Presidential Powers (Temporary Measures) (Criminal Laws (Protection of Children and Young Persons)) Regulations, 2024

Using the Presidential Powers (Temporary Measures) Act, the President has rewritten the child protection provisions of the Criminal Law (Codification and Reform) Act and the Criminal Procedure and Evidence Act. This is the emergency decree that implemented the Constitutional Court judgment in Kawenda v Minister of Justice, which struck down the old definition that protected only children under 16.

The central change is the definition. A "young person" is now a boy or girl under the age of eighteen. The definition of "extra-marital sexual intercourse" is also tightened to apply between spouses "both of whom are of or over the age of eighteen years", closing the route by which a purported child marriage could legitimise sex with a child.

The replacement section 70 makes it a crime to have extra-marital sexual intercourse with a young person, to commit an indecent act involving physical contact on one, or to solicit or entice one — carrying a fine up to level 12, up to ten years' imprisonment, or both. Consent is no defence. It is a defence that the accused had reasonable cause to believe the young person was 18 or older, but apparent physical maturity alone cannot be that reasonable cause.

There is a close-in-age safeguard. Where the parties are young persons within three years of each other in age, or a young person and an adult not more than three years older, neither may be charged unless the Prosecutor-General authorises the charge after considering a probation officer's report. The regulations also spell out that where the complainant is under twelve, or where an older child did not consent, the competent charge is rape, aggravated indecent assault or indecent assault rather than the section 70 offence.

Three other criminal law changes matter. Section 78 is amended so that "sexually-transmitted disease" expressly includes HIV, restoring criminal liability for deliberate HIV infection after section 79 was repealed in 2022. Procuring under section 83 now carries a fine up to level 14 with up to ten years' imprisonment where the person procured is a young person, or two years otherwise. And an owner who knowingly allows a young person into a place for unlawful sexual conduct faces up to ten years where the child is under twelve, or seven years where the child is over twelve. Section 76 is replaced so that an owner or occupier who knowingly permits a sexual crime on their premises, or who detains someone for that purpose, may be charged as an accomplice or accessory, or with kidnapping or unlawful detention, or both.

On court procedure, Part XIVA of the Criminal Procedure and Evidence Act is widened from "vulnerable" to "vulnerable or incapacitated" witnesses. A court may now let a witness who cannot give evidence orally testify by writing, signs or other augmentative and alternative communication, done in open court, and may appoint an intermediary or a support person. An intermediary who is not a State-employed interpreter must take the interpreter's oath first.

Regulations made under the Presidential Powers (Temporary Measures) Act are temporary. These were later confirmed by Parliament as the Criminal Laws Amendment (Protection of Children and Young Persons) Act, Act 1 of 2024. No commencement date is stated in the text; the Gazette Extraordinary is dated 12 January 2024.