(1)Subject to subsections (2) and (3) and notwithstanding anything in section 79, a reasonable mistake as to the age of a person shall not be a defence to any charge of an offence under section 376A(2), 376B or 376C.
Section history
Section 377D — Mistake as to age in sexual offences
As in force on 1 January 2020.
(2)In the case of a person who at the time of the alleged offence was under 21 years of age, the presence of a reasonable mistaken belief that the minor, who is of the opposite sex, was of or above —
(a)the age of 16 years, shall be a valid defence to a charge of an offence under section 376A(2); or
(b)the age of 18 years, shall be a valid defence to a charge of an offence under section 376B or 376C.
(3)For the purposes of subsection (2), the defence under that subsection shall no longer be available if at the time of the offence, the person charged with that offence has previously been charged in court for an offence under section 376A, 376B, 376C or 376E, or section 7 of the Children and Young Persons Act (Cap. 38) or section 140(1)(i) of the Women’s Charter (Cap. 353).
[WC 1997 Ed., s. 140(4) and (5)]
(1)Subject to subsections (2) and (3) and despite section 79, a reasonable mistake as to the age of a person cannot be a defence to any charge for a sexual offence.
(2)The presence of a reasonable mistaken belief that a minor was of or above 18 years of age is a valid defence to a charge for a sexual offence where the fact that a minor is of or above the age of 16 years but below 18 years is a physical element of the offence.
(3)For the purposes of subsection (2), the defence under that subsection is no longer available if at the time of the offence, the person charged with that offence —
(a)has previously been charged in court for an offence under section 375(1)(b), 375(1A)(b), 376(1) (if the victim B is below 14 years of age), 376(2) (if the victim B is below 14 years of age), 376A, 376AA, 376B, 376C, 376E, 376EA, 376EB, 376EC, 376ED, 376EE, 377BG, 377BH, 377BI, 377BJ, 377BK or 377BL or section 7 of the Children and Young Persons Act or section 140(1)(i) or 145(1) of the Women’s Charter; or
(b)failed to take all reasonable steps to verify that the minor was of or above 18 years of age.
Explanation.—The fact that the minor was observed to be participating in activities which are restricted to persons of or above 18 years of age, such as smoking a cigarette or admission to premises with access restricted to persons of or above 18 years of age (such as a nightclub) is neither sufficient to constitute a reasonable basis for the mistaken belief nor reasonable steps to verify that minor’s age.
(4)In this section, “sexual offence” has the meaning given by section 377CB.