i Under Section 321A, it is a criminal offence for a person to engage in persistent sexual conduct with a child under the age of 16. This offence occurs when a person commits sexual acts with the same child on at least three separate days, regardless of whether the acts are the same type of offence or whether some took place outside Western Australia. Under Section 321A, a sexual act includes offences under sections 320(2), 320(3), 320(4), 321(2), 321(3), and 321(4). These involve: Under Section 321A of the Criminal Code Act Compilation Act 1913 (WA), a person engages in persistent sexual conduct with a child under 16 if they commit sexual acts with the same child on at least three separate occasions, each on a different day. Key elements of persistence include: By defining persistence in this way, the law ensures that repeat offenders cannot escape prosecution due to a lack of precise records. This provision closes potential loopholes and reinforces protections for children against ongoing sexual abuse.What is Considered a Sexual Act?
What Does “Persistent” Mean in This Context?
Penalties and Legal Considerations Under Section 321A
A person found guilty of persistent sexual conduct with a child under 16 under Section 321A faces a maximum penalty of 20 years’ imprisonment.
Charge Requirements
A charge under this section must:
- Specify the time period in which the alleged offences took place (Section 321A(5)(a)).
- Not require the prosecution to provide exact dates or details of each individual act (Section 321A(5)(b)).
Additional Charges
A person charged under Section 321A may also face separate charges for individual sexual offences that occurred during the same timeframe. These charges can be laid alongside or in addition to the primary offence (Section 321A(6)).
Defences to a Charge Under Section 321A
There are limited defences available under this section. The accused may have a legal defence if they can establish one of the following:
- They reasonably believed the child was 16 years or older, and they were no more than three years older than the child at the time.
- They were legally married to the child when the alleged offence took place.
The burden is on the accused to prove these defences, and the court will assess whether the belief was reasonable based on the circumstances.
Jury Considerations in Trial
In cases where the prosecution presents four or more instances of alleged sexual conduct, the jury does not need to unanimously agree on the specific acts or the exact dates they occurred. Instead, they must be satisfied that persistent sexual conduct took place within the period specified in the charge.
Outcome if Found Not Guilty
Even if the accused is not convicted under Section 321A, they may still be found guilty of individual sexual offences that were alleged to have occurred within the same timeframe, provided the evidence supports those charges.
Given the serious legal consequences under Section 321A, seeking legal advice at the earliest opportunity is essential.
Seek Legal Advice if You Have Been Charged
If you have been charged under Section 321A 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 is ‘persistent sexual conduct with a child’?
Under Section 321A of the Criminal Code, this offence applies when a person engages in sexual acts with a child under 16 on three or more separate occasions. These acts can include:
- Indecent dealings with the child
- Encouraging or coercing the child into sexual behaviour
- Sexual penetration
At least one of the acts must have taken place in Western Australia for the charge to apply, even if some incidents occurred elsewhere.
What are the legal consequences of this offence?
Under Section 321A of the Criminal Code, a person convicted of this offence can face a maximum sentence of 20 years in prison. These cases are prosecuted in the District Court.
Are there any defences available for this charge?
Yes, there are specific defences under Section 321A(9) of the Criminal Code, including:
- Belief about age – If the accused can prove they reasonably believed the child was 16 or older and that they were not more than three years older than the child.
- Marriage – If the accused was legally married to the child at the time of the offence.
What factors does the court consider during sentencing?
When determining a sentence, the court will consider:
- The nature and severity of the conduct
- The ages of both the offender and the victim
- Whether the offender was in a position of trust or authority over the child
- Any coercive or forceful behaviour involved
- The impact on the victim, including psychological harm
In general, these offences result in immediate imprisonment. Non-custodial sentences are rare and only granted in exceptional circumstances.
Why are these offences treated so seriously?
Offences involving child sexual abuse are considered extremely serious due to the vulnerability of child victims and the long-term harm caused. The law is designed to protect children and deter offenders by enforcing severe penalties.
What should I do if charged with this offence?
If you are charged with an offence against a child, seek legal advice immediately. A criminal lawyer in Perth can provide legal guidance specific to your situation. Contact our team today for a consultation regarding your case.
How does this offence differ from other child-related offences?
While there are multiple offences related to unlawful sexual conduct with children, persistent sexual conduct with a child specifically refers to three or more separate incidents involving the same child under 16. Other offences may involve:
- A single incident of unlawful sexual conduct
- Indecent dealings with a child
- Using electronic communication to procure a child for sexual activity
Can someone be charged for each individual act as well as the persistent conduct charge?
Yes. A person can be charged for each separate sexual act committed against a child, in addition to being charged under persistent sexual conduct with a child.
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