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7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

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Commencement Information

  1. For offences alleged to have been committed before 1 July 2017, s47 contained the offence of indecent act with a child under 16.
  2. This offence came into force on 5 August 1991, replacing the former offences specified in s44(3) (indecent assault on a person under the age of 16 years) and s50 (gross indecency).
  3. The offence applies to any acts committed on or after 5 August 1991 and before 1 July 2017 (Crimes Act 1958 s585A(2)).
  4. If an offence is alleged to have been committed between dates, one date before and one date on or after 5 August 1991, the offence is alleged to have been committed before 5 August 1991 (Crimes Act 1958 s585A(4)).
  5. The offence was amended on 22 October 2014 by section 5 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014. This amendment removed reference to the accused and the complaint not being married.
  6. The current s47(2) and s47(3) apply only to offences committed on or after 1 December 2006. Their impact is considered below in the discussion of Statutory defences and exemptions.

    Indecent Acts

  7. An indecent act is one which "right-minded persons would consider to be contrary to community standards of decency" (DPP v Scott [2004] VSC 129; Curtis v R [2011] VSCA 102).
  8. Although two teenagers of the same age kissing each other may not, of itself, be an indecent act, instigating two teenagers to kiss for the accused’s sexual gratification may be (Curtis v R [2011] VSCA 102).
  9. For the purposes of s47, an "indecent act" includes an indecent assault (R v TSR (2002) 5 VR 627).
  10. See Indecent Assault for further guidance on the meaning of indecency.

    "Wilfully"

  11. Section 47 provides that a person must not "wilfully" commit, or "wilfully" be in any way a party to the commission of an indecent act with or in the presence of a child under the age of 16.
  12. There has been much dispute over the meaning of the word "wilfully", and it appears that its meaning varies according to the particular statutory provision in which it appears (for a general discussion of the term, see Ianella v French (1968) 119 CLR 84; Bergin v Brown [1990] VR 888).
  13. Although the meaning of the word "wilfully" in the context of s47 has not been determined, it seems likely that it means intentionally (see, e.g., R v Papamitrou (2004) 7 VR 375, which casts doubt on the relevance of recklessness to s47).
  14. Although it has not been judicially determined, it seems likely that the accused must have not only wilfully committed the relevant indecent act, but have wilfully committed it with or in the presence of a child.

    "With or in the presence of"

  15. Under s47, the relevant act must be committed "with" or "in the presence of" a child under the age of 16.
  16. The use of the words "with" and "in the presence of" does not create two separate offences. Section 47 creates a single offence that deals with indecent acts involving children under the age of 16 (R v Coffey (2003) 6 VR 543; R v ADJ [2005] VSCA 102).
  17. A count that specifies that an act was committed "with or in the presence of" a child would therefore not be bad for duplicity (R v Coffey (2003) 6 VR 543).
  18. Committing an act "with" a child does not require the child to have co-operated, consented or participated in the act. The offence may be constituted by an indecent act committed against the child, regardless of whether or not they were consenting or approving (R v TSR (2002) 5 VR 627).
  19. For an act to have been committed "with" a child (cf. "in the presence of" a child), there must have been physical contact between the parties. Speaking indecently to a child over the telephone is therefore incapable of constituting an offence under s47, as it is neither "with" a child nor in their presence (R v Alexander and McKenzie (2002) 6 VR 53. See also R v Coffey (2003) 6 VR 543).
  20. No physical contact is required for an act to have been committed "in the presence of" a child. An act committed in front of a child is committed in their presence (R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183; R v Coffey (2003) 6 VR 543; R v Barnes [2003] VSCA 156).
  21. While an accused who encourages a child to perform an indecent act in front of them will be a party to the commission of an indecent act "in the presence of" a child (R v Coffey (2003) 6 VR 543), there is no need for there to be an act of encouragement to satisfy this element of the offence. The words "in the presence of" do not require anything more than mere presence or proximity (R v ADJ [2005] VSCA 102).
  22. In South Australia it has been held (in relation to a similar offence) that "in the presence of" simply requires that the child be present. It is not necessary that the child saw the indecent act or was aware of it. The offence will be established even if the child was asleep at the time (R v AWL [2003] SASC 416).

    Child under 16

  23. The jury should determine the complainant’s age having regard to the evidence in the case, or if no other sufficient evidence is presented, to the complainant’s appearance (Crimes Act 1958 s411).

    Consent

  24. Section 47(2) states that consent is not a defence to a charge of committing an indecent act with a child under 16, unless at the time of the alleged offence:
  25. The prosecution does not have to address the question of consent as part of its case - it is a matter for the defence to raise (R v TSR (2002) 5 VR 627).
  26. For information on this defence, see Sexual Penetration of a child under 16, where the equivalent defence under s45(4) is discussed.

Last updated: 30 November 2017

In This Section

7.3.16.1 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent not in issue

7.3.16.2 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent Not in Issue

7.3.16.3 - Charge: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.4 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.5 - Charge: Indecent Act with a Child Under 16 (1/7/15 – 30/6/17) - Consent in issue

7.3.16.6 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/15) - Consent in issue

7.3.16.7 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent in Issue

7.3.16.8 - Charge: Indecent Act with a child under 16 (1/12/06 – 21/10/14) - Consent in issue

7.3.16.9 - Charge: Indecent Act with a child under 16 (1/1/92 – 1/12/06) - Consent in issue

7.3.16.10 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent in Issue

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

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

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography