Using the internet to procure children
As a society our use of the internet has grown rapidly in a relatively short period of time. For the vast majority of us, it would be a miracle to go through one day without using the internet, whether that be for work, social media or a raft of other reasons.
The increase in use of the internet has required that the law keep up with ways in which it may be used for a criminal purpose. This article provides a broad overview of the offence “using the internet to procure children under 16”. Here we will consider the elements of the offence, defences that may be available and potential penalties if convicted.
What needs to be proven?
In order for a person to be convicted of using the internet to procure a child under 16, the prosecution must prove the following:-
- That the accused was an adult at the time of the offence;
- The accused used electronic communication;
- In doing so, the accused had the intent to procure a person to engage in a sexual act, either in Queensland or elsewhere;
- The person was aged under 16 years (or 12 years), or the accused then believed that the person was aged under 16 years (or 12 years).
What is electronic communication?
The term ‘electronic communication’ has a broad meaning in these matters and includes email, internet chat rooms, SMS messages, real time audio/video or other similar communication. This includes communication over social media applications such as Facebook, Instagram, Tiktok and Snapchat.
In using that electronic communication, the accused person must have had the intent to procure a person to engage in a sexual act.
What does it mean to “procure”?
This simply means knowingly to entice or persuade a person to engage in a sexual act.
What is considered a “sexual act”?
The prosecution does not have to prove that the sexual act intended to be procured was sexual intercourse, or acts involving physical contact, or any particular sexual act, just rather that it was an act that has a sexual connotation. It is not necessary to prove the person intended to procure the person to engage in any particular sexual act.
It may mean the person allows a sexual act to be done to the person’s body, or that person does a sexual act to the person’s own body, or the body of another person, or engages in an act of an “indecent nature”, in other words, an act considered to be indecent compared to the currently accepted standards of decency held by society. This will be considered in the light of time, place and circumstance. As an example, an invitation to engage in a sensual massage may be considered to be a sexual act.
What if the person thought it was impossible for the procured sexual act to be executed?
This does not matter. So long as the person formulated the requisite intent for the sexual act to be procured, the offence can be made out.
Does it matter if the “child” was a fictitious person or in fact a police officer?
No. If the prosecution can prove that the accused believed the person being communicated with was a child under 16 years of age that is sufficient for prosecution.
Is there a defence to the charge?
It is a defence to the charge that the accused believed on reasonable grounds that the person was at least 16 years of age. This defence however, has no application where the basis of the charge is that the accused was under the age of 16 of 12, rather than the true age of the person.
What is important to bear in mind however, evidence that the “child” was represented to the accused person as being underage is proof that the accused believed the person was under that age, unless contrary evidence can be provided.
Contrary evidence could be that the accused did not believe a representation that the person was under 16. This could include evidence such as, that despite the representation, the accused had no belief either way whether the person was under or over 16. It would then for a jury to assess the credibility of any explanation raised by the accused as to their lack of belief as to the representation and for the jury to decide whether the prosecution has disproved that explanation beyond reasonable doubt.
Where the “child” is a fictitious person, or a real person over 16, evidence to the contrary includes evidence that the accused did not believe the representation that the person was under 16. This could again include evidence such as, that despite the representation, the accused had no belief either way whether the person was under or over 16, leaving it to the jury to assess the credibility of the explanation.
No offence is committed unless the accused is proved to have intended to procure a person the accused believed to be under 16 (or 12, as the case may be) to engage in a sexual act.
What is the penalty if convicted?
The maximum penalty for this offence is 10 years imprisonment without any circumstance of aggravation. However, this increases to 14 years imprisonment if:-
- the person is:
- A person under 12 years; or
- A person the adult believes is under 12 years; or
- The offence involves the adult;
- Intentionally meeting the person; or
- Going to a place with the intention of meeting the person.
The courts have found that sentences involving actual imprisonment are well within range for this offence.
Further, following conviction, the offence is considered to be a “prescribed offence” under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, thereby subjecting a person to the Queensland child sex offenders register.