Using a Carriage Service for Sexual Activity With a Person Under the Age of 16 Years

Using a carriage service for sexual activity with a person under the age of 16 years is an offence under section 474.25A(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

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

1. You were at least 18 years of age
2. You engaged in sexual activity with another person
3. You did so by the use of a carriage service, and
4. The other person was under 16 years of age.

‘Sexual activity’ includes a broad range of conduct of a sexual nature, including sexual intercourse, sexual touching and masturbation.

The offence encompasses the use of a carriage service to see or hear, in real time, a person under 16 years of age engage in sexual activity as well as engaging in sexual activity that was seen or heard, in real time, by a person under 16 years of age.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging when determining a person’s age at a particular time.

The fact-finder (whether judge-alone or jury) may treat as admissible evidence:

1. The person’s appearance
2. Any medical or other scientific opinion
3. Any document that is or appears to be an official or medical record from outside Australia, and
4. Any document that appears to be a copy of such a record.

In the case of a jury trial, the judge must warn jurors that they must be satisfied of age requirements beyond a reasonable doubt before they can reach a verdict of guilty.

The age requirement of being under 16 may be satisfied where the other person was above that age, but represented himself or herself as below that age.

You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that:

1. You believed the other person was at least 16 years of age, or
2. The conduct consisted only of the person who was under the age of 16 years being in the presence of another person while sexual activity was engaged in, and you did not intend to service gratification from the child’s presence.

Duress is a defence to the charge.