208JSexual intercourse – child under 16 years

208J Sexual intercourse – child under 16 years (b) the other person is under 14 years of age. (a) if the other person is under 10 years of age – imprisonment for life; or (b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years. (b) the other person is 14 or 15 years of age. (4) Strict liability applies to subsection (3)(b). subsection (3) if: (a) the defendant is not more than 24 months older or younger than the person against whom the offence is alleged to have been committed; and (b) the person consented to the sexual intercourse. Criminal Code Act 1983 184 208JA Causing sexual intercourse or penetration – child under (b) the other person is under 14 years of age. (a) if the other person is under 10 years of age – imprisonment for life; or (b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years. (b) the other person is 14 or 15 years of age. (4) Strict liability applies to subsection (3)(b). 208JB Gross indecency – child under 16 years (i) performs an act on another person; or Criminal Code Act 1983 185 (ii) causes or allows another person to perform an act on the person; and Maximum penalty: Imprisonment for 20 years or, for an aggravated offence, 25 years. (i) intentionally performs an act on another person; or (ii) intentionally causes or allows another person to perform an act on the person; and 208JC Indecent touching or act – child under 16 years (ii) causes or allows another person to touch the person; or (iii) engages in an act directed at another person; and Criminal Code Act 1983 186 (ii) causes or allows another person to touch the person; or (iii) engages in an act directed at another person; and 208JD Causing indecent touching or act – child under 16 years Criminal Code Act 1983 187 208JE Exposure to indecent thing or act – child under 16 years (a) the person intentionally exposes another person to a thing or act; and (b) the thing or act is indecent; and (a) the person intentionally exposes another person to a thing or act; and (b) the thing or act is indecent; and subsection (1) or (2) if the defendant has a reasonable excuse. 208JF Recording or capturing indecent image – child under 16 years (a) the person intentionally records or captures a visual image of Criminal Code Act 1983 188 (b) the image is indecent; and (a) the person intentionally records or captures a visual image of (b) the image is indecent; and subsection (1) or (2) if the defendant has a reasonable excuse. image means a moving or still image in any form. Examples for definition image 1 A file stored on a computer. 2 A photo stored on a phone. Note for section 208JF See Part V, Division 2 for offences relating to child abuse material. 208JG Engaging in conduct to procure sexual activity – child under 16 years (b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and Criminal Code Act 1983 189 (c) the child is under 14 years of age. (b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and (c) the child is 14 or 15 years of age. (3) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a) and subsection (2)(b) is the fault element for the conduct in subsection (2)(a). (4) Absolute liability applies to subsection (1)(c). (5) Strict liability applies to subsection (2)(c). sexual activity means sexual intercourse, an act of gross indecency, indecent touching or an indecent act. 208JH Grooming to engage in sexual activity – child under 16 years (i) who is under 14 years of age; or (ii) who the person believes is under 14 years of age. Criminal Code Act 1983 190 (i) who is 14 or 15 years of age; or (ii) who the person believes is 14 or 15 years of age. (a) the person engages in conduct in relation to a contact of a person (the child); and (i) who is under 14 years of age; or (ii) who the person believes is under 14 years of age. (4) A person commits an offence if: (a) the person engages in conduct in relation to a contact of a person (the child); and (i) who is 14 or 15 years of age; or Criminal Code Act 1983 191 (ii) who the person believes is 14 or 15 years of age. (5) For subsections (1) to (4): (a) subsection (1)(b) is the fault element for the conduct in subsection (1)(a); and (b) subsection (2)(b) is the fault element for the conduct in subsection (2)(a); and (c) subsection (3)(b) is the fault element for the conduct in subsection (3)(a); and (d) subsection (4)(b) is the fault element for the conduct in subsection (4)(a). (6) Absolute liability applies to subsections (1)(c)(i) and (3)(c)(i). (7) Strict liability applies to subsections (2)(c)(i) and (4)(c)(i). (8) A person may be found guilty of an offence against subsection (1), (2), (3) or (4) even if: (a) it is impossible for the sexual activity mentioned in the subsection to take place; or (b) the child is a fictitious person represented to the accused person as a real person; or (c) without limiting section 43CA, the accused person and the child or contact, as the case may be, were