The Offence of Engaging in Acts of Child Prostitution in New South Wales

Most people in New South Wales would recognise Jeffrey Epstein and associate the deceased United States citizen with being a child sex offender, involved in a smorgasbord of criminal offences. Yet, the multimillionaire financier was only ever convicted on two offences. These comprised of two convictions in 2008 for soliciting a minor for prostitution and a second count of soliciting prostitution.

The Florida state crime of soliciting a minor, or a person under 18 years of age, for prostitution translates to the NSW offence of engaging in acts of child prostitution.

Epstein really hit the stratosphere in terms of infamy, however, following his July 2019 arrest and charging over a sex-trafficking conspiracy. And this case grew in notoriety as evidence revealed Epstein spent significant time with figures like former US president Bill Clinton and current US president Donald Trump.

Epstein was then found dead in prison a month later, due to an apparent suicide, which was at the time of the first term of the Trump presidency.

Following his 2008 arrest in respect of sex with girls, Epstein went on to receive a “sweetheart deal”, which meant pleading guilty to the two charges and being sentenced to 18 months prison, with permission to spend six days a week in his Palm Beach office. Then federal prosecutor Alexander Acosta facilitated the deal as he’d been told to lay off as Epstein was an intelligence asset.

British socialite Ghislaine Maxwell was later convicted over her grooming role amongst the child sex ring, and she was sentenced to 20 years prison. Yet, these days she’s swanning it up in a low-risk security gaol after the White House shifted her last year, following her testimony to the justice department that absolved Trump of any inappropriate behaviour in terms of the sex ring.

Maxwell and Epstein rose to the top of the media cycle last year because of Donald Trump’s association with them, and his justice department’s reluctance to release the documents known as the “Epstein files”. And at present, as the files are slowly and reluctantly being released, each new dump raises further questions about the involvement of reigning US president Trump.

Child prostitution in NSW

Epstein’s 2008 conviction for the child sex offence of soliciting a minor for prostitution is comparable with the New South Wales offence of promoting or engaging in acts of child prostitution under section 91D of the Crimes Act 1900 (NSW). A child is defined as someone under 18 which carries a maximum penalty of 10 years in prison, or 14 years if the child was under the age of 14.

An offence against section 91D carries a standard non-parole period of 6 years, when the offending involves a child under 14 years old. An SNPP is a guidepost or reference point for a sentencing judge, when determining the minimum term an offender must spend behind bars before being eligible to apply for release on parole.

To establish this offence, the prosecution must prove beyond a reasonable doubt that an accused had participated in the crime as a client in an act of child prostitution, or that an accused has caused a child or induced them to participate in sexual acts in exchange for money. The law stipulates that having the consent of a child to participate in the act of prostitution is no defence at all.

Section 91C of the Crimes Act defines “an act of child prostitution” as “any sexual service, whether it involves or not an indecent act, that is provided by a child for the payment of money or the provision of something else material, and can “reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child”.

An act of child prostitution further included, but is not limited to, sexual activity involving a person of the same sex or different sex, as well as comprising of sexual intercourse or masturbation with a child for payment.

Defence against engaging in child prostitution

There are several defences available to an accused facing a charge of child prostitution. These include the defence of duress, which involves the defendant asserting they’d engaged in the crime due to a threat made against them or a loved-one. The threat was to be carried out if the crime was not committed, and this threat must have been serious enough to have warranted the crime.

The defence of mental impairment or cognitive impairment is contained under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This can be argued against a charge of child prostitution. This defence comprises of an accused claiming they didn’t know they were offending because of impairment, and this is based on the balance of probabilities.

An accused can too argue the defence of an honest and reasonable mistake, in terms of the victim’s age in a child prostitution case. But for this to stick, it normally requires positive deception by others. An example of this would be the production of a fake ID to trick the accused into thinking the victim was of age, while the younger the victim, the less likely this defence will succeed.

The erosion of general deterrence

Child sex offending is considered the most serious form of criminal offence in terms of the impression it casts upon the offender. Child sex offenders or paedophiles are often cited alongside terrorists, as reasons why governments are enacting tough-on-crimes laws or are gifting new powers to intelligence. So, whilst murder is the worst crime, a child sex offender is the worst criminal.

A 2008 NSW Sentencing Council report details that in terms of the section 91D child prostitution crimes over the period 2000 to 2007, four people were convicted and sentenced to prison for this offence, while three were convicted over attempting to induce a child into prostitution, with two of them going on to serve full time prison and the third offender was sentenced to periodic gaol time.

“The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders has been repeatedly emphasised by the courts,” outlines the Judicial Commission of New South Wales page on Sexual Offences Against Children.

General deterrence is of prominence when NSW judicial officers are sentencing a child sex offender to prison in this state. In handing down a sentence, general deterrence is the aspect of it that is purposed to prevent others from contemplating committing the crime. For example, if all people convicted over child prostitution get steep sentences, then this deters others from doing the same.

But even with NSW judges having a keen focus on promoting the principle of general deterrence in sentencing NSW offenders over the crime of child prostitution, the fact that some of the most powerful people on Earth continue to be suspected of having engaged in child sex offences and getting away with it in full view is definitely having an eroding effect on general deterrence.

Indeed, the Epstein Files and the unproven and unpunished allegations regarding the child sex crimes of powerful people, and further, their having gotten away with it for so long, must be having an eroding effect on the general deterrence that has long been promoted in this state amongst the general public in terms of child sex offences, and in turn, this must be right around the planet.