Criminal Code Act 1899

Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.Maximum penalty—life imprisonment.

Any adult who has a child of or above the age of 16 under their care, supervision or authority and maintains an unlawful sexual relationship with the child commits a crime.Maximum penalty—life imprisonment.

An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.

For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.

However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—

the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and

all the members of the jury are not required to be satisfied about the same unlawful sexual acts.

If the child was at least 12 years when the crime was alleged to have been committed, it is a defence to a charge of an offence against subsection (1) to prove the adult believed on reasonable grounds the child was at least the age of 16 years.

It is a defence to a charge of an offence against subsection (1A) that—

the adult believed on reasonable grounds that the child was at least 18 years of age; or

all of the following apply—

the adult is not a person referred to in section 210A(3);

the adult was less than 3 years older than the child;

the acts or omissions that constitute the offence did not, in the circumstances, constitute sexual exploitation of the child; or

the adult and the child were lawfully married.

An adult can not be prosecuted for the crime without a Crown Law Officer’s consent.

The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for the crime.

An adult may be charged in 1 indictment with—

the offence of maintaining an unlawful sexual relationship with a child (the maintaining offence); and

1 or more other offences of a sexual nature alleged to have been committed by the adult in relation to the child in the course of the alleged unlawful sexual relationship (the other offence or offences).

The adult charged in 1 indictment as mentioned in subsection (7) may be convicted of and punished for any or all of the offences charged.

However, if the adult is—

charged in 1 indictment as mentioned in subsection (7); and

sentenced to imprisonment for the maintaining offence and for the other offence or offences;

the court imposing imprisonment may not order that the sentence for the maintaining offence be served cumulatively with the sentence or sentences for the other offence or offences.

Note—See the Penalties and Sentences Act 1992, section 155 (Imprisonment to be served concurrently unless otherwise ordered).

The heading of this section—

is not part of this section, despite the Acts Interpretation Act 1954, section 14; and

is not intended to affect the interpretation or operation of this section.

Note—Parliament, in amending the heading of this section by the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 did not intend to change the nature or scope of this offence or the requirements for establishing an offence against this section.

In this section—offence of a sexual nature means—

for subsection (1), an offence defined in section 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352; and

for subsection (1A), an offence defined in section 210A.

unlawful sexual act means an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature.

To remove any doubt, it is declared that the persons in section 210A(3) are taken, for the purpose of subsection (1A), to have a child under their care, supervision or authority.

Notes—

1 See sections 746 and 747 in relation to—

the application of this section in relation to acts done before 3 July 1989; and

the application of this section during the period 3 July 1989 to 30 April 2003.

2 See section 767 in relation to the application of subsection (1A).

sch 1 pt 4 ch 22 s 229B ins 1989 No. 17 s 23