Section 272.9 Criminal Code Act | Sexual Activity with Child Outside Australia


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The Legislation

Section 272.9 of the Criminal Code Act 1995 (Cth) is Sexual Activity with Child Outside Australia and is extracted below.

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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.

Penalty: Imprisonment for 15 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 15 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.