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7.3.14.3 - Charge: Sexual penetration of a 16 or 17 year old child (1/12/06 – 30/6/17) - Consent 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 1/12/2006 where consent is in issue.

Alternative charges

For other cases see the 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 following 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

Note

  • This charge addresses consent coupled with a belief on reasonable grounds that the child was aged 18 or older (s48(2)(a)). If the issue is s48(2)(b) (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 16 or 17 year old child (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 18 or more

Even if you find that the prosecution has proven all five 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 18 years old at the time of the alleged sexual 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 18 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 18 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 alleged 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 alleged sexual act, that the complainant was 18 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 18 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 proven that s/he believed on reasonable grounds that NOC was at least 18 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 proven.

[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 lack of resistance or injury or about past consensual sex, add the following darker shaded section]

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 proven 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 proven the five 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, that NOC was aged 16 or 17 at the relevant time, that NOA was not married to NOC and that at the relevant time, NOC was under the care, supervision or authority of the accused. If the prosecution cannot prove all five of these elements, then you must find NOA not guilty of this offence.

Next, if you find that the prosecution has proven 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 proven, on the balance of probabilities, that s/he believed that NOC was at least 18 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 proven each of the first three elements of the offence beyond reasonable doubt.

If, however, you find that the accused has proven these matters as to belief in age on the balance of probabilities, you must then decide whether the prosecution has proven, 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 proven beyond reasonable doubt, together with each of the first five elements of the offence, that you can convict NOA of sexual penetration of a child aged 16 or 17.

 

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.

If you decide that each of these elements have been proven 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 aged of 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: 30 November 2017

See Also

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

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

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