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7.3.16.7 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent in Issue

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Five elements that 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 age of 16 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 child under 16

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 child under 16

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 child under 16

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 child under 16

Complainant’s Age

5. Was the complainant under the age of 16 at the time the act was committed?

If Yes, then go to 6

If No, then the accused is not guilty of committing an indecent act with a child under 16

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 16 or older and consented to the indecent act. If consent is in issue because the accused alleged that s/he is not more than 2 years older than the complainant, or 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 you are satisfied the defence has proven, on the balance of probabilities, both that:

6. The accused believed that the complainant was aged 16 or older at the time the indecent act took place; and

7. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.

If Yes to both questions, then go to 8

If No to either question, then the accused is guilty of committing an indecent act with a child under 16 (as long as you answered yes to questions 1, 2, 3, 4 and 5)

Lack of Consent

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

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

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

Consent

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

If Yes, then go to 9

If No, then the accused is not guilty of committing an indecent act with a child under 16 (as long as you answered yes to questions 7 and 8)

Awareness of Lack of Consent

9. 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 child under 16 (as long as you answered yes to questions 1, 2, 3, 4, 5 and 8)

If No, then the accused is not guilty of committing an indecent act with a child under 16 (as long as you answered yes to questions 7 and 8)

 

 Last updated: 22 January 2016

See Also

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

7.3.16.1 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent not in issue

7.3.16.2 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent Not in Issue

7.3.16.3 - Charge: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.4 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.5 - Charge: Indecent Act with a Child Under 16 (1/7/15 – 30/6/17) - Consent in issue

7.3.16.6 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/15) - Consent in issue

7.3.16.8 - Charge: Indecent Act with a child under 16 (1/12/06 – 21/10/14) - Consent in issue

7.3.16.9 - Charge: Indecent Act with a child under 16 (1/1/92 – 1/12/06) - Consent in issue

7.3.16.10 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent in Issue