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7.3.19.3 - Charge: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent in issue

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When to use this charge

This charge can be used for trials commenced on or after 1/1/2008 involving offences alleged to have been committed between 5/8/1991 and 30/11/06 where consent is in issue. If consent is not in issue, use Charge: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent not in issue instead.

For offences alleged to have been committed after 1 December 2006, see:

 

I must now direct you about the crime of [committing/being a party to the commission of] an indecent act with a 16 year old child.

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

To prove this crime, the prosecution must prove the following 7 elements beyond reasonable doubt:

One - the accused [committed the alleged act/was a party to the commission of the alleged act].

Two - the accused [wilfully committed the alleged indecent act/was wilfully a party to the alleged indecent act].

Three - the act occurred in indecent circumstances.

Four - the act was intentionally done [with/in the presence of] the complainant.

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

Six - the complainant was 16 years old when the act took place.

Seven - the accused was not married to the complainant at the time the alleged act took place.

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

Actions of the accused

The first element relates to what the accused did. [S/he] must have [committed the act alleged by the prosecution/been a party in any way to the act alleged by the prosecution].

In this case the prosecution alleged that NOA [insert evidence about the relevant act]. The defence responded [insert relevant evidence and/or arguments].

Wilful

The second element relates to the accused person’s state of mind. The prosecution must prove that the accused [wilfully committed the alleged indecent act/was wilfully a party to the alleged indecent act]. That is, you must be satisfied that the accused’s participation in the act was deliberate not accidental.

Indecent circumstances

The third element that the prosecution must prove is that the alleged act occurred in indecent circumstances.

Indecent is an ordinary, everyday word, and it is for you to determine whether the circumstances were indecent.

However, the law says that indecent circumstances must involve a sexual connotation. This may arise from the area of the complainant’s body NOA touched, what NOA used to touch NOC or from the circumstances of the act. Beyond the requirement of a sexual connotation, the question of whether or not the circumstances were indecent is for you to decide.

In this case, the prosecution alleged that NOA’s act occurred in indecent circumstances because [insert evidence]. [If relevant add: The defence responded [insert evidence]].

For this element to be met, you must be satisfied, beyond reasonable doubt, that NOA’s act occurred in indecent circumstances.

With/In the presence of the complainant

The fourth element that the prosecution must prove is that the alleged act was intentionally done [with/in the presence of] the complainant.

In this case the prosecution submitted that [insert evidence about the way in which the act was committed with or in the presence of the complainant]. The defence responded [insert relevant evidence and/or arguments].

[If it is alleged that the act was committed in the presence of the complainant, add the following shaded text]

For this element to be satisfied, you do not need to find that there was any physical contact between NOA and NOC. This element will be met if the prosecution can prove, beyond reasonable doubt, that NOC was present at the place where the alleged act was committed, and NOA was aware of that fact.

Care, Supervision and Authority

The fifth element that the prosecution must prove is that, at the time that the alleged indecent act 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 add the following shaded section.

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 take part in an act in indecent circumstances.[2] 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 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 alleged act, and that the relationship existed on the day on which the act 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 alleged act took place.

16 Year old child

The sixth element relates to the complainant. The prosecution must prove that the s/he was 16 years old at the time that the alleged indecent act took place.

In this case, there is no dispute that NOC was 16 at the time the alleged indecent act took place. The main issue in this case is [insert relevant issue]. [3]

Accused not married to the complainant

The seventh element that the prosecution must prove is that the accused was not married to the complainant at the time the alleged indecent act took place.

In this case, the defence has not disputed the prosecution’s claim that s/he was not married to NOC at the time that the alleged act took place. The main issue in this case is [insert relevant issue].[4]

Consent

Note

  • This charge addresses consent coupled with a belief on reasonable grounds that the child was aged 17 or older (s49(2)(a)). If the issue is s47(2)(b) (accused believed on reasonable grounds that s/he was married to the complainant) the charge will need to be adapted accordingly. See Indecent act with a 16 year old child (5/8/91 – 30/11/06) for guidance.

