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7.3.14.1 - Charge: Sexual penetration of a 16 or 17 year old child - Consent not in issue

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When to use this charge

This charge can be used for trials commenced on or after 1/1/08 involving offences alleged to have been committed on or after 5/8/1991 where consent is not in issue.

If consent is in issue, use one of the following charges:

 

I must now direct you about the crime of sexual penetration of a 16 or 17 year old child.

The law says that the age of consent for sexual acts is normally 16. However, for persons aged 16 or 17, the law has created this specific offence to protect such young people from exploitation by persons in positions of care, supervision or authority.

To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt.

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

Two - the accused intended to take part in that act of sexual penetration.

Three - the complainant was either 16 or 17 years of age at the time that the act of sexual penetration took place.

Four - the accused was not married to the complainant.

Five - at the time that the act of sexual penetration took place, the complainant was under the care, supervision or authority of the accused.

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

Taking part in 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 in issue, add: The prosecution must also prove that the relevant acts of the accused were performed consciously, voluntarily and deliberately.] [2]

Act of sexual penetration

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 voluntariness in issue, add the 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 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 circumstances 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 relevant evidence or competing arguments about proof of the accused’s participation in an act of sexual penetration].

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.

The third element relates to the complainant. The prosecution must prove that the [he/she] was either 16 or 17 years of age at the time that the alleged act of sexual penetration took place.

In this case, there is no dispute that NOC was [16/17] at the time the alleged act of sexual penetration took place. The main issue in this case is [insert relevant issue]. [4]

Accused not married to the complainant

The fourth element that the prosecution must prove is that the accused was not married to the complainant at the time the alleged act of sexual penetration took place.

In this case, the defence has not disputed the prosecution’s submission that [he/she] was not married to NOC at the time that the alleged act of sexual penetration took place. The main issue in this case is [insert relevant issue]. [5]

Care, supervision or authority

The fifth element that the prosecution must prove is that, at the time that the act of sexual penetration took place, the complainant was under the care, supervision or authority of the accused.

[If care, supervision or authority is not in issue, add the following shaded section]

In this case it was conceded by the defence that NOA was NOC’s [describe relationship] and that the complainant was thus under the care, supervision or authority of the accused [at the relevant time]. While it is for you to determine whether this was the case, you should have no difficulty finding that this element has been proven.

[If care, supervision or authority is in issue and s48(4) applies, add the following shaded section]

[Note: Section 48(4) of the Crimes Act 1958 will apply if the relationship between the accused and the complainant is listed in s48(4), and the offence was alleged to have been committed on or after 1 December 2006. If the prosecution relies on s48(4) and the phrase 'care, supervision or authority' as alternatives, this charge will need to be modified.]

Parliament has defined a number of relationships where a child is deemed to be under the care, supervision and authority of another person. This includes [name relevant relationships from s48(4) list].

In this case the prosecution alleged that NOA was NOC’s [describe relationship]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

If you find beyond reasonable doubt that NOA was NOC’s [identify relationship] at the time of the alleged offence(s), then you will find this element has been proven.

[If care, supervision or authority is in issue and s48(4) does not apply, add the following shaded section]

[Note: Section 48(4) of the Crimes Act 1958 will not apply if the relationship between the accused and the complainant is not listed in s48(4), or if the offence was alleged to have been committed before 1 December 2006.
The words “care, supervision or authority” all describe different types of relationships where the accused is in a position to exploit or take advantage of that relationship to influence the child to engage in an act of sexual penetration. You should take this into account when deciding whether the prosecution has proved that the complainant was under the accused’s care, supervision or authority.

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, supervision or authority is sufficient.

[If relevant, add: You do not need to find that the alleged act of penetration was actually connected with, or influenced by, the relationship of care, supervision or authority or that NOA was actually exploiting his/her position of advantage. It is sufficient if you are satisfied that an established relationship of care, supervision or authority existed between NOA and NOC that could have been connected with, or influenced the child to engage in, the act of sexual penetration, and that the relationship existed on the day on which the penetration took place.]

In this case the prosecution alleged that NOC 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 proven, beyond reasonable doubt, that NOC was under NOA’s care, supervision or authority at the time that the act of sexual penetration took place.

[If the accused may be unaware of the facts giving rise to a relationship of care, supervision or authority, add the following shaded section]

The law states that NOA must know and be aware of the facts that give rise to a relationship of care, supervision or authority. For example, if a teacher with a large number of students did not recognise the complainant was a member of one of his/her classes, then you could not find this element proved.

[Insert relevant prosecution and defence evidence and arguments].

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 or marriage to complainant) is contested.]

To protect children, 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.

Summary

To summarise, before you can find NOA guilty of sexual penetration of a 16 or 17 year old child, the prosecution must prove to you beyond reasonable doubt:

One – that NOA took part in an act of sexual penetration with the complainant; and

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

Three – that NOC was either 16 or 17 years of age at the time that the act of sexual penetration took place; and

Four – that NOA and NOC were not married at the relevant time; and

Five – that NOC was under NOA’s care, supervision or authority 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 aged 16 or 17.

 

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 in the instructions within this charge as the "voluntariness" requirement

[3] If the accused is alleged to have penetrated the complainant, "intention" will only rarely be in issue. This constitutes an offence of basic intent, that is, the intent to commit the physical act of penetrating the complainant. This means that proof of intent will rarely be separated from proof of the act, and "intention" will rarely be an independent issue. Any mental state issues related to the act of penetration (e.g. the negation of intent by involuntariness, unconsciousness or accident) should generally be addressed by voluntariness directions. Offences involving penetration of the accused by the complainant may raise different issues.

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

[5] If it is alleged that the accused and complainant were married, this section will need to be modified accordingly.

 

Last updated: 14 May 2015

See Also

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

7.3.14.2 - Checklist: Sexual penetration of a 16 or 17 year-old child - Consent not in issue

7.3.14.3 - Charge: Sexual penetration of a 16 or 17 year old child (1/12/06 – 30/6/17) - Consent in issue

7.3.14.4 - Charge: Sexual penetration of a 16 or 17 year old child (1/1/92 - 1/12/06) – Consent in issue

7.3.14.5 - Checklist: Sexual penetration of a 16 or 17 year-old child (1/1/92 – 30/6/17) - Consent in issue