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Section 272.12 Criminal Code Act 1995
Sexual Intercourse Child Outside Australia Position of Authority

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Sexual Intercourse in a Position of Trust or Authority over a Young Person and Outside Australia is an offence under section 272.12(1) of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were an Australian citizen or resident,
  2. You engaged in sexual intercourse with another person,
  3. The other person was at least 16 but less than 18 years of age,
  4. You were in a position of trust or authority in relation to the other person, and
  5. The sexual intercourse occurred outside Australia.

‘Sexual intercourse’ is defined as:

  1. The penetration to any extent of the vagina or anus of a person by any part of the body of another person or by any object by another person
  2. Fellatio or cunnilingus, or
  3. The continuation of any such activity.

Sexual intercourse does not include an act of penetration that is carried out for a proper medical, hygienic or law enforcement purpose.

‘Vagina’ encompasses any part of a female’s genitalia including surgically constructed female genitalia.

You were ‘in a position of trust or authority in relation to the other person’ if you were the person’s:

  1. Parent, step-parent, grandparent, foster parent, guardian, carer or teacher,
  2. Religious official or spiritual leader providing pastoral care or religious instruction,
  3. Sports coach,
  4. Medical practitioner, nurse, psychologist or other health professional,
  5. Counsellor or social worker providing professional services,
  6. Member of a police force or service, or person employed or providing services in a correctional institution, and providing services to the person, or
  7. Employer or other person with authority to terminate or to determine significant aspects of the person’s employment.

A grandparent includes the parent or step-parent of the other person’s parent or step-parent.

You are not guilty of the offence if you establish on the balance of probabilities that at the time of the sexual intercourse you believed the other person was at least 18 years of age.

When determining your belief about the other person’s age any representation by the other person that he or she was under the age of 18 years is proof you believed the person was of the represented age unless there is evidence to the contrary.

When determining how old a person was at a particular time the fact-finder may treat any of the following as relevant:

  1. The person’s appearance,
  2. Any medical or other scientific opinion, and/or
  3. Any document that appears to be an official or medical record from another country or any copy of such a document.

Duress and necessity are legal defences to the charge.

————————

Causing a Young Person under your Trust or Authority to Engage in Sexual Intercourse in your Presence outside Australia is an offence under section 272.12(2) of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were an Australian citizen or resident,
  2. You caused a person to engage in sexual intercourse with another,
  3. You did so intentionally,
  4. The person was at least 16 but less than 18 years old,
  5. You were in a position of trust or authority in relation to the person, and
  6. The sexual intercourse occurred outside Australia.

‘Sexual intercourse’ is defined as:

  1. The penetration to any extent of the vagina or anus of a person by any part of the body of another person or by any object by another person
  2. Fellatio or cunnilingus, or
  3. The continuation of any such activity

Sexual intercourse does not include an act of penetration that is carried out for a proper medical, hygienic or law enforcement purpose.

You ‘caused’ another person to engage in sexual intercourse if you substantially contributed to the person engaging in it.

‘Vagina’ encompasses any part of a female’s genitalia including surgically constructed female genitalia.

You were ‘in a position of trust or authority in relation to the other person’

If you were the person’s:

  1. Parent, step-parent, grandparent, foster parent, guardian, carer or teacher,
  2. Religious official or spiritual leader providing pastoral care or religious instruction,
  3. Sports coach,
  4. Medical practitioner, nurse, psychologist or other health professional,
  5. Counsellor or social worker providing professional services,
  6. Member of a police force or service, or person employed or providing services in a correctional institution, and providing services to the person, or
  7. Employer or other person with authority to terminate or to determine significant aspects of the person’s employment.

A grandparent includes the parent or step-parent of the other person’s parent or step-parent.

You are not guilty if you establish on the balance of probabilities that at the time of the sexual intercourse you believed that the person you caused to engage in sexual intercourse was at least 18 years old.

When determining your belief about the person’s age any representation by the other person that he or she was under the age of 18 years is proof you believed the person was of the represented age unless there is evidence to the contrary.

When determining how old a person was at a particular time the fact-finder may treat any of the following as relevant:

  1. The person’s appearance,
  2. Any medical or other scientific opinion, and/or,
  3. Any document that appears to be an official or medical record from another country or any copy of such a document.

Duress and necessity are legal defences to the charge.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Sexual Intercourse Child Outside Australia Position of Authority matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

272.12 Sexual intercourse with young person outside Australia—defendant in position of trust or authority

Engaging in sexual intercourse with young person

(1) A person commits an offence if:

(a) the person engages in sexual intercourse with another person (the young person); and

(b) the young person is at least 16 but under 18; and

(c) the person is in a position of trust or authority in relation to the young person; and

(d) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 10 years.

Causing young person to engage in sexual intercourse in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the young person); and

(b) that conduct causes the young person to engage in sexual intercourse in the presence of the person; and

(c) the young person is at least 16 but under 18 when the sexual intercourse is engaged in; and

(d) the person is in a position of trust or authority in relation to the young person; and

(e) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 10 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c) and (e).

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

(5) Strict liability applies to paragraphs (1)(c) and (2)(d).

Note: For strict liability, see section 6.1.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

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    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

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  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

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    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

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  6. Specialist Lawyer Guarantee

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  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

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  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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