Indecent Treatment of a Child

What is indecent treatment of a child under 16?

Section 210 Criminal Code Act 1899 (Qld) makes it an offence to involve a child under 16 in indecent conduct in a number of ways.

That includes:

• indecently dealing with a child

• getting a child to commit an indecent act

• allowing a child to indecently deal with you

• exposing a child to an indecent act

• showing a child indecent material

• taking or recording indecent images of a child

All of this must be unlawful and indecent. The law is deliberately broad. It captures both physical and non-physical conduct, including online behaviour.

Do police have to prove the child did not consent?

No. For this offence, the prosecutor does not need to prove the lack of consent. This is because a child under 16 is treated by law as incapable of giving legal consent to indecent conduct. This is one of the main difference with this charge, to charges of rape or sexual assault, where the prosecutor is required to prove the lack of consent.

What do police have to prove?

The prosecution must prove beyond reasonable doubt that:

• the complainant was under 16

• the accused engaged in one of the acts in section 210 Criminal Code Act 1899 (Qld)

• the conduct was indecent

• the conduct was unlawful

• the accused was the person involved

The definition of ‘deals with’ is also important. It includes conduct that would amount to an assault if done without consent. To successfully defend a charge of indecent treatment, an experienced criminal lawyer can examine whether there is a gap in the evidence to one or more of these elements.

What does ‘indecent’ mean?

Whether conduct is ‘indecent’ depends on context. This is frequently an area of dispute at trial. The court will assess indecency objectively, based on community standards. The High Court has confirmed that indecency is judged by the standards of ordinary decent people, taking into account the circumstances of the act (see R v Harkin (1989) 38 A Crim R 296).

In practice, the court looks at:

• the nature of the conduct

• the age of the child

• the relationship between those involved

• the context in which it occurred

It does not require physical contact. Exposure, communication, or showing material can be enough. These cases often turn on how the evidence is analysed, particularly digital material.

Can you be charged without any physical contact?

Yes. Section 210 Criminal Code Act 1899 (Qld) specifically includes:

• exposing a child to an indecent act

• showing indecent material

• recording indecent images

This includes allegations involving phones or online communication.

What is the maximum penalty for a charge of indecent treatment?

The maximum penalty depends on the age of the child and the circumstances.

• Child aged 12 to 15 – up to 14 years imprisonment

• Child under 12 – up to 20 years imprisonment

The maximum also increases to 20 years where:

• the child is under the offender’s care or a relative

• the offender knows the child has an impairment of the mind

What if I thought the child was over 16 years old?

There is a limited defence. If the child was 12 or older, it is a defence to prove that you honestly and reasonably believed they were at least 16.

This is not a low threshold. The belief must be:

• genuinely held, and

• reasonable when the circumstances are examined

That defence comes from section 210(5) Criminal Code Act 1899 (Qld), which states, if the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years.

How to defend a charge of indecent treatment of a child?

Common criminal law defence strategies for a charge of indecent treatment of a child includes:

• identification – whether the accused was the person involved

• whether the conduct actually occurred

• whether the conduct was indecent in context

• whether the prosecution can prove the case beyond reasonable doubt

• mistake of fact as to age (where available)

In digital cases, a key issue is often whether the prosecution can prove who was using a device or account.

Which court will hear the charge?

All criminal charges will start in the Magistrates Court. The charge will then proceed through a ‘committal hearing’, and then be transferred to the District Court. This process can be anywhere from 6 months.

Once transferred, the prosecutor then has a further 6 months to present an ‘indicment’ in the District Court. This will formally introduce the case into the District Court. The case will then be listed either for trial or sentence.

Will I go to prison for a charge of indecent treatment of a child?

The sentencing outcome will depend on the circumstances in each case. This is a serious offence and if convicted, there is a high risk of actual imprisonment. This is particularly where:

• the child is younger

• the conduct is repeated or deliberate

• the injury or harm which occured

Further, sexual offences involving children have a different set of sentencing principles in Queensland, under section 9 of the Penalties and Sentences Act 1992 (Qld).

The section provides that, for offences of a sexual nature involving a child under 16, the usual principle that imprisonment is a last resort does not apply. Instead, the court must approach sentencing on the basis that an offender will serve an actual term of imprisonment unless there are exceptional circumstances. This means that a person convicted of this charge will serve an actual time in custody, unless the court is satisfied there are exceptional circumstances.

When considering if there are exceptional circumstances, the court will assess it by the following principles:

• closeness in age between the offender and the child

• effect of the offence on the child

• age of the child

• nature of the offence, including any physical harm or threat of harm to the child or another

• need to protect the child or other children from the risk of reoffending

• any relationship between the offender and the child

• need to deter similar behaviour by other offenders to protect children

• prospects of rehabilitation, including availability of treatment

• offender’s antecedents, age and character

• any remorse or lack of remorse of the offender

• any medical, psychiatric, prison or other relevant report relating to the offender

• anything else about the safety of children under 16 the court considers relevant

Therefore, it is critical to obtain early advice from an experienced sexual offence lawyer to prepare material and submissions which support the above arguments.

Recent changes in the Penalties and Sentences Act 1992 (Qld) also limits the weight that can be given to good character evidence. The court is now not required to into account good character, if it assisted the offender in committing the offence. This includes situations where sexual offences occur in circumstances where trust or reputation played a role in the alleged conduct.

Overall, the law makes it clear that child sexual offences are treated as a distinct and more serious category and so advice from a sexual offence lawyer experienced in these types of charges is critical.

What should I do if I am being investigated by the police?

If you are being investigated or charged with a serious sexual offence:

• do not answer police questions without legal advice

• keep any messages or material that may be relevant to your defence and provide it to your criminal lawyer

• do not contact the complainant or witnesses

• get urgent legal advice before making decisions

Early advice is critical.