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

View history note

Subdivision B - Sexual offences against children outside Australia

View history note

SECTION 272.17

272.17 Defence based on valid and genuine marriage

View history reference

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.

View history note

History

S 272.17 substituted by No 72 of 2019, s 3 and Sch 6 item 1, applicable on and after 21 September 2019 in relation to offences alleged to have been committed before 21 September 2019. S 272.17 formerly read:

SECTION 272.17 Defence based on valid and genuine marriage
Offences involving engaging in sexual intercourse or other sexual activity with child or young person

(1)
It is a defence to a prosecution for an offence against subsection 272.8(1), 272.9(1), 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 child or 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 offence was committed; or

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

(b) when it was solemnised, the marriage was genuine.
Note:

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

Offences involving procuring or " grooming " child for sexual activity

(2)
It is a defence to a prosecution for an offence against subsection 272.14(1) or 272.15(1) if the defendant proves that:

(a) at the time he or she committed the offence, there existed between the defendant and the child 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 offence was committed; or

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

(b) when it was solemnised, the marriage was genuine.
Note:

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

S 272.17 inserted by No 42 of 2010, s 3 and Sch 1 item 4, effective 15 April 2010.

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.