both outside the Territory at the time at which some or all of the conduct constituting the offence against the subsection occurred, so long as the intended sexual activity would occur in the (9) In this section: contact, of a person, means any person who has a relationship of any type with the person. Examples for definition contact, in relation to a child A family member, babysitter, teacher or acquaintance of the child. sexual activity means sexual intercourse, an act of gross indecency, indecent touching or an indecent act. Criminal Code Act 1983 192 208JI Repeated sexual abuse – child under 16 years (a) the person intentionally engages in conduct with another person on 2 or more occasions at any time on or after 1 July 1978; and (b) the conduct constitutes sexual activity; and (c) the other person is under 16 years of age. Maximum penalty: See subsection (7). (2) Absolute liability applies to subsection (1)(b) and (c). (3) It is a defence to a prosecution for an offence against subsection (1) if: (a) on each occasion on which the conduct occurred: (i) the defendant believed, on reasonable grounds, that the other person was 16 years of age or older; and (ii) the other person was 14 or 15 years of age; or (b) engaging in the conduct with a person who is under 16 years of age would not have constituted an offence at the time at which the conduct occurred. (4) To avoid doubt, the offence in subsection (1) applies in relation to conduct that occurred at any time on or after 1 July 1978. (5) For a person to be found guilty of an offence against subsection (1), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, must be satisfied beyond reasonable doubt that the evidence shows that the defendant engaged in conduct constituting sexual activity with the other person on 2 or more occasions. (6) For this section: (a) it is immaterial whether the sexual activity was of the same nature on each occasion; and (b) it is immaterial whether any of the sexual activity occurred outside the Territory, as long as at least one occasion of the sexual activity occurred in the Territory; and Criminal Code Act 1983 193 (c) the prosecution is not required to allege or prove the particulars of any sexual activity that would be necessary if the activity were charged as a separate offence; and (d) the jury is not required to be satisfied of the particulars of any sexual activity of which it would have to be satisfied if the activity were charged as a separate offence; and (e) despite subsection (5), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, are not required to be satisfied about the same sexual activity. (7) The maximum penalty for an offence against subsection (1) is as follows: (a) for an offence involving occasions of sexual activity all of which occurred after the commencement – imprisonment for life; (b) for an offence involving occasions of sexual activity that occurred both before and after the commencement: (i) if 2 or more occasions occurred after the commencement – imprisonment for life; or (ii) otherwise – the penalty specified in item 3 of the Table; (c) for an offence involving occasions of sexual activity all of which occurred before the commencement: (i) if the occasions occurred during only one of the periods specified in the Table – the penalty specified in the Table for that period; or (ii) if the occasions occurred during 2 or more of the periods specified in the Table and 2 or more occasions occurred during any of those periods – the higher of the penalties specified in the Table for the periods in which 2 or more occasions occurred; or (iii) if the occasions occurred during 2 or more of the periods specified in the Table and only one occasion occurred during each of those periods – the lower of the penalties specified in the Table for those periods. Criminal Code Act 1983 194 Table Item Period Penalty 1 The period commencing on 1 July 1978 and ending on 31 May 1994 The penalty is the total of the maximum penalties for each historical offence constituted by the occasions of sexual activity that are found to have occurred during this period. 2 The period commencing on 1 June 1994 and ending on The penalty is: (a) if the occasions of sexual activity that historical offence for which the maximum penalty, at the time of the activity, exceeded 14 years – (b) otherwise – imprisonment for 14 years. 