s229B Criminal Code 1899 makes it an offence to maintain a sexual relationship with a child under 16.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt that:
1. The defendant was an adult.
2. The complainant was at the time a child under 16.
3. An unlawful sexual relationship involving more than one unlawful sexual act over any period.
What it means.
“Unlawful sexual act” means an offence of:
• Indecent Dealing with a Child under 16 (s210(1)(a)-(d) Criminal Code)
• Unlawful Carnal Knowledge of a Child under 16 (s215 Criminal Code)
• Incest (s222 Criminal Code)
• Rape (s349 Criminal Code)
• Attempted Rape (s350 Criminal Code)
Maintain means keep up or continue. The prosecution must prove some continuity or habituality of sexual conduct, not just isolated incidents.
The prosecution do not have to prove the complainant did not consent. The law provides that a child under 16 cannot provide legal consent to any sexual activity.
If the complainant is over the age of 12 it is a defence to prove the defendant believed on reasonable grounds the complainant was over the age of 16.
The defence of Mistake of Fact is not available if the child is under 12.
The available defences.
Mistake of Fact as to age if the complainant is over 12. The defendant bears the onus of proof.
The usual penalties.
The maximum penalty for the criminal offence of Maintaining a Sexual Relationship of a Child under 16 is life imprisonment.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly ever imposed.
The law mandates that the court must impose a sentence of actual imprisonment unless there are exceptional circumstances. Exceptionally circumstances can comprise of a number of individual circumstances that are collectively exceptional.
This offence will inevitably attract a sentence of actual imprisonment though the term will vary.
Factors that affect the appropriate penalty include the age of the child, the age of the offender, the duration of the offending, and the impact on the child.