Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
56 Maintaining sexual relationship with young person or person under special care
(1) A person who is an adult and who maintains a sexual relationship with a young person or a person under the special care of the adult is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2) For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person.
(3) For subsection (2)—
(a) the period, or any part of the period, may be before the amendment day; and
(b) 1 or more of the sexual acts may have occurred before the amendment day.
(4) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that a sexual relationship existed.
(5) However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence if the trier of fact is satisfied the nature and character of a person's conduct was consistent with a sexual act; or
(c) if the trier of fact is a jury—members of the jury to agree on which sexual acts constitute the sexual relationship.
(6) In a proceeding for an offence against subsection (1), the prosecution is required to allege the particulars of the period of the sexual relationship.
(7) For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the amendment day for—
(a) an offence against this section; and
(b) an offence constituted by a sexual act alleged to constitute the sexual relationship.
(8) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence against subsection (1); and
(b) 1 or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
(9) Except as provided by subsection (8), a person cannot be convicted of an offence—
(a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or
(b) constituted by a sexual act in relation to a young person or person under the special care of the person if the sexual act is alleged to have occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the young person or person under their special care.
(10) For subsection (9), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside.
(11) The Criminal Code
, chapter 2 (other than the immediately applied provisions) does not apply to an offence against this section.
(12) For this section and to remove any doubt, any sexual act alleged to constitute a sexual relationship must constitute, or have constituted (if particulars of the time and place at which the act took place were sufficiently particularised), an offence at the time the act occurred.
(13) In this section:
"amendment day" means the day the Crimes Legislation Amendment Act 2018 , section 4 commenced.
"employer", of a person, includes someone authorised to—
(a) decide or vary the terms of the person's employment; or
(b) end the person's employment.
"foster carer"—see the Children and Young People Act 2008
, section 518 (2).
"health service"—see the Human Rights Commission Act 2005
"health service provider"—see section 55A (5).
"sexual act"—
(a) means—
(i) an act that constitutes an offence against this part; or
(ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence ); or
(iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence; but
(b) does not include an act referred to in—
(i) section 55 (2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (3) that would be a defence if the person had been charged with an offence against section 55 (2); or
(ii) section 61 (2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (3) that would be a defence if the person had been charged with an offence against section 61 (2).
"special care"—a person is under the special care of an adult if—
(a) the person is not yet an adult; and
(b) the adult—
(i) is a parent, grandparent, step-parent, foster carer or legal guardian of the person; or
(ii) is the domestic partner of a parent, grandparent, step-parent, guardian or foster carer of the person; or
(iii) is a teacher at a school, or an adult with responsibility for students at a school, and the person is a student at the school; or
(iv) has an established personal relationship with the person in relation to the provision of religious, sporting, musical or other instruction to the person; or
(v) is the person's employer; or
(vi) provides professional counselling to the person; or
(vii) is a health service provider and the person is the adult's patient; or
(viii) is a custodial officer and the person is a young detainee in the officer's care, custody or control; or
(ix) if the person has impaired decision-making ability—is a carer for the younger person.
"young detainee"—see the Children and Young People Act 2008
, section 95.
"young person" means a person who is under the age of 16 years.