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

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

 

When to use this charge

This charge can be used for trials involving offences alleged to have been committed before 1/3/1981.

Alternative charges

For other cases see the charges:

 

I must now direct you about the crime of carnal knowledge of a girl under the age of 10. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt.

One - the accused took part in an act of sexual penetration with a girl.

Two - the accused did this intentionally.

Three - the girl was under the age of 10 at the time that the sexual penetration took place.

Four – The complainant was not married to the accused.

I will now explain each of these elements in more detail. [1]

Unlawful Carnal Knowledge

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused sexually penetrated a girl, NOC. [If the conscious, voluntary or deliberate nature of the act is in issue, [2] add: The prosecution must also prove that the relevant acts of the accused were performed consciously, voluntarily and deliberately.]

The law defines sexual penetration as the introduction of a person’s penis into another person’s vagina.

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 introduced his penis to any extent between the outer lips of NOC’s vagina.

[If relevant add:

If the evidence or arguments have placed the conscious, voluntary or deliberate nature of the acts in issue, add the following shaded section

For this element to be met, the act of putting NOA’s penis in NOC’s vagina must have been done 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 circumstance of the case, e.g. "NOA was conscious and not asleep and dreaming at the time of the penetration"].

In this case [insert evidence and arguments relevant to proof of this element].

Intention

The second element that the prosecution must prove beyond reasonable doubt is that the accused intended to sexually penetrate 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. if you are satisfied that the accused [consciously, voluntarily and deliberately] sexually penetrated the complainant, you should have no trouble finding that s/he did so intentionally.]

Child Under the Age of 10

The third element relates to the complainant. The prosecution must prove that she was under the age of 10 when the alleged act of sexual penetration took place.

In this case, [describe competing evidence and arguments].

Accused Not Married to the Complainant

The fourth element that the prosecution must prove is that the complainant and accused were not married at the time the act of sexual penetration took place.

In this case, there is no dispute that NOC and NOA were not married at that time. The main issue in this case is [insert relevant issue].

Summary

To summarise, before you can find NOA guilty of unlawful carnal knowledge of a girl under the age of 10, the prosecution must prove to you beyond reasonable doubt:

One - that NOA sexually penetrated a girl, NOC; and

Two - that NOA intended to sexually penetrate NOC; and

Three - that NOC was under the age of 10 at the time that the act of sexual penetration took place; and

Four – that NOC was not married to NOA 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 girl under the age of 10.

 

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 hereafter as the "voluntariness" requirement.

[3] Because sexual penetration of a child under 10 is an offence of basic intent (the intent to take part in the act of penetration), proof of intent will rarely be separated from proof of the act, and "intention" will rarely be an independent issue. Mental state issues related to the intention to penetrate (e.g. the negation of intent by involuntariness, unconsciousness or accident) should generally be addressed by voluntariness directions.

 

Last updated: 3 December 2012

See Also

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

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)