3 The period commencing on 17 March 2004 and ending immediately before the commencement The penalty is: (a) if the occasions of sexual activity that historical offence for which the maximum penalty, at the time of the activity, exceeded 20 years – (b) if the occasions of sexual activity that offence against section 192B (as in force before the commencement) – (c) otherwise – imprisonment for 20 years. Criminal Code Act 1983 195 (8) For the purposes of the Table, an occasion of sexual activity constitutes a historical offence if the sexual activity is the same as the act, omission or event that constitutes the historical offence, even if the particulars of the time and place at which the sexual activity took place are not sufficiently particularised to enable the defendant to be charged with or found guilty of the historical Note for subsection (8) The mental element applying in relation to the historical offence is to be disregarded in determining whether the sexual activity constituted a historical (9) In this section: commencement means the commencement of this section. sexual activity means any of the following conduct, unless done in the course of a procedure carried out in good faith for medical or hygienic purposes: (a) sexual intercourse; (b) causing a person to be sexually involved with an animal; (c) causing a person to penetrate (to any extent) the person's own genitals or anus; (d) an act of gross indecency; (e) indecent touching; (f) an indecent act. Note for definition sexual activity Conduct amounting to an attempt to engage in any conduct specified in paragraphs (a) to (f) may be evidence of an attempt to commit an offence against subsection (1). Table means the Table to subsection (7). 208JJ Charge for offence of repeated sexual abuse (1) A person may be charged in one indictment with: (a) an offence against section 208JI(1); and (b) one or more other offences against this Part or a historical offence alleged to have been committed by the person in relation to the other person in the course of the alleged repeated sexual abuse. Criminal Code Act 1983 196 (2) A person charged in one indictment may be found guilty of and punished for any or all of the offences charged. (3) A proceeding for an offence against section 208JI(1) must not be started without the consent of the Director of Public Prosecutions. (4) Despite subsection (3), a person may be arrested for or charged with, or remanded in custody or on bail in connection with, an offence against section 208JI(1) before the consent of the Director of Public Prosecutions is given. 208JK No defence of consent Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division, except as mentioned in section 208J(5). 208JL No defence of belief in marriage or de facto relationship It is not a defence to an offence against this Division if the person charged with the offence believed the person: (a) was married to the child concerned; or (b) was the de facto partner of the child concerned. 208JM Proceeding against child (1) A proceeding for the following offences must not be started without the consent of the Director of Public Prosecutions: (a) an offence against section 208JG(1) or (2) or 208JH(1), (2), (3) or (4) alleged to have been committed by a child; (b) an offence against another provision of this Division, other than section 208JI(1), alleged to have been committed by a child under 14 years of age. (2) Despite subsection (1), a child mentioned in subsection (1) may be arrested for or charged with, or remanded in custody or on bail in connection with, the offence before the necessary consent is given. Division 4 Sexual acts committed against young persons by persons in positions of Criminal Code Act 1983 197 Division 4 Sexual acts committed against young persons by persons in positions of authority 208K Sexual intercourse – young person (b) the person intentionally engages in sexual intercourse with the (c) the other person is 16 or 17 years of age. 208KA Causing sexual intercourse or penetration – young person (b) the person intentionally causes the other person: (c) the other person is 16 or 17 years of age. 208KB Gross indecency – young person Division 4 Sexual acts committed against young persons by persons in positions of Criminal Code Act 1983 198 (i) performs an act on the other person; or (ii) causes or allows the other person to perform an act on the person; and (c) the act is grossly indecent; and (d) the other person is 16 or 17 years of age. aggravated offence, 9 years. 208KC Indecent touching or act – young person (i) touches the other person; or (ii) causes or allows the other person to touch the person; or (iii) engages in an act directed at the other person; and (c) the touching or act is indecent; and (d) the other person is 16 or 17 years of age. 208KD No defence of consent Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division. Criminal Code Act 1983 199 208KE Defence – marriage or de facto relationship A person who is in a position of authority in relation to another person is not criminally responsible for an offence against this Division in relation to conduct involving the other person if, at the time of the conduct: (a) the person was married to, or honestly believed on reasonable grounds that the person was married to, the other person; or (b) the person was the de facto partner of, or honestly believed on reasonable grounds that the person was the de facto partner of, the other person. Division 5 Sexual acts committed against cognitively impaired persons by carers