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Sexual intercourse with child under special care

Sexual intercourse with a child between the age of 16 and 18 under special care is an offence under section 73 of the Crimes Act 1900 (NSW). The maximum penalty if the victim is 16 years of age is imprisonment for 8 years. The maximum penalty if the victim is 17 years of age is imprisonment for 4 years.

This charge cannot be heard before a magistrate in the Local Court and is heard in the District Court.

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What the prosecution must prove

To prove the charge, the prosecution must show beyond reasonable doubt that:

  • A person has sexual intercourse with another person,
  • Who is aged between 16 or 17 years
  • And who was under the persons special care

What is “special care”?

The Crimes Act states that the victim is under the special care of the offender if:

  • The offender is the step-parent, guardian or foster parent of the victim
  • The offender is a school teacher and the victim is a pupil of the offender
  • The offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim
  • The offender is a custodial officer of an institution of which the victim is an inmate
  • The offender is a health professional and the victim is a patient of the health professional

What is “sexual intercourse”?

Sexual intercourse is defined as the penetration of the genitals of a female or the anus or mouth of any person by the body of another person or an object manipulated by another person. Sexual intercourse also includes cunnilingus.

Defences

You may have a defence if:

  • You did not have sexual intercourse with the complainant

The consent of the victim to sexual intercourse is not a defence to this charge.

Will I go to jail?

As with all sexual offences this charge is serious and carries gaol as a maximum penalty. Upon conviction the sentence imposed will depend on a range of factors including the facts of the case, whether there was a plea of guilty, whether remorse has been shown, the criminal history and personal circumstances of the offender as well as other matters.