Sexual conduct against children is governed by numerous differing offences. At the most serious are offences of rape and maintaining an unlawful sexual relationship with a child, which are both punishable by life imprisonment. While less serious charges like performing an indecent act can carry a lesser maximum penalty (14 to 20 years imprisonment), it is also treated very seriously and will ordinarily result in a term of imprisonment.
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—
Is guilty of an indictable offence.
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 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.
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—
Possessing Child Exploitation Material is an offence stated as:
A person who knowingly possesses child exploitation material commits a crime.
Maximum penalty —
Possible defences include, but are not limited to:
Making Child Exploitation Material is an offence stated as:
A person who makes child exploitation material commits a crime.
In this section –
Maximum penalty— 14 years imprisonment.
Possible defences to Making Child Exploitation Material include, but are not limited to:
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 –
Maximum penalty— 14 years imprisonment
Possible defences to Distributing Child Exploitation Material include, but are not limited to:
Incest is an offence stated as:
Any person who—
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.
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.
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.
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.
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.
Our key function as your defence is to argue against the prosecutor’s submissions by presenting your information in a meaningful, relevant, legally admissible, and persuasive way.
In building our strongest application for you to be granted bail, we will design and structure your submission so that: