7.3.12.1 - Charge: Sexual Penetration of a Child Under 16 (From 17/3/10) - Consent Not in Issue

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When to use this charge

This charge can be used for trials involving offences alleged to have been committed on or after 17/3/2010 where neither consent nor any precondition for relying on consent as a defence is in issue.

Alternative charges

For other cases see the charges:

 

I must now direct you about the crime of sexual penetration of a child under the age of 16. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused took part in an act of sexual penetration with the complainant.

Two - the accused did this intentionally.

Three - the complainant was under the age of 16 at the time that the act of sexual penetration took place.

I will now explain each of these elements in more detail.[1]

Taking part in an act of sexual penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused took part in an act of sexual penetration with the complainant. [If the conscious, voluntary or deliberate nature of the act is in issue,[2] add: The prosecution must also prove that the relevant acts of the accused were performed consciously, voluntarily and deliberately.]

The law defines sexual penetration as the introduction of a person’s penis, body part or object into another person’s vagina or anus. It also includes putting a penis into someone’s mouth.

For this first element to be satisfied, the prosecution must prove that NOA took part in one of these acts. The law says that both the person who sexually penetrates and the person who is penetrated are regarded as “taking part” in sexual penetration. [If relevant add: This means that if you find that NOA was sexually penetrated by NOC, you will be satisfied that the accused “took part” in that act of sexual penetration.]

In this case the prosecution seeks to prove that NOA took part in an act of sexual penetration with NOC [describe relevant form of penetration, e.g. “by putting his finger into NOC’s anus”/ “when he took NOC’s penis in his mouth”].

[If relevant add:

 

[If the evidence or arguments have placed the conscious, voluntary or deliberate nature of the acts in issue, add the following shaded section]

For this element to be met, the act of [describe relevant act of participation, e.g. “introducing his finger into NOC’s anus”/ “receiving NOC’s penis into his mouth”] must have been done consciously, voluntarily and deliberately.

This means that you must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves voluntariness in the circumstance of the case, e.g. “NOA introduced his finger into NOC’s vagina deliberately, and not accidentally” or “NOA was conscious and not asleep and dreaming at the time of the penetration”].

[In vaginal penetration cases, add the following shaded section]

The law says that the vagina includes the external genitalia – that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that [NOA / NOC] introduced [identify body part or object] to any extent between the outer lips of [NOA/NOC’s] vagina.

[In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section]

However, according to the law, the introduction of an object or body part other than the penis into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done in good faith for medical or hygienic purposes. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the insertion of [name of object] by NOA into NOC’s [anus/vagina], was not done in good faith for [medical/hygienic] purposes.

In this case [insert evidence and arguments relevant to proof of this element].

Intention

The second element that the prosecution must prove beyond reasonable doubt is that the accused intended to take part in the act of sexual penetration with the complainant.[3]

[If intention is not in issue, add the shaded section]

This element is not in issue here. [If appropriate, explain further, e.g. If you are satisfied that the accused [consciously, voluntarily and deliberately] sexually penetrated the complainant, you should have no trouble finding that s/he did so intentionally.]

Child under the age of 16

The third element relates to the complainant. The prosecution must prove that s/he was under the age of 16 when the alleged act of sexual penetration took place.

In this case, there is no dispute that NOC was under 16 at that time. The main issue in this case is [insert relevant issue].[4]

Statutory defences and exclusions

Accused married to the complainant

[For offences allegedly committed before 22 October 2014, if the accused alleged that s/he was married to the complainant, who was aged between 12 and 16 at the time of the alleged penetration, add the following shaded section]

Even if these three elements are met, the law states that a person is not guilty of this offence if the accused and the complainant were married to each other at the time of the alleged penetration, and the complainant was at least 12 years’ old at that time.

In this case [insert relevant evidence and competing arguments].

It is for the prosecution to prove, beyond reasonable doubt, that NOA was not married to NOC at the time of the alleged act of sexual penetration, or that NOC was aged under 12 at the relevant time. If the prosecution cannot prove at least one of these matters, then you must find NOA not guilty of this offence.

Consent is not a defence

[This charge is designed for use in cases where consent is not in issue. Use one of the charges listed at the beginning of this document if consent or a precondition for consideration of consent (belief in age, age gap of less than 2 years, or marriage to complainant) is contested.]

To protect children under the age of 16, Parliament has created a number of offences where consent is not relevant. This is one of those offences, so you do not need to consider the issue of whether or not NOC agreed to take part in the alleged act of sexual penetration.

Circumstances of Aggravation

[If any circumstances of aggravation have been alleged in the indictment, add the following shaded section]

The law has specified certain “circumstances of aggravation” which you must consider if you find that each of the elements of this offence has been proved. These are not elements of the offence, but circumstances which make the crime more serious. Like the elements of the offence, these are matters which the prosecution must prove beyond reasonable doubt and you can only find a circumstance of aggravation if you all agree that circumstance exists. [5]

[Where it is alleged that the complainant was under the age of 12, add the following shaded section]

One of the “circumstances of aggravation” specified by the law is that the complainant was under the age of 12 at the time that the alleged act of sexual penetration took place.

In this case [insert relevant evidence and competing arguments about the complainant’s age].

