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

Click here to obtain a Word version of this document for adaptation.

 

When to use this charge

This charge can be used for trials involving offences alleged to have been committed between 17/3/2010 and 30/6/2015 where consent is in issue (because the complainant was aged 12 or over and the accused relies on a circumstance described in s45(4)).

 

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

Note

  • Consent can only be in issue if the complainant was aged 12 or older at the time of the offence. If age is in issue in this respect this charge will need to be modified.
  • This charge addresses consent coupled with a belief on reasonable grounds that the child was aged 16 or older (s45(4)(a)). If the issue is s45(4)(b) (accused not more than 2 years older than the complainant) or s45(4)(c) (accused believed on reasonable grounds that s/he was married to the complainant) the charge will need to be adapted accordingly. See Sexual penetration of a child under 16 (1/1/92 - 30/6/17) for guidance.

    Warning

  • For offences alleged to have been committed on or after 1 November 2014, it is not clear whether Crimes Act 1958 s322T affects the relevance of intoxication to this defence. Judges should seek submissions from the parties on this issue where relevant.

    Belief that complainant was aged 16 or more

Even if you find that the prosecution has proved all three elements of this offence, NOA will not necessarily be guilty of this offence. This is because, in certain circumstances, consent will be a defence.

The law states that consent is available as a defence if the accused believed on reasonable grounds that the complainant was at least 16 years old at the time of the alleged penetration.

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – this belief is a matter which the accused must prove on the balance of probabilities. That is, the accused must prove that it is more likely than not that s/he believed on reasonable grounds that NOC was aged 16 or over for consent to be available as a defence.

So, by contrast to proof of the elements of the offence(s), where the prosecution must satisfy you beyond reasonable doubt of them, for the defence of reasonable belief to be established to your satisfaction, it is for the accused, not the prosecution to prove the existence of a reasonable belief in age.

And the standard to which the defence must do this is a lesser standard than proof beyond reasonable doubt, it is proof on the balance of probabilities. That is, the accused must satisfy you that it is more likely than not that he believed, on reasonable grounds, that the complainant was 16 or over.

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

[If the prosecution has conceded either consent or belief in consent, add the shaded section]

As it is not in issue in this case that the sexual act was consensual, if the accused satisfied you, on the balance of probabilities that s/he believed, on reasonable grounds, that at the time s/he took part in the act of sexual penetration, that the complainant was 16 or over, then your verdict in respect of that charge will be not guilty. If however, the accused does not satisfy you on the balance of probabilities that at the time he believed the complainant was 16 or over, and that his belief was based on reasonable grounds, then despite the fact that the act was consensual, this defence will fail.

[If either consent or belief in consent is in issue, add the shaded section]

Warning: It is an unresolved question whether the prosecution must prove that the accused was aware that the complainant was not consenting or might not be consenting. This Charge Book requires proof of awareness of non-consent as a matter of prudence. See Consent and Awareness of Non-Consent for more information.

If, however, you find that the NOA has proved that s/he believed on reasonable grounds that NOC was at least 16 years old at the time of the alleged penetration, then you will need to determine whether the prosecution have proved two additional elements: first, that NOC did not consent to the alleged act of sexual penetration and second, that NOA was aware that NOC was not or might not be consenting.

Definition of consent

Dealing with the first of these additional elements, consent is a state of mind. The law says that consent means free agreement. So NOC will not have consented to the sexual penetration if s/he did not freely agree to take part in that act.

It is for the prosecution to prove, beyond reasonable doubt, that the complainant did not freely agree to the sexual penetration. So if consent is relevant to your determination, and the prosecution cannot prove beyond reasonable doubt that NOC did not freely agree to the penetration, then you must find NOA not guilty of this offence.

The law identifies a number of circumstances where the complainant is deemed not to freely agree, or consent, to sexual penetration. These circumstances include [insert relevant section(s) from the following and apply to the evidence:

  1. the person submits because of force or the fear of force to that person or someone else;
  2. the person submits because of the fear of harm of any type to that person or someone else;
  3. the person submits because s/he is unlawfully detained;
  4. the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
  5. the person is incapable of understanding the sexual nature of the act;
  6. the person is mistaken about the sexual nature of the act or the identity of the person;
  7. the person mistakenly believes that the act is for medical or hygienic purposes.]

