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7.3.18.4 - Checklist: Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17) – Consent in issue

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

 

[This checklist may be used for offences alleged to have been committed on or after 1 December 2006.

For offences alleged to have been committed prior to 1 December 2006, see: Checklist: Indecent Act With a 16 Year Old Child (5/8/91 – 30/11/06 - Consent in Issue.]

 

Seven elements the prosecution must prove beyond reasonable doubt:

  1. The accused [committed/was a party to the commission of] the alleged act; and
  2. The accused [wilfully committed/was wilfully a party to] the act; and
  3. The act occurred in indecent circumstances; and
  4. The accused did the act [with/in the presence of] the complainant; and
  5. The complainant was under the care, supervision or authority of the accused at the time the act was committed.
  6. The complainant was 16 or 17 years old at the time the act was committed; and
  7. The accused was not married to the complainant at the time the act was committed.

 

Accused's Acts

1. [Did the accused commit/Was the accused a party to the commission of] the alleged act?

If Yes, then go to 2

If No, then the accused is not guilty of

committing an indecent act with a 16 or 17 year old child

Accused’s Mental State

2. [Did the accused wilfully commit/Was the accused wilfully a party to] the act?

If Yes, then go to 3

If No, then the accused is not guilty of

committing an indecent act with a 16 or 17 year old child

Indecent Circumstances

3. Did the act occur in indecent circumstances?

Consider - sexual connotation

If Yes, then go to 4

If No, then the accused is not guilty of

committing an indecent act with a 16 or 17 year old child

Complainant’s Involvement

4. Did the act take place [with/in the presence of] the complainant?

If Yes, then go to 5

If No, then the accused is not guilty of

committing an indecent act with a 16 or 17 year old child

Care, Supervision or Authority

5. Was the complainant under the care, supervision or authority of the accused at the time that the act took place?

If Yes, then go to 6

If No, then the accused is not guilty of committing an

indecent act with a 16 or 17 year old child

Complainant’s Age

6. Was the complainant 16 or 17 years old at the time the act was committed?

If Yes, then go to 7

If No, then the accused is not guilty of

committing an indecent act with a 16 or 17 year old child

No Marital Relationship

7. Were the accused and the complainant married to each other at the time that the act took place?

If No, then go to 8

If Yes, then the accused is not guilty of

committing an indecent act with 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 alleged indecent act. If consent is in issue because the accused submitted that s/he believed on reasonable grounds that s/he was married to the complainant, it will need to be modified as necessary.]

Consent is only relevant if the defence has proven, on the balance of probabilities, that:

8. The accused believed that the complainant was aged 18 or older at the time the alleged indecent act took place; and

9. The accused’s belief that the complainant was aged 18 or older was based on reasonable grounds.

Accused’s Belief

8. Did the accused believe that the complainant was aged 18 or older at the time the alleged indecent act took place?

If Yes, then go to 9

If No, then consent is not relevant and the accused is guilty of committing an indecent act with a 16 or 17 year old child

(as long as you answered yes to questions 1, 2, 3, 4, 5 and 7, and no to question 6)

Reasonable Grounds for Belief

9. Was the accused’s belief that the complainant was aged 18 or older based on reasonable grounds?

Consider – Was the belief based on facts which would have caused a reasonable person to believe the same thing?

If Yes, then consent is relevant. Go to 10

If No, then consent is not relevant and the accused is guilty of committing an indecent act with a 16 or 17 year old child

(as long as you answered yes to questions 1, 2, 3, 4, 5 and 7, and no to question 6)

 

Lack of Consent

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

10. The complainant did not consent to the alleged indecent act; and

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

Consent

10. Did the indecent act occur without the complainant’s consent?

If Yes, then go to 11

If No, then the Accused is not guilty of

committing an indecent act with a 16 or 17 year old child
(as long as you answered yes to questions 8 and 9)

Awareness of Lack of Consent

11. At the time of alleged indecent act, 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 committing

an indecent act with a 16 or 17 year old child

(as long as you

answered yes to questions 1, 2, 3, 4, 5, 7 and 10, and no to question 6)

If No, then the Accused is not guilty of

committing an indecent act with a 16 or 17 year old child
(as long as you answered yes to questions 8 and 9)

 

Last updated: 1 March 2007

 

See Also

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.18.1 - Charge: Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17) – Consent not in issue

7.3.18.2 - Checklist: Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17) – Consent not in issue

7.3.18.3 - Charge: Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17) – Consent in issue