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

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 between 1/3/1981 and 4/8/1991.

Alternative charges

For other cases see the charges:

 

I must now direct you about the crime of sexual penetration of a child under the age of 10. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt.

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

Two - the accused did this intentionally.

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

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

Taking Part in an Act of Sexual Penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused took part in an act of sexual penetration with the complainant. [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 or object into another person’s vagina or anus. It also includes putting a penis into someone’s mouth.

For this first element to be satisfied, the prosecution must prove that NOA took part in one of these acts. The law says that both the person who sexually penetrates and the person who is penetrated are regarded as "taking part" in sexual penetration. [If relevant add:This means that if you find that NOA was sexually penetrated by NOC, you will be satisfied that the accused "took part" in that act of sexual penetration.]

In this case the prosecution seeks to prove that NOA took part in an act of sexual penetration with NOC [describe relevant form of penetration, e.g. "when he took NOC’s penis in his mouth"].

[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 [describe relevant act of participation, e.g. "introducing his finger into NOC’s anus"/ "receiving NOC’s penis into his mouth"] 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 introduced his finger into NOC’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the penetration"].

In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section

However, according to the law, the introduction of an object into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done as part of some generally accepted medical treatment. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the insertion of [name of object] by NOA into NOC’s [anus/vagina], was not done as part of a generally accepted medical treatment.

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 take part in the act of sexual penetration with the complainant. [3]

If intention is not in issue, add the 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 s/he was under the age of 10 when the alleged act of sexual penetration took place.

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

Summary

To summarise, before you can find NOA guilty of sexual penetration of a child under the age of 10, the prosecution must prove to you beyond reasonable doubt:

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 child 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), the issue of intention is only likely to arise in cases involving penetration of the accused by the complainant. In cases where the accused is alleged to have penetrated the complainant, 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)

7.3.23.1 - 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)

7.3.23.4 - 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)