Persistent sexual abuse of a child under the age of 16
49J Persistent sexual abuse of a child under the age of 16
S. 49J inserted by No. 47/2016 s. 16.
A person (A) commits an offence if—
A sexually abuses another person (B) on at least 3 occasions during a particular period; and
B is a child under the age of 16 years during the whole of that period.
A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
S. 49J(2A) inserted by No. 34/2017 s. 32(1).
The standard sentence for an offence against subsection (1) is 10 years.
It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
It is not necessary to prove conduct constituting sexual abuse with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that conduct instead of an offence against subsection (1).
For the purposes of subsection (1), A sexually abuses B if A engages in conduct that would involve the commission by A of any of the following—
an offence against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences);
an offence against section 49A(1) (sexual penetration of a child under the age of 12);
an offence against section 49B(1) (sexual penetration of a child under the age of 16);
an offence against section 49D(1) (sexual assault of a child under the age of 16);
an offence against section 49F(1) (sexual activity in the presence of a child under the age of 16);
an offence against section 49H(1) (causing a child under the age of 16 to be present during sexual activity);
an offence against a provision of Subdivision (8C) (incest).
Nothing in this section affects the operation of any exception or defence applicable or available to A in respect of the offence constituting the sexual abuse.
If, on the trial of A for an offence against subsection (1), the jury is not satisfied that A is guilty of that offence but is satisfied that A engaged in conduct during the particular period that constitutes one or more instances of an offence against a provision referred to in subsection (5)—
the jury—
must find A not guilty of the offence against subsection (1); and
may find A guilty of the one or more instances of an offence against a provision referred to in subsection (5); and
A is liable to the penalty for any offence of which, in accordance with this subsection, A is found guilty.
Subsection (7) does not restrict the operation of section 239 of the Criminal Procedure Act 2009.
A prosecution for an offence under subsection (1) must not be commenced without the consent of the Director of Public Prosecutions.
Note to s. 49J inserted by No. 65/2016 s. 24(2), substituted as Notes by No. 34/2017 s. 32(2).
Notes
1 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.
2 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
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