Child Sex Offence & Exploitation Lawyers

Indecent Treatment Of A Child

A conviction for indecent treatment of a child (under 16) frequently leads to a custodial penalty – even for first time offenders.  Common penalties imposed for Indecent Treatment are discussed at the bottom of this page.

Indecent treatment of a child is an offence stated as:

Any person who—

• unlawfully and indecently deals with a child under the age of 16 years; or
• unlawfully procures a child under the age of 16 years to commit an indecent act; or
• unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years; or
• wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or
• without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or
• without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years;

Is guilty of an indictable offence.

What May Constitute Indecent Treatment?

Indecent treatment is commonly committed by an adult performing overtly sexual acts with, or in the presence of, a child. In broad terms, indecent treatment is constituted by any sexual interaction with a child which does not involve penetration. If the act involves penetration the act then becomes the more even more serious crime of rape.

Indecent treatment may involve non-penetrative but sexual touching of a child or coercing or forcing a child to touch the genitals of an adult. It is also commonly committed by an adult showing a child their genitals or pornographic material or coercing a child to display their genitals.

Defences To A Charge Of Indecent Treatment

Defences include wrongful identification, mental impairment, or duress.

We regularly come across matters where the complainant is quite simply lying.

This can often be the case in historical matters where the complainant’s allegations surface many years down the track and are borne out of anger, revenge, or financial motivation.

As with all criminal charges, the prosecution must present evidence that proves all the elements of the offence beyond reasonable doubt and if they fail to achieve that the accused will be acquitted.  Successfully defending a charge by revealing the complainant’s untruths requires careful and tactical cross-examination.

A further defence is that the treatment was not, in fact, indecent. What is “Indecent” is determined by the jury in terms of ordinary community standards.

Additionally, it is a defence to a charge of indecent treatment (if the offence is alleged to have been committed against a child over the age of 12) if a person can prove that they honestly and reasonably believed the child was over the age of 16 at the time of the offending conduct.

Child Exploitation Material

There are a range of offences relating to the access, possession, distribution and making of Child Exploitation Material (CEM).   These offences cover a broad scope of conduct, ranging from teenagers sending seemingly harmless sexts, to persons who make and distribute CEM via specifically oriented groups on the dark web.  Any offence relating to CEM is very serious and in many, but not all cases, actual terms of imprisonment are imposed.

Under the Queensland Criminal Code 1899, Child Exploitation Material is defined as;

Material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years—

• in a sexual context, including for example, engaging in a sexual activity; or
• in an offensive or demeaning context; or
• being subjected to abuse, cruelty or torture.

Possessing Child Exploitation Material

Possessing Child Exploitation Material is an offence stated as:

A person who knowingly possesses child exploitation material commits a crime.

Maximum penalty —

• if the offender uses a hidden network or an anonymising service in committing the offence—20 years imprisonment; or
• Otherwise—14 years imprisonment

What May Constitute Possessing Child Exploitation Material?

• Receiving and keeping an SMS photo on your phone of your 15-year-old girlfriend’s breasts
• Possessing a magazine with photos of naked children under 16 years of age
• Keeping downloaded videos of naked pre-pubescent teens on your laptop

Possible Defences To Possessing Child Exploitation Material

Possible defences include, but are not limited to:

• Identity – you were not the person who had possession of the material
• Knowledge – you were not aware you were in possession of the material
• Assessment – the material is not actually Child Exploitation Material

Making Child Exploitation Material

Making Child Exploitation Material is an offence stated as:

A person who makes child exploitation material commits a crime.

In this section –

• making child exploitation material includes –
  • producing child exploitation material; and
  • attempting to make child exploitation material

Maximum penalty— 14 years imprisonment.

What May Constitute Making Child Exploitation Material?

• Taking a photo of your 15-year-old girlfriend’s breasts on your phone
• Video recording a naked 11-year-old showering
• Making a sex scene for a movie involving a young child and an adult

Possible Defences To Making Child Exploitation Material

Possible defences to Making Child Exploitation Material include, but are not limited to:

• Identity – you were not the person who made the material
• Knowledge – you were not aware you made the material
• Assessment – the material is not actually Child Exploitation Material

Distributing Child Exploitation Material

Distributing Child Exploitation Material is an offence stated as:

A person who distributes child exploitation material commits a crime.