Belief that complainant was aged 17 or more

Even if you find that the prosecution has proven all seven 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 17 years old at the time of the alleged indecent act.

As a result, the prosecution must prove beyond reasonable doubt either:

  1. That NOA did not believe that NOC was aged 17 or older at the time of the alleged indecent act; or
  2. That NOA did not have reasonable grounds to believe that NOC was aged 17 or older at the time of the alleged indecent act.

For there to be reasonable grounds for a belief, the belief must be based on facts which could have caused a reasonable person to believe the same thing. So to prove this second alternative the prosecution must prove that even if NOA may have believed NOC was 17 or older, a reasonable person in his/her situation could not have reached that conclusion based on the facts known to NOA.

In this case the prosecution alleged [insert relevant evidence and/or arguments]. In response, the defence submitted [insert relevant evidence and/or arguments].

If the prosecution has proven beyond reasonable doubt, that NOA did not believe on reasonable grounds that NOC was at least 17 years old at the time of the alleged indecent act, then consent will not be a defence, and will not be relevant to your determination of the accused’s guilt.

If the prosecution has conceded either consent or belief in consent, add the shaded section

If, however, you find that this has not been proven, then you will find the accused not guilty. This is because the prosecution does not dispute that [insert basis of concession about consent, e.g. "NOC was consenting" or "NOA believed that NOC was consenting"].

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 this has not been proven, then you will need to determine whether the prosecution have proved two additional elements: first, that NOC did not consent to the alleged indecent act 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 indecent act 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 indecent act. So if consent is relevant to your determination, and the prosecution cannot prove beyond reasonable doubt that NOC did not freely agree to the alleged indecent act, 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 an indecent act. 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 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 alleged indecent act 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 follow 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 alleged indecent act, you must consider all of the relevant evidence, including what s/he is alleged to have said and done at the time of that act, 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 act.

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 indecent act the accused was aware either:

that the complainant was not consenting; or

that the complainant might not be consenting.

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. You will only need to consider this issue if the prosecution fails to prove:

(1) That NOA did not believe that NOC was aged 17 or older at the time of the alleged indecent act; or

(2) That NOA did not have reasonable grounds to believe that NOC was aged 17 or older at the time of the alleged indecent act.

 

Summary

To summarise, before you can find NOA guilty of [committing/being a party to the commission of] an indecent act with a 16 year old child, the prosecution must prove to you beyond reasonable doubt:

One - that NOA [committed [insert relevant act]/was a party to the commission of [insert relevant act]]; and

Two - that NOA [wilfully committed/was wilfully a party to] the alleged indecent act; and

Three - that this act occurred in indecent circumstances; and

Four - that this act was done [with/in the presence of] NOC; and

Five - That NOC was under the care, supervision or authority of NOA at the time that this act took place; and

Six - that NOC was 16 years old when this act took place; and

Seven - that NOA was not married to NOC at the time that this act 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 [committing/being a party to the commission of] an indecent act with a 16 year old child.

If you decide that each of these elements have been proved beyond reasonable doubt, you must decide if the prosecution has also proved, to the same standard:

If the prosecution has proved one of these matters, 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 the prosecution has not proved either of these matters, you must then decide if the prosecution has proved, beyond reasonable doubt, that NOC did not consent to the indecent act 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 [committing / being a party to the commission of] an indecent act with a child aged of 16.

 

Notes

[1] This charge concerns s49(1) of the Crimes Act 1958 as in force prior to 1 December 2006. For offences alleged to have been committed on or after 1 December 2006, see Charge: Indecent Act with a 16 or 17 Year Old Child (1/12/06 – 30/6/17).

[2] This charge is designed for cases where the accused committed an indecent act with the complainant. In cases the act is committed in the presence of, the charge will need to be modified.

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

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

Last updated: 27 April 2016

See Also

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

7.3.19.1 - Charge: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent not in issue

7.3.19.2 - Checklist: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent not in issue

7.3.19.4 - Checklist: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent in issue