s. 45 (3) Subsection (1) does not apply to an act of sexual penetration if— S. 45(3)(a) (a) the child is aged between 12 and 16; and amended by No. 7/2010 s. 3(4). (b) the persons taking part in the act are married to each other. S. 45(4) (4) Consent is not a defence to a charge under amended by subsection (1) unless at the time of the alleged No. 7/2010 s. 3(5). offence the child was aged 12 or older and— (a) the accused satisfies the court on the balance S. 45(4)(a) amended by of probabilities that he or she believed on No. 2/2006 reasonable grounds that the child was aged s. 9(1). 16 or older; or (b) the accused was not more than 2 years older than the child; or S. 45(4)(c) (c) the accused satisfies the court on the balance amended by of probabilities that he or she believed on No. 2/2006 s. 9(1). reasonable grounds that he or she was married to the child. (4A) If consent is relevant to a charge under subsection S. 45(4A) inserted by (1), the prosecution bears the burden of proving No. 2/2006 lack of consent. s. 9(2). S. 45(5) (5) A circumstance of aggravation described in amended by subsection (2) is not an element of an offence No. 68/2009 s. 97(Sch. against subsection (1) but must be stated in the item 40.3). indictment. (6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.
(3) Subsection (1) does not apply to an act of sexual penetration if— S. 45(3)(a) amended by No. 7/2010 s. 3(4). (a) the child is aged between 12 and 16; and (b) the persons taking part in the act are married to each other. S. 45(4) amended by No. 7/2010 s. 3(5). (4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 12 or older and— S. 45(4)(a) amended by No. 2/2006 s. 9(1). (a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or s. 45 (b) the accused was not more than 2 years older than the child; or S. 45(4)(c) amended by No. 2/2006 s. 9(1). (c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child. S. 45(4A) inserted by No. 2/2006 s. 9(2). (4A) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. S. 45(5) amended by No. 68/2009 s. 97(Sch. item 40.3). (5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the indictment. (6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.
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