Under Section 322, it is a criminal offence for a person in a position of authority to engage in sexual activities with a child aged 16 or 17 under their care, supervision, or authority. These laws exist to protect young individuals from potential exploitation by those in positions of trust, such as teachers, employers, or guardians.
Definition of “Care, Supervision, or Authority”:
This term includes relationships where an adult holds a position of trust or influence over the child, such as:
- Teachers
- Employers
- Guardians
- Coaches
Definition of Offences Under the Criminal Code 322
The Criminal Code Act Compilation Act 1913 (WA) outlines specific offences for individuals in positions of authority, including:
- Sexual penetration of a child aged 16 or 17 under their supervision.
- Indecent dealings with a child in their care.
- Procuring or encouraging a child to engage in sexual or indecent acts.
- Indecent recording of a child aged 16 or 17.
These offences carry significant penalties, reflecting the seriousness of breaching the trust and authority placed in individuals responsible for a young person’s welfare.
Offences Under Section 322
The Criminal Code Act Compilation Act 1913 (WA) identifies several criminal offences related to sexual conduct by persons in authority:
1. Sexual Penetration of a Child in Authority
- If a person in authority sexually penetrates a child under their care, they commit an offence.
- Penalty: Up to 10 years’ imprisonment (s.322(2)).
2. Procuring, Inciting, or Encouraging Sexual Behaviour
- Persuading or encouraging a child under their care to engage in sexual behaviour is an offence.
- Penalty: Up to 10 years’ imprisonment (s.322(3)).
3. Indecent Dealing with a Child in Authority
- Engaging in indecent conduct with a child under their care is a criminal act.
- Penalty: Up to 5 years’ imprisonment (s.322(4)).
4. Procuring, Inciting, or Encouraging an Indecent Act
- Encouraging a child under their authority to engage in an indecent act is a criminal offence.
- Penalty: Up to 5 years’ imprisonment (s.322(5)).
5. Indecently Recording a Child in Authority
- Taking or making indecent recordings of a child under their care is illegal.
- Penalty: Up to 5 years’ imprisonment (s.322(6)).
Defences and Legal Considerations
Belief About Age is Not a Defence
Under Section 322(7), a person cannot argue that they reasonably believed the child was 18 or older as a defence. The law holds individuals in positions of authority to a strict standard to prevent exploitation, regardless of any misunderstanding about age.
Lawful Marriage as a Defence
A defence may apply under Section 322(8) if the accused was lawfully married to the child at the time of the offence. However, under Australian marriage laws, individuals under 18 years generally cannot marry unless court approval has been granted in exceptional circumstances, making this defence uncommon.
Care, Supervision, or Authority
Section 322 is designed to protect young people from exploitation in relationships where power imbalances exist. These imbalances can arise from age, social position, or authority, allowing an individual to exert influence over a child.
Whether a child was under the care, supervision, or authority of the accused is determined by the facts of the case and is ultimately a question for the jury. These terms have distinct meanings, and a case may involve one or more of them. The offence is established if it is proven that sexual activity occurred and that at least one of these relationships existed.
Given the serious legal consequences under Section 322, seeking legal advice at the earliest opportunity is essential.
Seek Legal Advice if You Have Been Charged
If you have been charged under Section 322 of the Criminal Code (WA), it is important to seek legal advice as soon as possible. These offences carry serious legal consequences, and understanding your rights and options early can make a difference in how your case is handled.
At WN Legal, we take a practical and thorough approach to your matter. We will carefully review the allegations, assess the evidence, and provide you with clear guidance on your legal position.
Our legal team can assist you with:
- Reviewing the strength of the case against you.
- Advising on possible outcomes and what to expect.
- Exploring defences that may be available to you.
- Guiding you through the court process and next steps.
Understanding your legal options can help you move forward with confidence. Contact WN Legal today for confidential legal advice.
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FAQs
What constitutes a child sexual offence by a person in care, supervision, or authority?
Under Section 322 of the Criminal Code, it is an offence for someone who has a child aged 16 or 17 under their care, supervision, or authority to engage in sexual activities with that child. This includes acts such as sexual penetration, indecent dealings, or encouraging the child to engage in sexual behaviour.
Who is considered a 'child' under Section 322?
For the purposes of this section, a ‘child’ is defined as an individual aged between 16 and 18 years. This also applies to someone who appears to be within this age range in the absence of definitive evidence.
What are the penalties for offences under Section 322?
The penalties vary depending on the nature of the offence:
- Sexual penetration: Up to 10 years’ imprisonment.
- Procuring, inciting, or encouraging sexual behaviour: Up to 10 years’ imprisonment.
- Indecent dealings: Up to 5 years’ imprisonment.
- Procuring, inciting, or encouraging indecent acts: Up to 5 years’ imprisonment.
- Indecently recording the child: Up to 5 years’ imprisonment.
Is believing the child was over 18 a valid defence?
No, under Section 322(7), it is not a defence to claim that you believed the child was over 18, even if that belief was reasonable.
What defines 'care, supervision, or authority'?
This refers to relationships where an individual holds a position of power over the child, such as a teacher, employer, guardian, or mentor. These relationships are characterised by imbalances in power due to factors like age or social position.
How is it determined if such a relationship existed?
The existence of a care, supervision, or authority relationship is determined based on the specific facts of each case and is ultimately a question for the jury.
Will I be put on the Sex Offender Register? Will my details be made public?
Depending on the type of sex offence, it is mandatory to register an offender on the Sex Offender Register once the offender is convicted (ie once the offender enters a plea of guilty or if found guilty after trial). Your details will be made available on a register. However, any person who intends to access the Sex Offender Register will have to make themselves known to the relevant authorities before they can access the Sex Offender Register.
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