Introduction
This offence, which used to be called “Carnal Knowledge of a child under 16”, is relatively self-explanatory, being that a person has penetrated a child’s vagina, vulva or anus with “the person’s” penis.
Under what law is the offence?
This offence is under section 215 of the Queensland Criminal Code Act.
Legal Elements
The Supreme and District Courts Criminal Directions Benchbook states the legal elements of the offence as:
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The prosecution must prove that there was an act of penile intercourse.
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The intercourse was of the vagina/vulva/anus of another person.
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The person was under 16 years.
Meaning of engage in penile intercourse:
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Penile intercourse is the penetration, to any extent, of the vagina, vulva or anus of a person by the penis of another person.
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A person engages in penile intercourse with another person if—
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The person penetrates, to any extent, the vagina, vulva or anus of another person with the person’s penis; or
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The person’s vagina, vulva or anus is penetrated, to any extent, by the penis of another person.
Some things to note about the legal elements
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The prosecution does not need to prove a lack of consent. It is legally irrelevant whether or not the complainant consented.
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The prosecution need not prove that the defendant knew the complainant was younger than 16.
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The definition of penile intercourse curiously substitutes masculine phrasing such as ‘his penis’ and ‘penis of a man’ with ‘the person’s penis’ or ‘the penis of another person’. One might speculate this is worded to capture occasions where ‘the person’ has a penis, but ‘identifies’ as female or non-binary.
Penalty
The maximum penalty for this offence is 14 years.
The Penalties and Sentences Act states that a person charged with this offence must serve an “actual term of imprisonment, unless there are exceptional circumstances.” The law allows a court to have regard to closeness in age between an offender and the child. For example, an age gap of 15 and 19 is obviously more favourable to a defendant than 14 and 40. But closeness of age is only one factor for the court to consider.
The consent of the child is not sufficient, of itself, to constitute exceptional circumstances.
Possible circumstances of aggravation
A circumstance of aggravation is something that can be alleged by the prosecution as an additional aspect to the charge that makes it more serious at law.
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For a circumstance of aggravation of the child being under the age of 12 years, the maximum penalty increases to life imprisonment.
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If the offender was the child’s guardian (but not of lineal descent) or the child was under the offender’s care, the maximum penalty increases to life imprisonment.
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If the child is a person with an impairment of mind, the maximum penalty increases to life imprisonment.
Defences
If the offence is alleged to have been committed against a child of or above the age of 12, it is a defence to for the accused person to prove that he believed, on reasonable grounds, that the child was of or above the age of 16 years.
The onus of proving the defence is on the defendant, on the balance of probabilities.
Section 229 of the Code expressly states it is immaterial that the accused person did not know that the person was under that age, or believed that the person was not under that age. Because of s 229, a defendant cannot raise a defence concerning the age of the complainant based on the defence of ‘honest and reasonable mistake fact’ , which would leave the onus of proof on the prosecution.
Which Court hears the Charge?
The matter starts in the Magistrates Court and then is committed to the District Court. Thus, any trial on this charge would be heard by a judge and jury.
Conclusion
Needless to say, charges of this kind are taken very seriously by the courts and the community. Should you find yourself accused of such a crime, it is absolutely vital you seek expert legal advice to assist you in getting the best outcome possible. We at Clarity Law are criminal and traffic law experts, experienced in defending such charges.
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