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

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

This checklist is designed for offences committed before 17 March 2010

The Elements

Three elements the prosecution must prove beyond reasonable doubt:

  1. The accused took part in an act of sexual penetration with the complainant; and
  2. The accused intended to take part in that act of sexual penetration; and
  3. The complainant was under the age of 16 at the time that the act of sexual penetration took place.

 

Accused’s Acts

1. Did the accused take part in an act of sexual penetration with the complainant?

If Yes, then go to 2

If No, then the accused is not guilty of
sexual penetration of a child under 16

Accused’s Intention

2. Did the accused intend to take part in that act of sexual penetration with the complainant?

If Yes, then go to 3

If No, then the accused is not guilty of
sexual penetration of a child under 16

The Complainant’s Age

3. Was the complainant under the age of 16 at the time that the act of sexual penetration took place?

If Yes, then go to 4

If No, then the accused is not guilty of
sexual penetration of a child under 16

 

Relevance of Consent

[Consent can only be relevant where the complainant was aged 10 or over at the time of the offence. If the complainant’s age is in issue in this respect this checklist will need to be modified. This section of the checklist can be used if the accused alleged that s/he believed on reasonable grounds that the complainant was 16 or older and consented to the act of sexual penetration. If consent is in issue because the accused alleged that s/he is not more than 2 years older than the complainant, or that s/he believed on reasonable grounds that s/he was married to the complainant, it will need to be modified as necessary.]

[Use this section if the offence was allegedly committed on or after 1 December 2006.]

Consent is only relevant if you are satisfied the defence has proven, on the balance of probabilities, both that:

4. The accused believed that the complainant was aged 16 or older at the time the act of sexual penetration took place; and

5. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.

 

[Use this section if the offence was allegedly committed before 1 December 2006]

Consent is relevant unless you are satisfied the prosecution has proven beyond reasonable doubt that either:

4. The accused did not believe that the complainant was aged 16 or older at the time the act of sexual penetration took place; or

5. The accused did not have reasonable grounds to believe that the complainant was aged 16 or older.

 

Lack of Consent

If consent is relevant, the prosecution must prove, beyond reasonable doubt, that:

6. The complainant did not consent to taking part in the act of sexual penetration; and

7. The accused was aware that the complainant was not or might not be consenting.

Consent

6. Did the sexual penetration occur without the complainant’s consent?

If Yes, then go to 7

If No, then the accused is not guilty of
sexual penetration of a child under 16
(as long as you answered yes to questions 4 and 5)

Awareness of Lack of Consent

7. At the time of sexual penetration, was the accused aware that the complainant was not consenting or that s/he might not be consenting?

If Yes, then the accused is guilty of sexual penetration of a child

under 16

(as long as you also answered yes to questions 1, 2, 3 and 6)

If No, then the accused is not guilty of
sexual penetration of a child under 16
(as long as you answered yes to questions 4 and 5)

 

Aggravating Circumstances

[If it is alleged in the presentment that the complainant was under the age of 10 at the time of the offence, add the following section.]

If you find that the accused is guilty of sexual penetration of a child under 16, you must then decide whether the prosecution has also proven beyond reasonable doubt that the complainant was under the age of 10 at the time the act of sexual penetration took place.

 

[If it is alleged in the presentment that the complainant was between the ages of 10 and 16 at the time of the offence, and was under care, supervision or authority of the accused, add the following section.]

If you find that the accused is guilty of sexual penetration of a child under 16, you must then decide whether the prosecution has also proven beyond reasonable doubt that at the time the act of sexual penetration took place:

  1. The complainant was between the ages of 10 and 16; and
  2. The complainant was under the care, supervision or authority of the accused.

 

Last updated: 21 August 2008

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

7.3.12.6 - 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