Offences Against A Child
The law in Western Australia recognises that children under a certain age cannot give valid consent to the sexual behaviour or acts of another. Under the Criminal Code, the minimum age that a child can consent to behaviour of a sexual kind is 16 years.
Furthermore, where a child under the age of 18 years is under the care, supervision or authority of an adult it is a criminal offence to engage in sexual activity with a child or to encourage, procure or incite sexual activity with the child.
The law in WA relating to sexual offences against children exists primarily for their protection. It recognises that their age makes them particularly vulnerable and that the disparity in power, including the clear differences in their physical, social, emotional, and financial position means that there is no true equality in dealings between children and adults.
Andrew Williams Criminal Law Offices have extensive experience handling all types of child sex related charges under both federal and state law. Types of offences that are commonly handled by this office include but are not limited to:
- Indecent dealings with a child
- Sexual penetration of a child
- Possession of child exploitation material
- Persistent sexual conduct with a child
- Use electronic communication to procure, or expose a child to engage in sexual activity
- Sexual offences against a child by a person in authority
- Intra familial sex offences
Penalties for Different Types of Offences Against a Child
The penalties that apply for different types of sexual contact with children under 16 are set out in the table below.
PROVISION |
OFFENCE |
AGE OF CHILD |
MAXIMUM PENALTY |
---|---|---|---|
Section 321(2) | Sexual penetration of child | 13-16 | Imprisonment for 14 years (20 years if the child is under the offender's supervision or care) |
Section 321(3) | Procure, incite or encourage child to engage in sexual behaviour | 13-16 | Imprisonment for 14 years (20 years if the child is under the offender's supervision, care or authority) |
Section 321(4) | Indecent dealing with child | 13-16 | Imprisonment for 7 years (10 years if the child was under the offender's supervision, control or authority) |
Section 321(5) | Procure, incite or encourage child to do sexual act | 13-16 | Imprisonment for 7 years (10 years if the child was under the offender's supervision, control or authority) |
The penalties that apply for different types of sexual contact with children under the age of 13 are set out in the table below.
PROVISION |
OFFENCE |
AGE OF CHILD |
MAXIMUM PENALTY |
---|---|---|---|
Section 320(2) | Sexual penetration of child | 13 or under | Imprisonment for 20 years |
Section 320(3) | Procure, incite or encourage child to engage in sexual behaviour | 13 or under | Imprisonment for 20 years |
Section 320(4) | Indecent dealings with child | 13 or under | Imprisonment for 10 years |
Section 320(5) | Procure, incite or encourage to engage in indecent act | 13 or under | Imprisonment for 10 years |
Section 320(6) | Indecently record child | 13 or under | Imprisonment for 10 years |
The penalties that apply to sexual offences against children aged 16 or 17 by a person in authority are set out below.
PROVISION |
OFFENCE |
AGE OF CHILD |
MAXIMUM PENALTY |
---|---|---|---|
Section 322(2) | Sexual penetration of child | 16 - 17 | Imprisonment for 10 years |
Section 322(3) | Procure, incite or encourage to engage in sexual behaviour | 16 - 17 | Imprisonment for 10 years |
Section 322(4) | Indecent dealings with child | 16 - 17 | Imprisonment for 5 years |
Section 322(5) | Procure, incite or encourage to engage in indecent act | 16 - 17 | Imprisonment for 5 years |
Section 322(6) | Indecently record child | 16 - 17 | Imprisonment for 5 years |
Consent
Consent is the touchstone when determining whether sexual activity is legal or illegal. Pursuant to s 319(2) of the Criminal Code, consent means the following:
- consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;
- where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;
Importantly, in accordance with s319(2)(c) of the Criminal Code, a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child. This means that where a person is charged with sexual offences in relation to a child who is 13 years or younger, that accused person could not mount a defence that the child was consenting to the sexual activity.
This reflects the paramount concern to protect children from abuse because of the particular vulnerability of children by virtue of their age. The imbalance power dynamic between an adult and a child marked by disparities between physical, social, financial and emotional capabilities, mean that relations could rarely be considered as equal.
A particular issue arises in sentencing when it is suggested that the child was a willing participant of the sexual behaviour. However, this approach requires a great deal of care. A child under 16 or under 18 can consent to sexual activity but two considerations are important. First, there will be relatively few circumstances where this would be relevant. Second, whether there was valid consent or mere acquiescence or submission.
Notably, the law recognises that somewhat older children, who seem to be willing participants in sexual activity must be protected from themselves. It is generally accepted that when a child reaches the age of 16, they have sufficient maturity to consent to sexual activity.
It would be abhorrent to the law to recognise a consensual relationship between a child and an adult. However, the court will consider all the factual circumstances of the relationship and how it began when coming to its decision as to the appropriate penalty.
Seek Legal Advice
Offences against a child are serious matters and carry tough penalties upon conviction in Western Australia.
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.