It is for you to determine, on the basis of all the evidence, whether the prosecution has proven this circumstance of aggravation beyond reasonable doubt. I want to remind you, however, that you must first determine whether the elements of the offence have been proved beyond reasonable doubt. When your verdict is taken, you will only be asked about this circumstance if you have found the accused guilty of the offence. I will tell you later how your verdicts are to be taken by my associate.

[Where it is alleged that the complainant was between 12 and 16 and under the care, supervision or authority of the accused, add the following shaded section]

One of the “circumstances of aggravation” specified by the law is that the complainant was aged between 12 and 16 at the time that the alleged act of sexual penetration took place, and was under the care, supervision or authority of the accused.

This is a two-part test. You must first be satisfied that NOC was aged between 12 and 16. You must also be satisfied that NOC was under NOA’s care, supervision or authority at the time the alleged act of sexual penetration took place. These are ordinary everyday English words.

The relationship of care, supervision or authority does not have to be a formal one. There does not, for example, have to have been a formal agreement that the accused would take care of the complainant. An informal relationship of care, support or authority is sufficient.

[If relevant, add: You do not need to find that the occasion on which the alleged act of penetration took place was connected with, or arose out of, the relationship of care, supervision or authority. It is sufficient if you are satisfied that there was an ongoing relationship of care, supervision or authority between NOA and NOC, and that that relationship existed on the day on which the penetration took place.]

In this case the prosecution alleged that NOC was [insert age] at the relevant time, and was under NOA’s [care/supervision/authority]. [Insert relevant evidence and competing arguments].

It is for you to determine, on the basis of all the evidence, whether the prosecution has proved this circumstance of aggravation beyond reasonable doubt. I want to remind you, however, that you must first determine whether the elements of the offence have been proved beyond reasonable doubt. When your verdict is taken, you will only be asked about this circumstance if you have found the accused guilty of the crime. I will tell you later how your verdicts are to be taken by my associate.

Summary

To summarise, before you can find NOA guilty of sexual penetration of a child under the age of 16, the prosecution must prove to you beyond reasonable doubt: ·

One - that NOA took part in an act of sexual penetration with NOC; and

Two - that NOA intended to take part in that act of sexual penetration; and

Three - that NOC was under the age of 16 at the time that the act of sexual penetration took place.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of sexual penetration of a child under the age of 16.

[If any circumstances of aggravation are in issue, add the following shaded section]

If you find that all of these elements have been proved, you must then consider whether circumstances of aggravation have been established.

[Where it is alleged that the complainant was under the age of 12, add: You must decide if the prosecution has proved, beyond reasonable doubt, that NOC was under 12 at the time of the alleged penetration.]

[Where it is alleged that the complainant was between 12 and 16 and under the care, supervision or authority of the accused, add: You must decide if the prosecution has proved, beyond reasonable doubt, that NOC was aged between 12 and 16 at the time of the alleged penetration, and was under the care, supervision or authority of the accused.]

Taking the verdict

When you have reached your verdict and returned to this court room, my associate will ask you whether you have agreed on a verdict, and what your verdict is. You, [Mr/Madam] foreman, will answer “guilty” or “not guilty”, according to the decision the jury has reached.

If you answer guilty, you will then be asked whether you have reached agreement about the circumstances of aggravation, to which you, [Madam/Mr] foreman will answer according to what the jury have decided.

Notes

[1] - If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: “It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven.”

[2] - Described hereafter as the “voluntariness” requirement.

[3] - Because sexual penetration of a child under 16 is an offence of basic intent (the intent to take part in the act of penetration), the issue of intention is only likely to arise in cases involving penetration of the accused by the complainant. In cases where the accused is alleged to have penetrated the complainant, proof of intent will rarely be separated from proof of the act, and “intention” will rarely be an independent issue. Mental state issues related to the intention to penetrate (e.g. the negation of intent by involuntariness, unconsciousness or accident) should generally be addressed by voluntariness directions.

[4] - If the complainant’s age is disputed, this section of the charge will need to be modified accordingly.

[5] - If more than one circumstance of aggravation is in issue, the judge should consider spelling out that the jury must agree on a particular circumstance of aggravation.

Last updated: 22 January 2016

See Also

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.12.2 - Checklist: Sexual penetration of a child under the age of 16 - Consent not in issue (From 17/3/10)

7.3.12.3 - Charge: Sexual Penetration of a Child Under 16 (Pre-17/3/10) - Consent Not in issue

7.3.12.4 - Checklist: Sexual penetration of a child under the age of 16 - Consent not in issue (Pre-17/3/10)

7.3.12.5 – Charge: Sexual Penetration of a Child Under 16 (From 1/7/15) - Consent in issue

7.3.12.6 - Charge: Sexual Penetration of a Child under 16 (17/3/10 – 30/6/15) - Consent in issue

7.3.12.7 - Checklist: Sexual penetration of a child under 16 (From 17/3/10) - Consent in issue

7.3.12.8 - Charge: Sexual Penetration of a Child Under 16 (1/12/06 – 16/3/10) - Consent in issue

7.3.12.9 - Charge: Sexual penetration of a Child Under 16 (Pre-1/12/06) - Consent in Issue

7.3.12.10 - Checklist: Sexual penetration of a child under the age of 16 (Pre-17/3/10) - Consent in issue