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

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

 

The Elements

Five 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 either 16 or 17 years of age at the time that the act of sexual penetration took place; and
  4. The accused was not married to the complainant at that time; and
  5. The complainant was under the care, supervision or authority of the accused at that time.

 

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 16 or 17 year-old child

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 16 or 17 year-old child

The Complainant’s Age

3. Was the complainant either 16 or 17 years of age 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 16 or 17 year-old child

No Marital Relationship

4. Were the accused and the complainant married to each other at the time that the act of sexual penetration took place?

If No, then go to 5

If Yes, then the accused is not guilty of
sexual penetration of a 16 or 17 year-old child

Relationship of Care, Supervision or Authority

5. Was the complainant in a relationship of care, supervision or authority with the accused at the time that the act of sexual penetration took place?

If Yes, then go to 6

If No, then the accused is not guilty of
sexual penetration of a 16 or 17 year-old child

 

 

Relevance of Consent

[This section of the checklist can be used if the accused alleged that s/he believed on reasonable grounds that the complainant was 18 or older and consented to the act of sexual penetration. If consent is in issue because the accused 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:

6. The accused believed that the complainant was aged 18 or older at the time the act of sexual penetration took place; and

7. The accused’s belief that the complainant was aged 18 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:

6. The accused did not believe that the complainant was aged 18 or older at the time the act of sexual penetration took place; or

7. The accused did not have reasonable grounds to believe that the complainant was aged 18 or older.

 

Lack of Consent

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

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

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

Consent

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

If Yes, then go to 9

If No, then the accused is not guilty of
sexual penetration of a 16 or 17 year-old child
(as long as you answered yes to questions 6 and 7)

Awareness of Lack of Consent

9. 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 16 or 17 year-old child

(as long as you also answered
yes to questions 1, 2, 3, 5 and 8, and no to question 4)

If No, then the accused is not guilty of
sexual penetration of a 16 or 17 year-old child
(as long as you answered yes to questions 6 and 7)

 

Last updated: 21 August 2008

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

7.3.14.3 - 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