Criminal Code Act 1995
Section 3
CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES Division 272 - Child sex offences outside Australia
View history note
Hide history noteEngaging 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 .
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