In this section – distribute child exploitation material includes –

• communicate, exhibit, send, supply or transmit child exploitation material to someone, whether to a particular person or not: and
• make child exploitation material available for access by someone, whether by a particular person or not; and
• attempt to distribute child exploitation material

Maximum penalty— 14 years imprisonment

What May Constitute Distributing Child Exploitation Material?

• Sending an SMS photo of your 15-year-old girlfriend’s breasts to a friend
• Handing a magazine to someone which contains photos of naked children under 16 years of age
• Sending an email to a pornographic website attaching a video showing an 11-year-old showering

Possible Defences To Making Child Exploitation Material

Possible defences to Distributing Child Exploitation Material include, but are not limited to:

• Identity – you were not the person who distributed the material
• Knowledge – you were not aware you distributed the material
• Assessment – the material is not actually Child Exploitation Material

Incest

Incest is an offence stated as:

Any person who—

• has carnal knowledge with or of the person’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and
• knows that the other person bears that relationship to him or her, or some relationship of that type to him or her commits a crime.

Maximum penalty—imprisonment for life

Incest is the crime of engaging in penetrative sex with a person you know to be your offspring or lineal descendant or otherwise related to you in a relevant way.

The relationship between an accused person and a complainant does not have to be by blood and the offence can be committed where the relationship is half, step (whether by marriage or de-facto cohabitation), adoptive, or foster arrangement.

A charge of incest is not reserved for sexual acts involving children, a person can be guilty of incest because of a sexual act performed with an otherwise consenting adult, but it is most commonly laid in relation to offending committed against a child.

What May Constitute Incest?

Any penetrative sexual act when engaged in with a person to whom you are related will likely constitute the offence of incest.

There is no distinction under the law between types of penetrative sexual acts (for example oral, anal, or genital) and any form of penetration, to any extent, can constitute the offence.

A biological grandfather who coerces or forces sex with his grandson or granddaughter is likely guilty of incest in the same way that a young person would be if they had sex with an adopted sibling of similar age. That said, the penalty applied by the Court would differ significantly in those two significantly different circumstances.

Possible Defences To A Charge Of Incest

Consent is not a defence to a charge of incest.

As with all criminal charges, there is a default ‘defence’ to a charge of maintaining where the prosecution evidence fails to prove all the elements of the offence beyond a reasonable doubt (for example because a person cannot be proved to have known that they are related to the person with whom they had otherwise consensual sex).

There are also 2 specific defences to a charge of incest contained within section 222 of the Code itself.

• Firstly, it is a defence to the charge if an accused person proves that they had carnal knowledge of their relative because of that relative’s coercion.
• Secondly, a person is not guilty of incest if they have sex with a step-relative in circumstances where that step-relationship commenced after both parties became adults.

Penalties For Child Sex Offences

Imprisonment:  Imprisonment is the most serious penalty which a court can impose upon a person.

Despite its name, imprisonment does not necessarily mean actual time in jail and can sometimes be served by way of immediate parole, suspended imprisonment, or Intensive Correction Order.

Effective and knowledgeable lawyers such as Rawlings Criminal Law are experts in arguing for such non-custodial sentences.

Intensive Correction Order:  An Intensive Corrections Order (‘ICO’ for short) requires a person to adhere to a number of requirements (normally including rehabilitative courses and conditions) that the Court will order and closely monitor.

Probation:  A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time in prison and is then subject to a probation requirement upon release.

Community Service Order:  A Community Service Order (‘CSO’) is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).

Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance.

Fines:  A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State.

Section 19 dismissal:  A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied pursuant to s19 of the Penalties and Sentencing Act 1992 that it is legally appropriate to do so.

In all cases where a person is sentenced to a penalty other than jail, the Court can choose not to record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.

WHAT SHOULD I DO?

If you suspect that you may be under investigation, or if you have been charged with a crime relating to sexually offending against a child, it is absolutely vital to get competent legal advice immediately.

Rawlings Criminal Law will be guide you through the process, deal with the various official agencies involved in your matter, and provide you with expert advice and representation in Court.