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 272.10   Aggravated offence - sexual intercourse or other sexual activity with child outside Australia  

(1)    
A person commits an offence against this section (the aggravated offence ) if:

(a) the person commits an offence (the underlying offence ) against one of the following provisions in relation to another person (the child ):

(i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

(ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

(iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

(iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and

(b) one or more of the following apply:

(i) the child has a mental impairment at the time the person commits the underlying offence;

(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person, at the time the person commits the underlying offence;

(iii) the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in subsection 272.8(1) or (2) or 272.9(1) or (2) ;

(iv) the child dies as a result of physical harm suffered in connection with the sexual activity referred to in subsection 272.8(1) or (2) or 272.9(1) or (2) .

Penalty: Imprisonment for life.

(2)    
There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3)    
To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(4)    
Absolute liability applies to subparagraph (1)(b)(i).

Note:

For absolute liability, see section 6.2 .

(5)    
Strict liability applies to subparagraph (1)(b)(ii).

Note:

For strict liability, see section 6.1 .

Defence - belief that child did not have mental impairment

(6)    
Subparagraph (1)(b)(i) does not apply if the defendant proves that, at the time he or she committed the underlying offence, he or she believed that the child did not have a mental impairment.

Note:

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

(7)    
In determining whether the defendant had the belief mentioned in subsection (6), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.