Section 19 of the Cybercrime Code Act 2016 is the Act’s response to online predation.
Section 19(1) — the offence
A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to befriend, invite, induce, persuade, or in any way procure, or offer to engage a child in —
(a) sexual intercourse or sexual contact; or
(b) a sexual or obscene performance; or
(c) any other sexual conduct,
is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K100,000 or imprisonment not exceeding 25 years, or both; and (b) for a body corporate, a fine not exceeding K500,000.
The six ways of committing it
| Verb | What it captures |
|---|---|
| Befriend | Building a relationship with the child — the first and often longest stage of grooming |
| Invite | Asking the child to take part |
| Induce | Bringing about willingness — by gifts, attention, promises or pressure |
| Persuade | Convincing the child |
| In any way procure | The residual limb — any means of obtaining the child’s participation |
| Offer to engage | Making the proposal, whether or not it is taken up |
Grooming works by degrees. The offender builds trust over weeks or months before anything sexual is proposed. An offence framed around propositioning would catch only the last step.
By including befriend, section 19(1) reaches the whole process — provided the befriending is done to engage the child in one of the three kinds of conduct in paragraphs (a) to (c). The purpose is what makes friendly contact criminal.
That also means the offence is complete before any sexual conduct occurs, and whether or not it ever occurs. The same is true of offer to engage: the offer is the offence.
The three kinds of conduct
(a) Sexual intercourse or sexual contact — physical conduct with the child.
(b) A sexual or obscene performance — conduct performed by the child, which in an online context includes live streaming, video calls and recorded material. No physical meeting is required.
(c) Any other sexual conduct — a residual category covering anything not within (a) or (b), including sending sexual images or engaging in sexual conversation.
Paragraph (b) is important in practice. A great deal of online offending never involves a meeting: the offender procures the child to perform on camera. That is squarely within section 19(1).
Who is a child
“Child” means, for the purposes of this Act, a person under the age of 18 years.
Where the child is under 16, the aggravated offence in section 19(2) applies, and the penalty for a natural person becomes imprisonment for life, subject to section 19 of the Criminal Code Act (Chapter 262).
The corporate penalty
Section 19(1) states a penalty for a body corporate of K500,000, rising to K1,000,000 under section 19(2) where the child is under 16.
Recall that section 2 defines “body corporate” as a company whether incorporated or unincorporated, and includes government or public bodies, as well as terrorist groups or organisations.
For platforms and ICT service providers, the related exposure is section 44 — which makes it a crime to initiate or aid in facilitating an action resulting in an offence under this Act, to conceal, prevent or frustrate an investigation, to fail to comply with a court order to terminate or prevent a continuing offence, or to negligently allow an employee to do any of those things.
The rest of section 19, and related offences
- Section 19(2) — where the child is under 16: life imprisonment for a natural person, and K1,000,000 for a body corporate.
- Section 19(3) — knowingly receiving any financial or other reward, favour, benefit, compensation, or any other gain from the commission of a section 19 offence: 25 years or K100,000, and K1,000,000 for a company.
- Section 18 — where images or recordings are produced, transmitted or accessed, the child pornography offences apply as well.
- Section 24 — where material obtained from the child is used to demand more, the cyber extortion offences apply.
- Section 22 — communications with or regarding a child for the purpose of bullying, intimidating, threatening, demeaning, ridiculing or stalking, or causing emotional distress.
Unlike section 17 and section 18, section 19 contains no defence of law enforcement purpose or public benefit.
The elements are what limit it: the conduct must be intentional, there is no recklessness limb, and the befriending or other conduct must be directed at engaging the child in the conduct described in paragraphs (a) to (c).
Section 19 is not in Schedule 2 and cannot be dealt with summarily. And where the offender is a child between 10 and 18, section 5(3) applies the Juvenile Justice Act 2014.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 17–19, 22, 24, 44, 48; Schedule 2
- Criminal Code Act (Chapter 262) — s 19; Juvenile Justice Act 2014
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.