Indecent Treatment of a Child

 
 
 
Indecent treatment of a child is a serious offence which typically proceeds on indictment in the District Court of Queensland. The offence is contained in section 210 of the Criminal Code 1899.

It is a broad offence which covers a range of conduct. The penalties depend on any circumstances of aggravation such as the child victim’s age and relationship with the offender. When it comes to sentencing, actual imprisonment must be imposed unless exceptional circumstances can be demonstrated.

What do the prosecution have to prove?

For the charge to be made out, section 210 requires the prosecution to prove ‘beyond a reasonable doubt’ that the defendant:

1. ‘indecently dealt’ with a child; or
2. unlawfully procured a child to commit an indecent act; or
3. unlawfully permitted a himself or herself to be indecently dealt with by a child; or
4. wilfully and unlawfully exposed a child to an indecent act by the offender or any other person; or
5. without legitimate reason, wilfully exposed a child to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or
6. without legitimate reason, took any indecent photograph or records, by means of any device, any indecent visual image of a child.

What does ‘child’ mean?

For the purposes of this offence, a child is a person under the age of 16.

What does ‘indecent’ mean?

‘Indecent’ is not defined in the Criminal Code. It is taken to mean indecent by contemporary community standards. In practice, this allows members of the jury in a trail to collectively decide whether the conduct in question is indecent.

By not confining indecent acts to a limited list of things, it allows for common-sense approaches and recognises the shifts in community standards over time.

How does indecent treatment differ from rape?

There can be overlap between indecent treatment by dealing with a child and the offence rape. However, there are two key differences.

First, for indecent treatment, the prosecution do not need to prove a lack of consent. For example, a consensual sexual act between a 16 and 15 year old would not amount to rape but could amount to indecent treatment.

Second, for indecent treatment, the prosecution do not need to prove that penetration occurred. Touching of external genitalia, breast or buttocks would not amount to rape but could amount to indecent treatment.

Defence of accident

While not always applicable, the defence of accident can be validly raised in a charge of indecent treatment. Where it is raised on the facts, the prosecution must be able to prove that the act in question was intentional.

Mistake of fact regarding age

A defence to the charge is also raised if it can be established that the defendant believed, on reasonable grounds, that the child was of or above the age of 16.

What are the usual penalties?

As with any offence of a sexual nature involving a child, actual imprisonment must be imposed unless exceptional circumstances exist. When considering whether exceptional circumstances exist, the Court will consider:

• The nature of the conduct in question
• The age of the child victim and relationship to the offender (offending by a parent or an adult in care of the child is treated as a gross breach of trust)
• Whether the offending is constituted by an isolated incident or ongoing incidents
• The age and personal features of the offender including any previous criminal history
• Steps taken towards rehabilitation

The maximum penalty for the offence depends on whether any legislated circumstances of aggravation exist. The possible maximum penalties are as follows:

Becoming a reportable offender

In most cases, any person convicted of the offence will automatically become a reportable offender for at least 5 years under the Child Protection (Offender Reporting) Act 2004. This involves regular reporting to police about contact with children and updating personal details.

Exceptions apply to individuals sentenced where convictions are not recorded. However, this is extremely rare for this type of offence.

What negotiations can be made?

For any offence of a sexual nature involving a child, negotiation can be difficult for a number of reasons. Most importantly, there is understandably a considerable public interest in prosecuting alleged abusers of children.

With offences involving a child victim, the timing of any negotiations are vital. This is because the ‘in-court evidence’ of children are recorded at an early stage, well before any trial. Even if a  plea of guilty is entered prior to the trial, the sentencing Court will have regard to the fact that the victim child was required to come to Court and be exposed to cross-examination.

Children (particularly young children) are often considered to less reliable witnesses than adults. Just like adults, they can exaggerate the truth or lie, even about serious things. If an accused person denies the allegations, sometimes the only avenue is to challenge the child witness about those matters. In situations where something did occur, but not in the way alleged, it may be appropriate to try to negotiate with the prosecution about the facts of the offence.

These are complex and sensitive issues that should always be decided with the guidance and advice of experienced criminal lawyers.

What Courts can the matters be heard in?

In almost all circumstances, the offence of indecent treatment of a child must proceed on indictment in the District Court. The only exception to this is where the child victim was at least 14 years old, there is no circumstance of aggravation and the defendant is pleading guilty (section 552B(1)(a) of the Criminal Code Act 1899).