Defence based on valid and genuine marriage
272.17 Defence based on valid and genuine marriage
It is a defence to a prosecution for an offence against subsection 272.12(1) or 272.13(1) if the defendant proves that:
at the time of the sexual intercourse or sexual activity, there existed between the defendant and the young person a marriage that was valid, or recognised as valid, under the law of:
the place where the marriage was solemnised; or
the place where the sexual intercourse or sexual activity is alleged to have taken place; or
the place of the defendant’s residence or domicile; and
when the marriage was solemnised:
the marriage was genuine; and
the young person had attained the age of 16 years.
A defendant bears a legal burden in relation to the matter in this section: see section 13.4.
Subsection 272.12(1) deals with engaging in sexual intercourse with a young person outside Australia. Subsection 272.13(1) deals with engaging in sexual activity (other than sexual intercourse) with a young person outside Australia. Both offences apply to defendants in a position of trust or authority in relation to the young person concerned.
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