South Australian Current Acts South Australian Current Acts50—Sexual abuse of a child
(1) An adult who
maintains an unlawful sexual relationship with a child is guilty of an
offence.
Maximum penalty: Imprisonment for life.
(2) An "unlawful
sexual relationship" is a relationship in which an adult engages in 2 or more
unlawful sexual acts with or towards a child over any period.
(3) For an adult to be
convicted of an unlawful sexual relationship offence, the trier of fact must
be satisfied beyond reasonable doubt that the evidence establishes that an
unlawful sexual relationship existed.
(4) However—
(a) the
prosecution is not required to allege the particulars of any
unlawful sexual act that would be necessary if the act were charged as a
separate offence; and
(b) the
trier of fact is not required to be satisfied of the particulars of any
unlawful sexual act that it would have to be satisfied of if the act were
charged as a separate offence, but must be satisfied as to the general nature
or character of those acts; and
(c) if
the trier of fact is a jury, the members of the jury are not required to agree
on which unlawful sexual acts constitute the unlawful sexual relationship.
(5) The prosecution is
required to allege the particulars of the period of time over which the
unlawful sexual relationship existed.
(6) This section
extends to a relationship that existed wholly or partly before the
commencement of this section and to unlawful sexual acts that occurred before
the commencement of this section.
(7) A person may be
charged on a single indictment with, and convicted of and punished for,
both—
(a) an
offence of maintaining an unlawful sexual relationship with a child; and
(b) 1 or
more sexual offences committed by the person against the same child during the
alleged period of the unlawful sexual relationship.
(8) Except as provided
by subsection (7)—
(a) a
person who has been convicted or acquitted of an unlawful sexual
relationship offence in relation to a child cannot be convicted of a sexual
offence in relation to the same child if the occasion on which the sexual
offence is alleged to have occurred is during the period over which the person
was alleged to have committed the unlawful sexual relationship offence; and
(b) a
person who has been convicted or acquitted of a sexual offence in relation to
a child cannot be convicted of an unlawful sexual relationship offence in
relation to the same child if the sexual offence of which the person has been
convicted or acquitted is one of the unlawful sexual acts that are alleged to
constitute the unlawful sexual relationship.
(9) A person who has
been convicted or acquitted of a predecessor offence in relation to a child
cannot be convicted of an unlawful sexual relationship offence in relation to
the same child if the period of the alleged unlawful sexual relationship
includes any part of the period during which the person was alleged to have
committed the predecessor offence.
(10) For the purposes
of this section, a person ceases to be regarded as having been convicted for
an offence if the conviction is quashed or set aside.
(11) A court
sentencing a person for an offence against this section is to sentence the
person consistently with the verdict of the trier of fact but having regard to
the general nature or character of the unlawful sexual acts determined by the
sentencing court to have been proved beyond a reasonable doubt (and, for the
avoidance of doubt, the sentencing court need not ask any question of the
trier of fact directed to ascertaining the general nature or character of the
unlawful sexual acts determined by the trier of fact found to be proved beyond
a reasonable doubt).
(12) In this
section—
"adult" means a person of or over the age of 18 years;
"child" means—
(a) a
person who is under 17 years of age; or
(b) a
person who is under 18 years of age if, during the period of the relationship
that is the subject of the alleged unlawful sexual relationship offence, the
adult in the relationship is in a position of authority in relation to the
person who is under 18 years of age;
"predecessor offence" means an offence of persistent sexual exploitation of a
child, or of persistent sexual abuse of a child, as in force under a previous
enactment;
"sexual offence" means—
(a) an
offence against Division 11 (other than sections 59 and 61) or
sections 63B, 66, 69 or 72; or
(b) an
attempt to commit, or assault with intent to commit, any of those offences; or
(c) a
substantially similar offence against a previous enactment;
"unlawful sexual act" means any act that constitutes, or would constitute (if
particulars of the time and place at which the act took place were
sufficiently particularised), a sexual offence;
"unlawful sexual relationship offence" means an offence against
subsection (1).
(13) For the purposes
of this section, a person is in "a position of authority in relation to a
child if—
(a) the
person is a teacher and the child is a pupil of the teacher or of a school at
which the teacher works; or
(b) the
person is a parent, step-parent, guardian or foster parent of the child or the
de facto partner or domestic partner of a parent, step-parent, guardian or
foster parent of the child; or
(c) the
person provides religious, sporting, musical or other instruction to the
child; or
(d) the
person is a religious official or spiritual leader (however described and
including lay members and whether paid or unpaid) in a religious or spiritual
group attended by the child; or
(e) the
person is a health professional or social worker providing professional
services to the child; or
(f) the
person is responsible for the care of the child and the child has a cognitive
impairment; or
(g) the
person is employed or providing services in a correctional institution (within
the meaning of the Correctional Services Act 1982 ) or a training centre
(within the meaning of the Young Offenders Act 1993 ), or is a person
engaged in the administration of those Acts, acting in the course of the
person's duties in relation to the child; or
(ga) the
person is employed or providing services in a licensed children's residential
facility (within the meaning of the Children and Young People (Safety)
Act 2017 ), or a residential care facility or other facility established
under section 36 of the Family and Community Services Act 1972 , or is a
person engaged in the administration of those Acts, acting in the course of
the person's duties in relation to the child; or
(h) the
person is an employer of the child or other person who has the authority to
determine significant aspects of the child's terms and conditions of
employment or to terminate the child's employment (whether the child is being
paid in respect of that employment or is working in a voluntary capacity).
(14) The heading of
this section—
(a) is
not part of this section (despite section 19 of the
Legislation Interpretation Act 2021 ); and
(b) is
not intended to affect the interpretation or operation of this section.
Note—
Parliament, in amending the heading of this section by the Criminal Law
Consolidation (Child Sexual Abuse) Amendment Act 2023 , did not intend to
change the nature or scope of this offence or the requirements for
establishing an offence against this section.