Australia: The offences of child grooming and child procuring in New South Wales

Former New York socialite, Ghislaine Maxwell, who is the daughter of publishing tycoon Robert Maxwell, and once the partner of convicted sex offender Jeffrey Epstein, is due to face court in the United States this week.

Ms Maxwell is charged with recruiting and grooming a steady stream of girls as young as 14 years old to be sexually assaulted by Jeffrey Epstein between 1994 and 2004.

It's a trial that has attract worldwide attention, and many hope it will be one that brings finality and certainty to complainants and their families.

Many of the alleged victims are keen to see the evidence presented in court, given that alleged principal offender, Jeffrey Epstein, died in prison in 2019 before he could be tried for his alleged sexual offences.

In 2008, Mr Epstein was convicted of procuring a child for prostitution as well as soliciting a prostitute, and spent a relatively short stint behind bars.

Mr Epstein was a financier who had links to some of the world's most famous and powerful people, including former US Presidents Donald Trump and Bill Clinton, as well as Bill Gates and Prince Andrew, Duke of New York.

Prince Andrew is currently facing a civil lawsuit, which was filed in Manhattan Federal Court on behalf of Virginia Giuffre, who has been one of the most outspoken complainants against Mr Epstein's.

Her claim alleges that she was coerced into Epstein's sex trafficking operation, as well as that she forced her to have sex with Prince Andrew on several occasions when she was just 17 years old.

Ghislaine Maxwell has been in prison since her arrest in mid-2020.

She has been charged with crimes including enticing a minor to travel to engage in illegal sex acts and transporting a minor with the intent to engage in criminal sexual activity.

Prosecutors allege that four anonymous women were groomed as teenagers by Maxwell for Epstein between 1994 and 2004, and that Maxwell enticed the girls and young women, garnered their trust through friendship.

It is also alleged Maxwell ‘normalised' sexual abuse by getting undressed in front of the teens, giving them her lingerie, providing them with money to procure other girls and encouraging them to give sexualised massages to Mr Epstein.

Ms Maxwell has vehemently denied any wrongdoing and has pleaded not guilty to all charges, and it is important to bear in mind at all times that she – like anyone else – is presumed to be innocent until and unless she is found guilty in a court of law.

If found guilty, she faces up to 35 years in prison.

After his death, Jeffrey Epstein's assets were sold and the proceeds were put into a victims' compensation fund.

It's reported that the hundreds of millions of dollars have been virtually depleted, after its adminitrators received more than double the claims they originally expected.

Grooming a Child for Unlawful Sexual Activity is an offence under Section 66EB(3) of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison or 12 years if the child was under 14 years of age.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were at least 18 years of age,
2. You groomed a child for unlawful sexual activity, and
3. You did so intentionally.

‘Groomed' means to expose a child to indecent material, or provide a child with an intoxicating substance, or with any financial or material benefit intending to make it easier to procure the child for unlawful sexual activity.

‘Procure' means to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

A ‘child' is a person under the age of 16 years.

‘Unlawful sexual activity' covers a broad range of conduct, including:

1. Sexual act,
2. Sexual touching,
3. Sexual intercourse,
4. Producing child abuse material,
5. Forced self-manipulation, and
6. Child prostitution.

The prosecution does not need to specify the type of activity you groomed the child for the offence extends to procuring adults who pretend to be children, provided the prosecution proves you believed the adult was a child.

A defence to the charge is that you reasonably believed the other person was not a child.

Procuring a child for unlawful sexual activity is an offence under section 66EB(2) of the Crimes Act 1900 which carries a maximum penalty of 12 years in prison or 15 years if the child was under the age of 14 years.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were at least 18 years of age,
2. You procured a child for unlawful sexual activity, and
3. You did so intentionally.

‘Procure' means to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

Again, a ‘child' is a person under the age of 16 years and the prosecution does not need to specify the type of procured activity.

The charge extends to procuring adults who pretend to be children, provided the prosecution proves you believed the adult was a child.

And once again, a defence to the charge is that you reasonably believed the other person was not a child.

After the Royal Commission into Institutional Responses to Child Sexual Abuse, the NSW Government amended laws in 2018 to include greater protections for children.

It added section 66EC into the Crimes Act, which makes it an offence for an adult person to provide another person (other than a child) with any financial or material benefit.

Grooming an adult for unlawful sexual activity with a child is now an offence under section 66EC of the Crimes Act 1900, which carries a maximum penalty of 5 years in prison or 6 years if the child was under 14 years of age.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were an adult,
2. You provided another adult with a financial or material benefit, and
3. You did so intending to make it easier to procure a child under that adult's authority for unlawful sexual activity.

Those with authority over a child include:

1. The child's parents or guardians, and
2. Any other adult/s with responsibility over the child at the relevant time

Proceedings for the offence can only be commenced by, or with the approval of, the Director of Public Prosecutions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.