(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
Consolidated view is experimental and may be broken for certain provisions.
Amendments
Section 377D — 1 February 2008 to 1 January 2020superseded
(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).
Section 377D — From 1 January 2020 (current)rewritten by Criminal Law Reform Act 2019
(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 the2021162021 age2021years2021 of 16 years2021age2021 but below 18 years of age2021 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) as in force before its deletion by section 23(a) of the Criminal Law (Miscellaneous Amendments) Act 2021 2022(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 7202182021 of the Children and Young Persons Act 19932021 or section 140(1)(i) or 145(1) of the Women’s Charter;2021Charter 1961;2021 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.