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting. However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proved.

[If there is evidence that the complainant did not say or do anything to indicate agreement, add the following darker shaded section]

The law also says that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.

This means that if you accept that NOC did not say or do anything to indicate free agreement to the sexual penetration at the time of that act, you may find on that basis that s/he did not consent to that act.

[Where evidence is given about the absence of physical resistance, lack of physical injury or past consensual sex, add the following darker shaded section if relevant to the facts in issue.]

The law also says the complainant is not to be regarded as having freely agreed just because:

However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proved beyond reasonable doubt that NOC did not consent.

In determining whether NOC did not freely agree to take part in the act of sexual penetration, you must consider all of the relevant evidence, including what s/he is alleged to have said and done at the time of the alleged penetration, as well as the evidence s/he gave in court about [his/her] state of mind at that time. You can also consider what s/he did not say or do at the time of the alleged penetration.

In this case, the prosecution alleged that NOC did not consent. [Insert relevant evidence and competing arguments].

If the prosecution fails to prove to you beyond reasonable doubt this first additional element that NOC did not consent, then you must find NOA not guilty.

Awareness of Lack of Consent

Turning now to the second additional element, if consent is available as a defence, the prosecution must also prove beyond reasonable doubt that at the time of the alleged sexual penetration the accused was aware either:

If the prosecution fails to prove to you beyond reasonable doubt that NOA had one of these state(s) of mind about the complainant’s consent, then you must find NOA not guilty of this offence.

Belief in consent

[If evidence is led or an assertion is made that the accused believed that the complainant was consenting, add one of the directions in Charge: Belief in consent]

Onus and standard of proof

Remember, you may not need to consider the issue of consent. The process that you must follow is this. First, you must decide if the prosecution has proved the three elements of the offence beyond reasonable doubt. That is, the prosecution must prove that NOA took part in an act of sexual penetration with NOC, that s/he intended to take part in the act of sexual penetration, and that NOC was under the age of 16 at the relevant time. If the prosecution cannot prove all three of these elements, then you must find NOA not guilty of this offence.

Next, if you find that the prosecution has proved each of these elements beyond reasonable doubt, and the accused has raised the issue as to belief in age, you must then decide if NOA has proved, on the balance of probabilities, that s/he believed that NOC was at least 16 years old, and that that belief was based on reasonable grounds. If the accused cannot prove both of these matters, then NOA will be guilty of this offence, as long as the prosecution have proved each of the first three elements of the offence beyond reasonable doubt.

If, however, you find that the accused has proved these matters as to belief in age on the balance of probabilities, you must then decide whether the prosecution has proved, beyond reasonable doubt, the two additional elements that NOC did not consent, and that NOA was aware that s/he was not or might not be consenting. If the prosecution cannot prove both of these things, then you must find NOA not guilty of this offence. It is only if you are satisfied that they have been proved beyond reasonable doubt, together with each of the first three elements of the offence, that you can convict NOA of sexual penetration of a child under 16.

 

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 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 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 prosecution evidence]. The defence responded [insert relevant evidence and/or 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 you decide that each of these elements have been proved beyond reasonable doubt, you must decide if the accused has proved, on the balance of probabilities:

If the accused has not proved both of these matters on the balance of probabilities, and you find that all of the elements have been proved by the prosecution beyond reasonable doubt, then NOA will be guilty of the offence. However, if you find that both of these matters have been proved by the accused on the balance of probabilities, you must then decide if the prosecution has proved, beyond reasonable doubt, that NOC did not consent to the act of sexual penetration and that NOA was aware that NOC was not or might not be consenting.

[If the prosecution conceded either consent or belief in consent, add the shaded section]

Since the prosecution does not dispute the accused’s claim that [insert basis of concession about consent, e.g. "NOC was consenting" or "s/he believed that NOC was consenting"], you must, if you reach this point, find NOA not guilty of this offence.

[If either consent or belief in consent is in issue, add the shaded section]

If the prosecution cannot prove these matters, 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. My associate will ask you "Do you find that [describe relevant aggravating circumstances]?", to which you, [Madam/Mr] foreman will answer "yes" or "no", 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: 30 November 2017

See Also

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

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

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

7.3.12.7 - 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