Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (72 of 2019)

Schedule 6   Restricted defence of marriage for child sex offences

Criminal Code Act 1995

1   Section 272.17 of the Criminal Code

Repeal the section, substitute:

272.17 Defence based on valid and genuine marriage

It is a defence to a prosecution for an offence against subsection 272.12(1) or 272.13(1) if the defendant proves that:

(a) at the time of the sexual intercourse or sexual activity, there existed between the defendant and the young person a marriage that was valid, or recognised as valid, under the law of:

(i) the place where the marriage was solemnised; or

(ii) the place where the sexual intercourse or sexual activity is alleged to have taken place; or

(iii) the place of the defendant's residence or domicile; and

(b) when the marriage was solemnised:

(i) the marriage was genuine; and

(ii) the young person had attained the age of 16 years.

Note 1: A defendant bears a legal burden in relation to the matter in this section: see section 13.4.

Note 2: Subsection 272.12(1) deals with engaging in sexual intercourse with a young person outside Australia. Subsection 272.13(1) deals with engaging in sexual activity (other than sexual intercourse) with a young person outside Australia. Both offences apply to defendants in a position of trust or authority in relation to the young person concerned.