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Sections 320 and 321 of the Criminal Code make it an offence to indecently deal with a child. In relation to many sexual offences, lack of consent is a crucial element. However, the law recognises that children under a certain age are unable to give a valid consent. Therefore, consent in these types of cases is not an issue.
To “deal with”, for the purposes of indecent dealing is broad in its definition and includes committing any act of indecency towards a child, in the presence of a child, or procuring or encouraging a child to engage in indecent acts with another.
Various maximum penalties are made available under the Criminal Code for the offence of indecent dealings with a child. The penalties vary depending upon the age of the child and the particular circumstances.
A person is considered to have indecently dealt with a child, where they have committed the following acts:
The various penalties are set out below:
Given the seriousness of the offending, a term of immediate imprisonment would likely be imposed where a person is convicted under ss 320 and 321 of the Criminal Code and the imposition of a non-custodial penalty is rare.
It is a defence to a charge of indecent dealings with a child between the age of 13 and 16 years, if the accused believed on reasonable grounds that the child was of or over the age of 16 years and was not more than 3 years older than the child.
It is also a defence to a charge of indecent dealing with a child between 13 and 16 years to prove that the accused was lawfully married to the child.
A person indecently deals with a child when they engage in conduct with the child that is unbecoming or offensive toward common propriety. This can include sexual penetration, indecently touching, procuring or encouraging a child to engage in indecent acts, or indecently recording a child. Conduct in the presence of a child that would reasonably be regarded as indecent also constitutes the offence.
Yes. The severity depends on the child’s age and the circumstances. Higher penalties apply if the child is under 13 years, or if the child is under 16 and the offender is in a position of care, supervision, or authority. The law recognises that younger children and situations involving a power imbalance make the offence more serious.
Penalties vary according to age and circumstances:
Convictions carry serious consequences, including imprisonment and a lasting criminal record.
Consent is not relevant, as children under the specified age cannot legally consent to sexual activity.
Accused persons retain all standard criminal law rights. They are presumed innocent, have the right to remain silent, and can access legal representation. They may challenge evidence and, if the matter proceeds to trial, can cross‑examine all relevant witnesses (including the complainant child) and present legal arguments.
More often than not indecent dealing with child charges are defended on the basis that the allegations are fabricated and not true. However, it is also a defence to prove that the accused honestly and reasonably believed that the child was 16 or older and that the accused was not more than three years older than the child. It is also a defence to prove that the accused was lawfully married to the child.
Anyone charged should seek legal advice immediately. Avoid speaking to the police without a lawyer present. Early engagement with a criminal lawyer is critical to determine the best defence strategy.
Offences against a child are serious matters and carry tough penalties upon conviction in our state.
Have you recently been charged with an offence against a child? If so, contact the Andrew Williams Criminal Law Offices and speak with an experienced criminal lawyer.
You can reach us on (08) 9278 2575.
