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7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

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Commencement Information

  1. The current s49B offence came into force on 1 July 2017, replacing the former offences specified in s46 of the Crimes Act 1958.
  2. For offences committed before 1 July 2017, see Sexual Penetration of a Child Under 16.

    Elements

  3. The elements of the offence are set out in s49B(1) of the Crimes Act 1958. The prosecution must prove that:
    1. The accused (A) intentionally:
      1. sexually penetrated another person (B);
      2. caused or allowed B to sexually penetrate A; or
      3. causes B to sexually penetrate themselves, another person (C) or be sexually penetrated by C; and
    2. B is a child under the age of 16 years.

    Intentional sexual penetration

  4. The first element involves three permutations on B being involved in an act of sexual penetration (Crimes Act 1958 s49B).
  5. "Sexual penetration" is defined in s35A of the Crimes Act 1958. For more information on the meaning of sexual penetration see, Rape.
  6. For more information about this element, including proof of intention, see Sexual penetration of a child under 12.

    Child Under 16

  7. The second element requires the prosecution to prove that the complainant was under the age of 16 at the time the relevant act took place (Crimes Act 1958 s49B(1)).

    Statutory defences and exemption

    Medical or hygienic purposes

  8. A person does not commit the offence against s49B(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).

    Similarity in age

  9. Section 49V of the Crimes Act 1958 provides that it is a defence to an offence against section 49B(1) if, at the time of the conduct:
    1. A was not more than 2 years older than B; and
    2. B was 12 years of age or more; and
    3. B consented to the sexual penetration.
  10. In relation to this defence, the accused’s actual age must not exceed the child’s by more than 24 months. The availability of the defence is not determined by a measure limited to whole-years (Stannard v DPP (2010) 28 VR 84).
  11. To disprove this defence, the prosecution must rebut one or more limbs of section 49V. For information on the circumstances in which a person does not consent, see Consent and reasonable belief in consent.
  12. This defence does not involve a consideration of whether the accused had a reasonable belief in consent. Compare Sexual Penetration of a Child Under 16.

    Reasonable belief as to age

  13. Section 49W of the Crimes Act 1958 provides that it is a defence to an offence against section 49B(1) if, at the time of the conduct:
    1. B was 12 years of age or more; and
    2. A reasonably believed that B was 16 years of age or more.
  14. The accused bears the burden of proving, on the balance of probabilities, that he or she reasonably believed that B was 16 years of age or more (Crimes Act 1958 s49W(4)).
  15. The Note to section 49W states that:

    Whether or not A reasonably believed that B … was 16 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out [B’s] age.

  16. The Note also specifies that the accused has an evidential burden to establish that B was 12 years of age or more.
  17. Unlike the former s45, a reasonable belief in age is not used as a threshold requirement before consent is relevant. This means that the jury does not need to consider consent, or a reasonable belief in consent, as part of this belief in age defence.

Last updated: 1 July 2017

In This Section

7.3.11.1 – Charge: Sexual Penetration of a Child Under 16 (From 1/7/17)

7.3.11.2 – Checklist: Sexual Penetration of a Child Under 16 (From 1/7/17)

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

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

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

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

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

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

7.3.24 - Production of Child Abuse Material

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography