What Does the Prosecution Have to Prove?

If a person is charged under section 50 of the Criminal Law Consolidation Act 1935 (SA), the Office of the Director of Public Prosecutions (DPP) must convince a judge or jury of the existence of the relationship beyond a reasonable doubt.

The Prosecution is required to establish the general nature and character of the acts, but not the exact details of each sexual act. Moreover, if the trier of fact is a jury, they do not need to agree on which specific acts constitute the unlawful sexual relationship. They must be satisfied, however, with the overall nature of the acts.

The very mischief the relationship offence seeks to address is to remove the requirement to prove particular offences to found the offence. This is achieved by making the maintaining of an unlawful relationship, rather than the particular unlawful sexual acts underlying it, the illegal act of the offence. It also clearly removes the requirement for extended jury agreement as to the underlying sexual acts.

The serious nature of this offence is a reflection of Australia’s commitment to protect the rights and wellbeing of children.

Are There Any Defences For Having an Unlawful Sexual Relationship With a Child?

Our experienced criminal defence lawyers have successfully defended individuals charged with having an unlawful sexual relationship with a child by arguing that:

• Lack of Evidence: If the Prosecution cannot prove beyond reasonable doubt that the accused maintained an unlawful sexual relationship with a child, then this can be a strong defence.
• Mistaken Identity: If the accused can provide evidence that they were not the adult involved in the alleged sexual relationship, they can claim mistaken identity as a defence.
• False Accusations: If the accused can provide evidence suggesting they have been falsely accused of the offence, this can form a defence.

What is a Position of Authority?

A ‘position of authority’ is defined in section 50(13) of the Criminal Law Consolidation Act SA 1935 and can mean the following:

• The adult is a teacher and the child is their pupil, or a pupil at the school where the teacher works.
• The adult is a parent, step-parent, guardian, or foster parent of the child, or is the de facto or domestic partner of the child’s parent, step-parent, guardian, or foster parent.
• The adult provides the child with religious, sporting, musical, or other instruction.
• The adult is a religious official, spiritual leader, or lay member (paid or unpaid) in a religious or spiritual group that the child attends.
• The adult is a health professional or social worker providing professional services to the child.
• The adult is responsible for a child who has a cognitive impairment.
• The adult is employed or provides services in a correctional institution or a training centre, or is a person involved in the administration of those Acts, acting in the course of their duties concerning the child.
• The adult is employed or provides services in a licensed children’s residential facility, a residential care facility, or another facility established under Section 36 of the Family and Community Services Act 1972, or is a person involved in the administration of those Acts, acting in the course of their duties concerning the child.
• The adult is the child’s employer or has the authority to determine significant aspects of the child’s employment terms or terminate their employment, regardless of whether the child is paid or volunteers.

What Happens After Being Charged With Having an Unlawful Sexual Relationship With a Child?

Following a police interview and upon being charged for having an unlawful sexual relationship with a child, the accused appears in the Magistrates Court of South Australia, and the case may later be committed to the District Court for trial or sentencing.

If you are charged with this offence, you should seek legal representation and advice at the earliest opportunity from a specialist criminal defence lawyer. Our experienced criminal lawyers can assist you with the preparation of your defence and represent you at Court hearings in the Magistrates Court, District Court and Supreme Court of South Australia.

If you are guilty of the offence, we can assist you by entering your plea of guilty and making submissions on your behalf to try and get the penalty reduced.