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7.3.10.1 – Charge: Sexual Penetration of a Child Under 12 (From 1/7/17)

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

I must now direct you about the crime of sexual penetration of a child under the age of 12. To prove this crime, the prosecution must prove the following 2 elements beyond reasonable doubt:

One - the accused intentionally sexually penetrated the complainant.[1]

Two – the complainant was under the age of 12 at that time.

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

Intentional sexual penetration

Warning! This charge is designed for cases where the prosecution relies on s49A(1)(a)(i). This direction on the first element must be modified if the prosecution relies on other limbs of s49A(1)(a).

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused intentionally sexually penetrated the complainant, NOC.

The prosecution seeks to prove this element by showing that NOA [describe relevant form of penetration, e.g. "put his finger into NOC’s anus"]. I direct you as a matter of law that if you find that NOA did this, then the prosecution has proved this first element.

[If relevant add:

[If the evidence or arguments have placed the intentional or voluntary nature of the acts in issue, add the following shaded section.][2]

For this element to be met, the act of [describe relevant act of penetration, e.g. "introducing his finger into NOC’s anus"/ "receiving NOC’s penis into his mouth"] must have been done intentionally.

This means that you must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves intention 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 vaginal penetration cases, add the following shaded section.]

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 / NOC] introduced [identify body part or object] to any extent between the outer lips of [NOA/NOC’s] vagina.

[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 or body part into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done in the course of a procedure carried out in good faith for medical or hygienic purposes. 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 or body part] by NOA into NOC’s [anus/vagina], was not done in the course of a procedure carried out in good faith for [medical/hygienic] purposes.

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

Child under the age of 12

The second element relates to the age of the complainant, NOC. The prosecution must prove that s/he was under the age of 12 when the alleged act of sexual penetration took place.

In this case, there is no dispute that NOC was under 12 at that time. The main issue in this case is [insert relevant issue].[3]

Statutory defences and exclusions

Direction on matters that are not a defence

To protect children under the age of 12, Parliament has specifically stated that consent is not relevant to this offence. You do not need to consider the issue of whether or not NOC agreed to be sexually penetrated by NOA.

Parliament has also stated that NOA belief about NOC’s age is also not relevant. For the second element, you must only look at how old NOC was at the time of the conduct. Whether NOA knew that NOC under 12 at the time is not relevant.

Summary

To summarise, before you can find NOA guilty of sexual penetration of a child under the age of 12, 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 12.

Last updated: 1 July 2017

Notes

[1] - This statement of the element must be modified if the prosecution relies on the other limbs of s49A(1)(a). The words “sexually penetrated the complainant” may be replaced with “caused or allowed the complainant to sexually penetrate the accused” or “caused the complainant to sexually penetrate himself / herself” or “caused the complainant to sexually penetrate another person” or “caused the complainant to be sexually penetrated by another person”

[2] - Because of how the offence is defined, the issue of intention is likely inseparable from the question of voluntariness. Where the issue is raised, the judge should direct the jury on the specific matters the jury must consider to find that the accused’s conduct was voluntary and intentional (e.g. disproof of accident or proof that the accused was conscious).

[3] - If the complainant’s age is disputed, this section of the charge will need to be modified accordingly

See Also

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

7.3.10.2 – Checklist: Sexual Penetration of a Child Under 12 (From 1/7/17)