person or not; and 


(b)  make child exploitation material available for access by someone, whether by a particular person or not; and 


(c)  enter into an agreement or arrangement to do something in paragraph (a) or (b); and 


(d)  attempt to distribute child exploitation material. 


What is child exploitation material?

The Criminal Code defines it as:

material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years—

(a)  in a sexual context, including for example, engaging in a sexual activity; or 


(b)  in an offensive or demeaning context; or 


(c)  being subjected to abuse, cruelty or torture. 


Specific defences provided for by the Criminal Code 

(1) the defendant engaged in the conduct that is alleged to constitute the offence for a genuine artistic, educational, legal, medical, scientific or public benefit purpose; and the defendant’s conduct was, in the circumstances, reasonable for that purpose.

(2) at the time of the alleged offence—

(a)  a classification exemption had been given to an entity for the material that is alleged to be child exploitation material; and 


(b)  the defendant engaged in the conduct that is alleged to constitute the offence— 


(i) for a purpose for which the exemption was given; and

(ii) in a way that is consistent with the exemption, including any conditions imposed on the exemption.

(3) It is a defence for the defendant to prove that the material alleged to be child exploitation material is      a computer game, film or publication that is classified as something other than RC (Refused                  Classification). 


Maximum penalty: 14 years imprisonment.

The Law: Section 218B of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant: –

(1) is an adult;

(2) engaged in any conduct in relation to

(3) a person under the age of 16 years, or a person the adult believes is under the age of 16 years

(4) with the intent to—

(a)  facilitate the procurement of the person to engage in a sexual act, either in Queensland or               elsewhere; or 


(b)  expose, without legitimate reason, the person to any indecent matter, either in Queensland or         elsewhere.

Please note it doesn’t matter if the person who is represented to the defendant as being real is in fact fictional (i.e. that they are not real or do not in fact exist).

What does it mean to “engage in a sexual act”?

The Criminal Code provides that a person will engage in a sexual act if they:

(a)  allow a sexual act to be done to their body; or 


(b)  do a sexual act to their own body or the body of another person; or 


(c)  otherwise engage in an act of an indecent nature. 


Sexual acts are not limited to sexual intercourse or acts involving physical contact. 


What does it mean to “procure”?

 Knowingly entice or recruit for the purposes of sexual exploitation.

Defence specifically provided for by the Criminal Code:

It is a defence if the defendant believed on reasonable grounds that the person was at least 16 years or 12 years of age depending on the circumstances. 
However, please note that evidence that the person was represented to the adult as being under the age of 16 years, or 12 years is, in the absence of evidence to the contrary, proof that the defendant believed the person was under that age. 


Maximum penalty: 

♦ 5 years imprisonment; or 

♦ 10 years imprisonment if the person is: –

(a) a person under 12 years; or 


(b) a person the defendant believes is under 12 years. 


The Law: Section 222 of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

(1) The defendant had carnal knowledge (penetration to any extent of the complainant’s genitalia with the defendant’s penis and it does not include sodomy).

(2) The complainant was the defendant’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece.

(3) The defendant knew at the time that the complainant was their offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece.

Offspring or other lineal descendant, or a sibling or a parent includes a relationship that is a half, adoptive or step relationship. 


A step relationship can include one that has arisen because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement. 


Maximum penalty: Life imprisonment.

The Law: Section 210 of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

 The defendant: 

(1) unlawfully; and

(2) indecently;

(3) dealt with a child under 16 years of age.

Or

The defendant:

(1) unlawfully;

(2) procured;

(3) a child under the age of 16 years to commit an indecent act.

Or

The defendant:

(1) unlawfully;

(2) permitted themself; 

(3) to be indecently dealt with by a child under the age of 16 years.

Or

The defendant:

(1) wilfully and

(2) unlawfully; 

(3) exposed; 

(4) a child under the age of 16 years; 

(5) to an indecent act by the defendant or any other person.

Or

The defendant:

(1) without legitimate reason;

(2) wilfully exposed; 

(3) a child under the age of 16 years; 

(4) to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter.

Or

The defendant:

(1) without legitimate reason;

(2) took any indecent photograph or recorded by means of any device, any indecent visual image; 

(3) the photograph or recording was of a child under the age of 16 years.

Defences specifically provided for by the Criminal Code:

(1) If the offence is alleged to have involved a child who was 12 years old or older, then it is a defence to prove that the defendant believed on reasonable grounds that the child was 16 years of age or older.

