For offences alleged to have been committed before 1 July 2017, s48 contained the offence of sexual penetration of a child aged 16 or 17.
This offence came into force on 5 August 1991.
The offence applies to any acts committed on or after 5 August 1991 and before 1 July 2017 (Crimes Act 1958 s585A(2)).
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)).
Section 48 was substantially amended in 2006. These changes apply only to offences committed on or after 1 December 2006. Their impact is considered below.
The elements of the offence are set out in s48(1) of the Crimes Act 1958. The section makes it an offence to take part in an act of sexual penetration with a 16 or 17 year old to whom the accused is not married and who is under their care, supervision or authority.
Taking part in an act of sexual penetration
"Sexual penetration" is defined in s35(1)(a) of the Crimes Act 1958. For more information on the meaning of sexual penetration see Rape.
Section 35(2) of the Crimes Act 1958 provides that both the person who sexually penetrates another person and that other person shall be deemed to be "taking part" in an act of sexual penetration. This means that an accused may be found guilty of the offence whether they were sexually penetrating the complainant or were being sexually penetrated by the complainant.
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).
Care, supervision or authority
Section 48(4) of the Crimes Act 1958 now non-exhaustively lists relationships where a child is deemed to be under the care, supervision or authority of a person. This list applies only in respect of offences alleged to have been committed on or after 1 December 2006.
The relationships listed are:
the child's teacher;
the child's foster parent;
the child's legal guardian;
a minister of religion with pastoral responsibility for the child;
the child's employer;
the child's youth worker;
the child's sports coach;
the child's counsellor;
the child's health professional;
a member of the police force acting in the course of his or her duty in respect of the child;
employed in, or providing services in, a remand centre, youth residential centre, youth training centre or prison and is acting in the course of his or her duty in respect of the child
Section 48(4) of the Crimes Act 1958 is a deeming provision. Where it applies, and where the jury finds that the accused falls within one of the listed categories, the jury should not be instructed to look beyond s48(4) to determine whether there was a relationship of "care, supervision or authority".
Where s48(4) of the Crimes Act 1958 does not apply (i.e. if the offence was committed before 1 December 2006), or where an accused does not fall within one of the listed relationships, courts must apply the common law definition of the terms "care, supervision or authority".
The words "care, supervision or authority" are to be given their ordinary grammatical meaning (R v Howes (2000) 2 VR 141).
The words "care, supervision or authority" should be read disjunctively (R v Howes (2000) 2 VR 141).
These words are intended to encompass those who, by virtue of an established and ongoing relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of the relationship (R v Howes (2000) 2 VR 141).
The relationship of care, supervision or authority does not need to be based on a legal right or power. While legal authority may create or help to create such a relationship, it is not essential (R v Howes (2000) 2 VR 141; R v Macfie  VSCA 173).
The words therefore cover a person who has assumed de facto control, supervision or authority over a child, even if responsibility for that child has not been delegated to them by the person with legal responsibility for that child (R v Macfie  VSCA 173).
Care, supervision or authority may be vested in more than one person or authority at the same time (R v Macfie  VSCA 173).
Care, supervision or authority may change from time to time, depending on the circumstances (R v Macfie  VSCA 173).
It is not necessary that the occasion on which the penetration took place was connected with, or arose out of, the relationship of care, supervision or authority, or that the parties were acting in the capacities which gave rise to the relationship. It is sufficient if the jury is satisfied that there was a standing relationship of care, supervision or authority between the parties, and that that relationship existed on the day on which the penetration took place (R v Howes (2000) 2 VR 141).
Section 48(2) states that consent is not a defence unless, at the time of the offence, the accused believed on reasonable grounds, that: