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7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

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Overview

  1. The scope of the various sexual offences against children under the Crimes Act 1958 has changed over time. These can be divided into four discrete periods:
  2. This topic examines the directions a judge must give when:
  3. This topic is divided into three broad areas:

    Sexual Offences Against a Child Under 10

    Elements

  4. There are three elements to the statutory offences concerning children under 10. The prosecution must prove that:
    1. The accused took part in an a proscribed sexual act with the complainant;
    2. The accused intended to take part in a proscribed sexual act; and
    3. The complainant was under the age of 10 at the time the proscribed sexual act took place (Crimes Act 1958 s46 (pre 1/3/1981), s47 (1/3/1981 – 4/8/1991), s45 (5/8/1991 – 31/12/1991)).
  5. Consent has never been a defence to this offence (Crimes Act 1958 s49 (pre 1/3/1981), s47 (1/3/1981 - 4/8/1991), s45 (5/8/1991 – 31/12/1991)).

    Taking Part in a Proscribed Act of Sexual Penetration

  6. Over time, the nature of the proscribed sexual act has changed:

    Unlawful Carnal Knowledge and Abuse

  7. At common law, carnal knowledge only consisted of penetration of a vagina by a penis. Other forms of sexual penetration were dealt with under the offence of indecent assault (see, on similar though not identical legislation, R v McCormack [1969] 2 QB 442).
  8. This element was met when there was any penetration of the complainant’s labia by the penis (R v Lines (1844) 1 Car & K 393; Randall v R (1991) 53 A Crim R 380; R v DD (2007) 19 VR 143).
  9. From 5 August 1991, the Crimes Act 1958 defined vagina to include a surgically constructed vagina. It is unclear whether the common law recognised penetration of an artificially constructed sexual organ as sexual penetration (see R v Cogley [1989] VR 799; R v Harris & McGuiness (1988) 17 NSWLR 158).
  10. This element was met by penetration "to any extent". Consequently:
  11. The meaning of the terms "unlawful" and "abuse" in the phrase "unlawful carnal knowledge and abuse" are not clear.
  12. While the term "unlawful" may mean "outside the bounds of marriage", there is also authority indicating that the term is surplusage (compare R v R [1992] 1 AC 599 and R v Champan [1959] 1 QB 100, though neither case concerned the specific Victorian provisions).
  13. As a matter of prudence, the charge assumes that the prosecution must prove that the accused and complainant were not married in order to prove "unlawful carnal knowledge and abuse".
  14. It is not necessary to use the phrase "carnal knowledge" when directing the jury about this element. The judge may instead use the term "sexual penetration", as long as he or she limits the meaning of that phrase to its common law meaning (R v DD (2007) 19 VR 143).

    "Sexual Penetration": The First Definition (1/3/81- 4/8/91)

  15. From 1 March 1981 to 4 August 1991, the Crimes Act stated that "sexual penetration" was:
  16. This definition removed the gendered nature of the offence, which previously could only be committed by a male against a female. Under this definition:
  17. It is unclear whether this definition uses the medical meaning of "vagina" (being the membranous passage or channel leading from the uterus to the vulva), or whether it should be interpreted in a manner consistent with the common law understanding of "sexual penetration" (which includes penetration of the external genitalia) (compare R v Lines (1844) 1 Car & K 393 and Holland v R (1993) 117 ALR 193. See also Randall v R (1991) 53 A Crim R 380 and R v AG (1997) 129 ACTR 1). [1] In cases where this is relevant, judges will need to engage in a process of statutory construction and will need to consider principles concerning the interpretation of ambiguous penal statutes and the interference with fundamental rights (see Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia (1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
  18. As was the case at common law, under this definition:
  19. It is not sufficient for the relevant body part to have simply been touched. It must have been penetrated to some extent (Anderson v R [2010] VSCA 108).
  20. Subject to the statutory exception regarding penetration by an object as part of accepted medical treatment, the purpose of the penetration is irrelevant. It need not have been committed for the purposes of sexual gratification (R v Dunn 15/4/1992 CA NSW).

    "Sexual Penetration": The Second Definition (5/8-31/12/91)

  21. From 5 August 1991 to 31 December 1991, the Crimes Act stated that "sexual penetration" was:

    "Taking Part" in an Act of Sexual Penetration

  22. For offences committed from 1 March 1981 to 31 December 1991, the prosecution must prove that the accused "took part" in an act of sexual penetration (Crimes Act 1958 s47 (1/3/1981 – 4/8/1991), s45 (5/8/1991 – 31/12/1991)).
  23. Both parties to an act of sexual penetration are deemed to have "taken part" in that act (Crimes Act 1958 s2A (1/3/1981 – 4/8/1991), s37 (5/8/1991 – 31/12/1991)).
  24. This means that an accused may be found guilty of the offence whether he or she was sexually penetrating the complainant or was being sexually penetrated by the complainant (see R v JC [2000] ACTSC 72 and Randall v R (1991) 53 A Crim R 380).

    Directing the Jury About the Meaning of "Vagina"

  25. The common law definition of vagina (and possibly the statutory definitions: see above) includes "the external genitalia". It has been held that this phrase is not within ordinary usage and needs more explanation (R v AJS (2005) 12 VR 563; Anderson v R [2010] VSCA 108; R v MG (2010) 29 VR 305).
  26. Consequently, where penetration is in issue, the judge should explain to the jury in precise and simple terms, what would constitute penetration of the vagina, and summarise the evidence that relates to that issue (R v AJS (2005) 12 VR 563; [2005] VSCA 288. See also Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108; R v MG (2010) 29 VR 305).

    Identifying the Penetrative Act

  27. While in most cases the prosecution will be able to particularise the method of penetration (e.g., the complainant was penetrated by a penis), in some cases this will not be possible. In such cases, it will be sufficient for the prosecution to particularise the method of penetration by reference to the relevant possibilities (e.g., the complainant was penetrated by a penis, a bodily part or some other object) (R v Castles (Ruling No.1) (2007) 17 VR 329).
  28. Where alternative possible methods of penetration are left to the jury, they do not need to unanimously agree about which of those methods was used. They only need to unanimously agree that penetration took place (R v Castles (Ruling No.1) (2007) 17 VR 329).

    Intention to Take Part in the Proscribed Sexual Act

  29. The second element requires the accused to have intended to take part in the proscribed sexual act (Crimes Act 1958 s45(1)).
  30. The intention must have been to sexually penetrate or be penetrated. An intent to commit an indecent assault is not sufficient (Anderson v R [2010] VSCA 108).
  31. There will often be no issue about whether the act was intentional. For example, if there is evidence that the penetration took place over an extended period of time, there will ordinarily be no doubt about the accused’s mental state (Anderson v R [2010] VSCA 108).
  32. However, in some cases intent will be in issue. Where this is so, it is of paramount importance that the jury be directed about the prosecution’s obligation to establish intent beyond reasonable doubt (R v AJS (2005) 12 VR 563; [2005] VSCA 288; MG v R (2010) 29 VR 305; Anderson v R [2010] VSCA 108).
  33. For example, a clear direction about intention will be necessary where it is possible that any penetration that occurred was accidental. Such a possibility must be excluded for this element to be proven (Anderson v R [2010] VSCA 108; R v AJS (2005) 12 VR 563; [2005] VSCA 288).

    Child Under 10

  34. The third element requires the prosecution to prove that the complainant was under the age of 10 at the time the relevant act took place (Crimes Act 1958 s45(1)).
  35. As this is an element of the offence, the jury must find the accused not guilty if it cannot be satisfied beyond reasonable doubt that the complainant was under 10 at the time of the offence (compare Crimes Act 1958 s45 as amended by Crimes (Amendment) Act 2000).

    Sexual Offences Against Children Aged 10 to 16

  36. While the name of the offence for unlawful sexual acts with children aged 10 to 16 has changed over time, the basic elements of the offence have remained the same. The prosecution must prove that:
    1. The accused took part in a proscribed sexual act with the complainant;
    2. The accused intended to take part in that proscribed sexual act;
    3. The complainant was under the age of 16 at the time the proscribed sexual act took place; and
    4. The accused was not married to the complainant.

    Taking Part in a Proscribed Sexual Act

  37. Over time, the nature of the proscribed sexual act has changed:
  38. These changes are described above in relation to the first element of "Sexual Offences Against a Child Under 10".