(2) If the offence is alleged to have involved a child with the impairment of a mind, it is a defence to prove that the defendant believed on reasonable grounds that the child was not a person with an impairment of the mind.

Maximum Penalty:

14 years imprisonment – if the child was 12 years of age or above at the time of the offence- 14 years imprisonment. 


20 years imprisonment: – 

(a) If the child was under the age of 12 years at the time of the offence; or 

(b) If the child was to the knowledge of the defendant his or her lineal descendant or if the defendant was the guardian of the child or had the child under his or her care; or 

(c) If the child was a person with an impairment of the mind.

The Law: Section 228A of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) involved; 

(2) a child; 

(3) in the making of child exploitation material. 


The Criminal Code states that to “involve a child in the making of child exploitation material” includes:

(1) in any way concerns a child in the making of child exploitation material; and

(2) attempts to involve a child in the making of child exploitation material.

What is child exploitation material?

The Criminal Code defines it as:

material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years—

(a)  in a sexual context, including for example, engaging in a sexual activity; or 


(b)  in an offensive or demeaning context; or 


(c)  being subjected to abuse, cruelty or torture. 


Specific defences provided for by the Criminal Code 

(1) the defendant engaged in the conduct that is alleged to constitute the offence for a genuine artistic, educational, legal, medical, scientific or public benefit purpose; and the defendant’s conduct was, in the circumstances, reasonable for that purpose.

(2) at the time of the alleged offence—

(a)  a classification exemption had been given to an entity for the material that is alleged to be child exploitation material; and 


(b)  the defendant engaged in the conduct that is alleged to constitute the offence— 


(i) for a purpose for which the exemption was given; and

(ii) in a way that is consistent with the exemption, including any conditions imposed on the exemption.

(3) It is a defence for the defendant to prove that the material alleged to be child exploitation material is      a computer game, film or publication that is classified as something other than RC (Refused                  Classification). 


Maximum penalty: 14 years imprisonment.

The Law: Section 218A of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) is an adult;

(2) used electronic communication; 

(3) with the intent to procure a person under the age of 16 years, or a person the adult believes is              under the age of 16 years; 

(4) to engage in a sexual act, either in Queensland or elsewhere. 

What does it mean to “engage in a sexual act”?

The Criminal Code provides that a person will engage in a sexual act if they:

(a)  allow a sexual act to be done to their body; or 


(b)  do a sexual act to their own body or the body of another person; or 


(c)  otherwise engage in an act of an indecent nature. 


Sexual acts are not limited to sexual intercourse or acts involving physical contact. 


What is “electronic communication”?

Email, internet chat rooms, SMS messages, real time audio/video or other similar communication.

What does it mean to “procure”?

 Knowingly entice or recruit for the purposes of sexual exploitation.

Defence specifically provided for by the Criminal Code:

The defendant believed on reasonable grounds that the person was at least 16 years. 


Maximum Penalty:

♦ 10 years imprisonment; or 

♦ 14 years imprisonment if:

(1) the person is: –

(a) a person under 12 years; or 


(b) a person the adult believes is under 12 years; or 


(2) the offence involves the adult: –

(a) intentionally meeting the person; or 


(b) going to a place with the intention of meeting the person. 


The Law: Section 229B of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) was an adult.

(2) maintained an unlawful sexual relationship; 

(3) with the complainant; 

(4) the complainant was a child under the prescribed age.

What is an “unlawful sexual relationship”?

A relationship that involves more than 1 unlawful sexual act over any period. 


What is an “offence of a sexual nature”?

The Criminal Code defines it to mean any of the following offences: –

(1) Unlawful sodomy.

(2) Indecent treatment of a child under 16 years, except for offences involving the defendant:

(a) exposing a child under the age of 16 years to any indecent object or any indecent film,                     videotape, audiotape, picture, photograph or printed or written matter; or

(b) taking an indecent photograph or recording by means of any device, any indecent visual image        of a child under the age of 16 years.

(3) Carnal knowledge with or of a child under 16.

(4) Incest. 

(5) Attempted Rape.

(6) Sexual Assault.

What is the “prescribed age” for a child?

The Criminal Code states that this means: –

(1) If the unlawful sexual relationship involved an act that constituted, or would constitute (if it were            sufficiently particularised), an offence of unlawful sodomy-18 years; or 


(2) in any other case-16 years. 


What is an “unlawful sexual act”?

The Criminal Code states that this means: –

An act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature.

Specific defence provided for by the Criminal Code

If the complainant was at least 12 years when the offence was alleged to have been committed, it is a defence to prove the defendant believed on reasonable grounds that the complainant was at least the prescribed age (See above for definition). 


Maximum penalty: Life imprisonment.

The Law: Section 228B of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant made child exploitation material.

To 
make child exploitation material includes: –

(a) produce child exploitation material; and

(b) attempt to make child exploitation material.

What is child exploitation material?

The Criminal Code defines it as:

material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years—

(a)  in a sexual context, including for example, engaging in a sexual activity; or 


(b)  in an offensive or demeaning context; or 


(c)  being subjected to abuse, cruelty or torture. 


Specific defences provided for by the Criminal Code

(1) the defendant engaged in the conduct that is alleged to constitute the offence for a genuine artistic, educational, legal, medical, scientific or public benefit purpose; and the defendant’s conduct was, in the circumstances, reasonable for that purpose.

(2) at the time of the alleged offence—

(a)  a classification exemption had been given to an entity for the material that is alleged to be child exploitation material; and 


(b)  the defendant engaged in the conduct that is alleged to constitute the offence— 


(i) for a purpose for which the exemption was given; and

(ii) in a way that is consistent with the exemption, including any conditions imposed on the exemption.

(3) It is a defence for the defendant to prove that the material alleged to be child exploitation material is      a computer game, film or publication that is classified as something other than RC (Refused                  Classification). 


Maximum penalty: 14 years imprisonment.

The Law: Section 228D of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) knowingly (the prosecution has to prove a guilty knowledge of having possession of the material)

(2) possessed (the defendant had the custody or control of the thing and/or the ability or the right to obtain custody or control of the thing)

(3) child exploitation material.

What is child exploitation material?

The Criminal Code defines it as:

material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years—

(a)  in a sexual context, including for example, engaging in a sexual activity; or 


(b)  in an offensive or demeaning context; or 


(c)  being subjected to abuse, cruelty or torture. 


Specific defences provided for by the Criminal Code

(1) the defendant engaged in the conduct that is alleged to constitute the offence for a genuine artistic,      educational, legal, medical, scientific or public benefit purpose; and the defendant’s conduct was, in      the circumstances, reasonable for that purpose.

(2) at the time of the alleged offence—

(a)  a classification exemption had been given to an entity for the material that is alleged to be child       exploitation material; and 


(b)  the defendant engaged in the conduct that is alleged to constitute the offence— 


(i) for a purpose for which the exemption was given; and

(ii) in a way that is consistent with the exemption, including any conditions imposed on the exemption.

(3) It is a defence for the defendant to prove that the material alleged to be child exploitation material is      a computer game, film or publication that is classified as something other than RC (Refused                  Classification). 


Maximum penalty: 14 years imprisonment.

The Law: Section 349 of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

(1) The defendant had carnal knowledge with or of the other person without the other person’s consent; 

Or

(2) The defendant penetrated the vulva, vagina or anus of the other person to any extent with a thing or a part of the defendant’s body that is not a penis without the other person’s consent;

Or 


(3) The defendant penetrated the mouth of the other person to any extent with the defendant’s penis without the other person’s consent. 


What does “consent” mean?

It means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. 


When will a person’s consent not be freely and voluntarily given?

 If the defendant obtains the consent of the other person:-

(a)  by force; or 


(b)  by threat or intimidation; or 


(c)  by fear of bodily harm; or 


(d)  by exercise of authority; or 


(e)  by false and fraudulent representations about the nature or purpose of the act; or 


(f)  by a mistaken belief induced by the accused person that the accused person was the person’s              sexual partner. 


Can a child under the age of 12 give consent?

No.

Maximum penalty: Life imprisonment.

The Law: Section 352 of the Criminal Code (Qld).

What does the Prosecution have to prove beyond reasonable doubt?

The defendant:

(1) unlawfully (this means not authorised, justified or excused at law); and

(2) indecently;

(3) assaulted the complainant.

Or

The defendant:

(1) Procured the complainant, without the complainant’s consent:

(a) to commit an act of gross indecency; or 


(b) to witness an act of gross indecency by the defendant or any other person; 


Maximum penalty:

♦ 10 years imprisonment; or 

♦ 14 years imprisonment if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person; or 

♦  Life imprisonment if: –

(a) Immediately before, during, or immediately after, the offence, the offender is, or pretends to be,         armed with a dangerous or offensive weapon, or is in company with any other person; or

(b) If the indecent assault included the person who is assaulted penetrating the defendant’s vagina,       vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or

(c) If the act of gross indecency involved the complainant penetrating their own vagina, vulva or            anus or another person to any extent with a thing or a part of the body of the complainant that is      not a penis.