Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 272 - Child sex offences outside Australia  

Subdivision B - Sexual offences against children outside Australia  

SECTION 272.9   Sexual activity (other than sexual intercourse) with child outside Australia  

Engaging in sexual activity with child

(1)    
A person commits an offence if:

(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child ); and

(b) the child is under 16; and

(c) the sexual activity is engaged in outside Australia.

Note:

A person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity: see the definition of engage in sexual activity in the Dictionary.

Penalty: Imprisonment for 20 years.

Causing child to engage in sexual activity in presence of defendant

(2)    
A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child ); and

(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and

(c) the child is under 16 when the sexual activity is engaged in; and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 20 years.

(3)    
The fault element for paragraph (2)(b) is intention.

(4)    
Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).

Note:

For absolute liability, see section 6.2 .

Defence - child present but defendant does not intend to derive gratification

(5)    
It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the child being in the presence of the defendant while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

Note 1:

A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4 .

Note 2:

For a defence based on belief about age, see section 272.16 .