The elements of the offence are set out in s49A(1) of the Crimes Act 1958. The prosecution must prove that:
The accused (A) intentionally:
sexually penetrated another person (B);
caused or allowed B to sexually penetrate A; or
causes B to sexually penetrate themselves, another person (C) or be sexually penetrated by C; and
B is a child under the age of 12 years.
Intentional sexual penetration
The first element involves three permutations on B being involved in an act of sexual penetration (Crimes Act 1958 s49A).
"Sexual penetration" is defined in s35A of the Crimes Act 1958. For more information on the meaning of sexual penetration see Rape.
The intention must have been to sexually penetrate or be penetrated. An intent to commit an indecent assault is not sufficient (Anderson v R  VSCA 108).
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  VSCA 108).
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 basic intent or voluntariness, as the case may be, beyond reasonable doubt (R v AJS (2005) 12 VR 563; MG v R (2010) 29 VR 305; Anderson v R  VSCA 108). See also Voluntariness.
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  VSCA 108; R v AJS (2005) 12 VR 563).
Child Under 12
The second element requires the prosecution to prove that the complainant was under the age of 12 at the time the relevant act took place (Crimes Act 1958 s49A(1)).
Medical or hygienic purposes
A person does not commit the offence against s49A(1) if the accused’s conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes (Crimes Act 1958 s49T).
Matters that do not provide a defence
Belief in age
The Crimes Act 1958 specifically provides that a mistaken but honest and reasonable belief that the child was aged 12 or more is not a defence (Crimes Act 1958 s49ZC).
Consent forms no part of the definition of the offence and is irrelevant.
Marriage and domestic partnerships
Sections 49Y and 49Z specifically recognises that marriage, domestic partnership or a reasonable belief in marriage or a domestic partnership will be a defence for some sexual offences against children. However, section 49A is not such an offence (Crimes Act 1958 ss49Y, 49Z).