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Abduction of a Child Under the Age of 16 for a Sexual Purpose

– section 49P of the Crimes Act

 

Abduction of a Child Under the Age of 16 for a Sexual Purpose is used when the Police think that you have taken a young person somewhere without them agreeing while you are thinking you will perform a sexual act with them.

Examples of Abduction of a Child Under the Age of 16 for a Sexual Purpose
  • The mother is clear to 18 year old boyfriend that he is not to pick up the 15 year old daughter and take her away. He does so as they are having a sexual relationship.
  • Two people meet online. The parents tell the older one not to take the child anywhere. The 22 year old arranges to pick the 14 year old up in his car and to go to motel and have sex.

We had a case where a client was charged with this because he was taking a child from welfare and driving her off in his car. The Prosecution could not prove that he intended to, or did, have sex with her and so the charge was withdrawn.

What are some of the possible defences to a charge of Abduction of a Child Under the Age of 16 for a Sexual Purpose?

Obvious defences that are run to this charge:

  • There was no intention to have sex with the of the child.
  • There was no taking away of the child.
  • There was no indication that you were aware that they were not allowed to go with you.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Maximum penalty and Court that deals with this charge

There is a maximum penalty of level 6 imprisonment (5 years) for the offence of Abduction of a Child Under the Age of 16 for a Sexual Purpose.

This is a very serious charge that will normally result in a prison term – if you are found guilty.

It does not mean that a person will receive the maximum penalty upon being found guilty. The maximum is reserved for the worst example of the charge. The reason that the maximum is relatively low is that if there was a completed act of rape or some other offence then that would be charged as well.

Abduction of a Child Under the Age of 16 for a Sexual Purpose is a strictly indictable charge which means that your case must be heard in the County Court.

What is the legal definition of Abduction of a Child Under the Age of 16 for a Sexual Purpose?

The charge in essence is made out by taking a child, or getting someone else to, from the care of another person who has lawful charge of the child and having the intention that they will participate in sexual acts.

To prove a charge such as this the Prosecution must show that the accused has an intention to have sex with the child who has been abducted.

Legislation

The section that covers this offence is section 49P of the Crimes Act.1

Elements of the offence

A person will be found guilty of Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose if the following are established in court beyond reasonable doubt:

  1. The accused takes the victim away, AND
    This element will be proven if the accused takes away or detains the victim or causes the victim to be taken away or detained by another person.
  2. The victim is a child, AND
    The victim must be a child under the age of 16 years.
  3. The person in charge of the victim does not consent; AND
    The person who has lawful charge of the victim must not consent to the victim being taken away or detained. The person with lawful charge may be a parent, guardian, or teacher.
  4. The accused knows the victim is underage, AND
    The accused must know that the victim is a child under the age of 16 years; or that the victim is probably a child under the age of 16 years.
  5. The accused knows the person in charge doesn’t consent; AND
    The accused must know that the person in charge of the victim does not consent to the victim being taken away or detained; or that they probably don’t consent.
  6. The accused intends to take part in a sexual act with the victim; AND
    The accused must intend that the victim will take part in a sexual act with the accused or another person or both.
  7. The sexual act would be an offence
    B taking part in the sexual act must involve the commission by the accused, or the other person, or both, of an offence against section 38(1), 39(1), 40(1), 41(1) of the Crimes Act 1958, or against Subdivisions 8A to 8G.

 


[1] Crimes Act 1958 – Section 49P

(1) A person must not take away a child under the age of 16 against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage with him or her or any other person.
Penalty: Level 6 imprisonment (5 years maximum).
(2) A person must not cause a child under the age of 16 to be taken away against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage with him or her or any other person.
Penalty: Level 6 imprisonment (5 years maximum).