    Intention to Take Part in the Proscribed Sexual Act

  39. The second element requires the accused to have intended to take part in the proscribed sexual act (Crimes Act 1958 s48(1)).
  40. This is identical to the second element of sexual penetration of a child aged under 10 (see above).

    Child Aged between 10 and 16

  41. The third element requires the prosecution to prove that the complainant was between the age of 10 and 16 at the time the proscribed sexual act took place (Crimes Act 1958 s48(1)).
  42. As this is an element of the offence, the jury must find the accused not guilty if it cannot be satisfied beyond reasonable doubt that the complainant was aged between 10 and 16 at the time of the offence (compare Crimes Act 1958 s45 as amended by Crimes (Amendment) Act 2000).

    Child and Accused Not Married

  43. For offences committed between 1 March 1981 and 1 January 1992, there is a fourth element. The prosecution must prove that the accused and the complainant were not married to one another (Crimes Act 1958 s48).
  44. It is unclear whether this is also a requirement for offences committed before 1 March 1981. This will depend on whether the word "unlawful" in the phrase "unlawful carnal knowledge" means "outside marriage", or is mere surplusage (see "Unlawful Carnal Knowledge and Abuse" above).

    Date of Offence

  45. Prior to 5 August 1991, a statutory limitation period of 12 months applied to this offence if the complainant was aged 12 or above. [2]
  46. On 22 October 2014, section 74 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 commenced. This provision introduced Criminal Procedure Act 2009 section 7A and abolished “any immunity from prosecution arising because of the time limit” which previously applied in relation to these offences. The result is that for trials conducted after 22 October 2014, the prosecution does not need to prove that the complainant was under the age of 12 at the date of the offence. The prosecution will only need to prove that the child was aged between 10 and 16 at the date of the offence.

    Aggravating Circumstances

  47. The Crimes Act 1958 has always included an aggravated form of the offence of sexual penetration of a child aged 10 to 16, for cases in which the accused was in a position of trust or authority over the complainant.
  48. The precise form of this aggravating circumstance has changed over time:
  49. In the absence of a clarifying statutory provision, [2] it is likely that the imposition of an increased maximum penalty for offences committed in these circumstances means that the aggravated form of the offence is a separate offence from the basic offence of sexual penetration of a child aged between 10 and 16. If that is correct, then the prosecution must specifically charge the aggravated offence in the indictment, and the judge must direct the jury on the aggravating circumstance as an element of that offence (see R v Satalich (2001) 3 VR 231; R v Courtie [1984] AC 463; R v Hassett (1994) 76 A Crim R 19).

    Care, Supervision or Authority

  50. The words "care, supervision or authority" are to be given their ordinary grammatical meaning (R v Howes (2000) 2 VR 141). For further information on this point, see Sexual Penetration of a Child Under 16.

    Defences

  51. The available statutory defences to the various sexual offences against children aged between 10 and 16 have changed over time.
  52. Many of these defences concern the existence of consent or the accused’s belief in the complainant’s consent. Where consent is in issue, the judge must direct the jury in accordance with the current statutory provisions on consent. The transitional provisions on the legislation that introduced changes to the law on consent state that the legislative changes apply to all proceedings commenced after the amending legislation, regardless of when the alleged offence was committed (see Crimes (Rape) Act 1991 s9 and Crimes Act 1958 s609). For information on the current meaning of consent, see Consent and Awareness of Non-Consent.

    Offences Committed Before 1 March 1981

  53. Prior to 1 March 1981, consent was not a defence unless the girl was older than or of the same age as the defendant (Crimes Act 1958 s49).

    Offences Committed 1 March 1981 to 4 August 1991

  54. From 1 March 1981 to 4 August 1991, consent was only a defence if:
  55. The accused also had a discrete defence if he or she believed, on reasonable grounds, that he or she was married to the complainant at the time of the alleged offence (Crimes Act 1958 s48(5)).

    Offences Committed 5 August 1991 to 31 December 1991

  56. From 5 August 1991 to 31 December 1991, consent was a defence only if:
  57. During this period, having a belief in marriage was no longer a discrete defence. Instead, such a belief was merely a precondition for the availability of a defence of consent.

    Age Difference

  58. For offences committed between 1 March 1981 and 31 December 1991, consent is available as a defence if the accused is not more than two years older than the complainant.
  59. This defence is not available where the accused’s actual age exceeds the complainant’s by anything more than 24 months. The availability of the defence is not determined by a measure limited to whole-years (Stannard v DPP (2010) 28 VR 84).
  60. It is unclear whether a similar limitation applies to offences committed before 1 March 1981, where the defence of consent was available if the complainant was older than or the same age as the accused. In particular, it is not clear whether "the same age" means having the same date of birth, or includes the situation where the accused and complainant are, at the time of the alleged offence, the same age as measured in whole-years.

    Reasonable Grounds

  61. For there to be "reasonable grounds" for a state of mind (such as a belief), there must exist facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104).

    Burden of Proof

  62. Where there is an evidentiary basis for the defence of consent, the prosecution must disprove the existence of consent, or the grounds for a consent defence being available, beyond reasonable doubt (R v Mark & Elmazovski [2006] VSCA 251; R v Deblasis (2007) 19 VR 128; R v Fagone [2008] VSCA 175. Cf R v Douglas [1985] VR 721).
  63. Judges should carefully explain the burden of proof to the jury in a way they can understand (R v Fagone [2008] VSCA 175).

    Intoxication

  64. The fact that the accused had used drugs or alcohol may be relevant to his or her belief that the child was 16 or older (see, e.g., R v Fagone [2008] VSCA 175).
  65. However, this issue only needs to be addressed if there is a factual foundation for finding that the accused’s drug or alcohol use affected his or her belief that the child was 16 or older. The mere fact that he or she had used drugs or alcohol at the relevant time is not sufficient (R v Fagone [2008] VSCA 175).
  66. For further information on the relevance of drug or alcohol use generally, see Common Law Intoxication.

    Accused’s Awareness of the Absence of Consent

  67. Unlike the common law offence of rape, it has not been authoritatively determined whether, in circumstances where consent is a defence under the Act, the prosecution must prove both that the complainant was not consenting and that the accused was aware that the complainant was not consenting.
  68. However, despite the ambiguous drafting of the legislation, it is likely that wherever consent is an issue, mens rea in respect of consent will also be relevant. This would be consistent with the principles set down in He Kaw Teh v R (1985) 157 CLR 523 and now applied in relation to common assault by Parish v DPP (2007) 17 VR 412.
  69. If a mens rea requirement in respect of consent is to be implied, it will be necessary to determine the form of mens rea that will be sufficient. For rape and indecent assault at common law, the mens rea associated with consent is awareness that the complainant was not or might not be consenting (R v Saragozza [1984] VR 187, DPP v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118). It has been assumed that this form of mens rea attaches to the consent element of all relevant sexual offences, and the charges for these offences have been drafted accordingly.

    Notes

[1] If the legislation uses the medical definition, cases in which only the external genitalia have been penetrated will need to be charged as indecent assault instead.

[2] Compare Crimes Act 1958 s45(5) in the current version of the Act.

 

Last updated: 19 March 2015

In This Section

7.3.23.1 - Charge: Carnal Knowledge of a Girl Under 10 (Pre-1/3/81)

7.3.23.2 - Checklist: Carnal Knowledge of a Girl Under 10 (Pre-1/3/81)

7.3.23.3 - Charge: Sexual Penetration of a Child under 10 (1/3/81 - 4/8/91)

7.3.23.4 - Checklist: Sexual Penetration of a Girl Under 10 (1/3/81 - 4/8/91)

7.3.23.5 - Charge: Carnal Knowledge of a Girl Aged between 10 and 16 (Pre-1/3/81)

7.3.23.6 - Checklist: Carnal Knowledge of a Girl Between 10 and 16 (Pre-1/3/81)

7.3.23.7 - Charge: Sexual Penetration of a Child Aged Between 10 and 16 (1/3/81 - 4/8/91)

7.3.23.8 - Checklist: Sexual Penetration of a Girl Between 10 and 16 (1/3/81 - 4/8/91)

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

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

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

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

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

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography