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

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I must now direct you about the crime of sexual penetration of a child under the age of 16. 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 16 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 s49B(1)(a)(i). This direction on the first element must be modified if the prosecution relies on other limbs of s49B(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 participation, 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 16

The second element relates to the age of the complainant, NOC. The prosecution must prove that s/he was under the age of 16 when the alleged act of sexual penetration took place.

In this case, there is no dispute that NOC was under 16 at that time. The main issue in this case is [insert relevant issue].[3]

Statutory defences and exclusions

Similarity in age

[If the accused relies on the similarity in age defence in Crimes Act 1958 s49V, add the following shaded section]

For this offence, the law recognises a defence which may be termed "similarity in age". There are three parts to this defence.

First, the accused must be no more than 2 years older than the complainant. In this case, that requirement is met.

Second, the complainant must have been 12 years old or more at the time of the alleged conduct. Again, this requirement is met in this case.[4]

Third, the complainant must have consented to the sexual penetration. It is this part of the defence which is in dispute.

As I told you at the start of the trial, the prosecution must prove the accused’s guilt. This means the prosecution must prove that the defence does not apply. In other words, the prosecution must prove that NOC did not consent to the sexual penetration.

Consent is a state of mind. The law says that consent means free agreement. So the prosecution must prove that NOC did not freely agree to being sexually penetrated by NOA at the time.

[Where a party requests a direction about the meaning of consent, add one or more of the following shaded paragraphs]

The law says that a person can consent to an act only if they are capable of consenting, and free to choose whether or not to engage in or to allow the act.

The law says that where a person has given their consent to an act, they may withdraw that consent before the act happens or at any time while it is happening.

[Where a party requests a direction about the circumstances in which a person is taken not to have consented, add the following shaded section]

The law specifies some circumstances in which a person does not freely agree, or consent, to sexual penetration. These circumstances include where [insert relevant section(s) from the following and apply to the evidence:

a. the person submits to the act because of force or the fear of force, whether to that person or someone else;

b. the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;

c. the person submits to the act because the person is unlawfully detained;

d. the person is asleep or unconscious;

e. the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

f. the person is incapable of understanding the sexual nature of the act;

g. the person is mistaken about the sexual nature of the act;

h. the person is mistaken about the identity of any other person involved in the act;

i. the person mistakenly believes that the act is for medical or hygienic purposes;

j. if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;

k. the person does not say or do anything to indicate consent to the act;

l. having initially given consent to the act, the person later withdraws consent to the act taking place or continuing]

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC at the time [describe relevant act], you must find that s/he was not consenting.

However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.

[Where a party requests a direction about the lack of physical injury, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows that there are many different circumstances in which a person does not consent to sexual penetration. Experience also shows that just because a person is not physically injured, subjected to violence or threatened with physical injury or violence does not mean that they consented.

[When a party requests a direction about the lack of protest or physical resistance, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows that people react in different ways to a non-consensual sexual act. There is no typical, proper or normal response. Experience shows that just because a person did not protest or resist does not mean that they consented. For example, a person might freeze and not say or do anything, even though they are not consenting.

[When a party requests a direction on the relevance of past consensual sex, add the following shaded section.]

When you are assessing the evidence, it is important to know that experience shows just because a person has consented to sexual activity with a person on one occasion does not mean that they consented to sexual activity with that person on another occasion.[5]

In this case, [insert evidence and competing arguments relevant to proof that the complainant was not consenting].

It is important that you remember that it is not for the accused to prove to you that the complainant consented. Unless the prosecution proves, beyond reasonable doubt, that the complainant did not consent, you must find the accused not guilty of this offence.

Belief in age

[If the accused relies on the belief in age defence in Crimes Act 1958 s49W, add the following shaded section]

The law states that a person does not commit this offence if, at the time s/he sexually penetrated NOC, s/he reasonably believed that the accused was aged 16 years or more. There are two parts to this defence.

First, at the time of the conduct, NOC must have been aged 12 or more. There is no issue in this case that NOC was aged 12 or more at the time of the conduct.[6]

Second, NOA must have reasonably believed that NOC was aged 16 or more. It is a matter for you to decide whether NOA held this belief, and whether it was reasonable. As part of deciding this issue, you should consider what steps NOA took to find out NOC’s age.

Unlike the elements of the offence, this is a matter which the accused must prove. It is an exception to the general rule that the prosecution must prove all matters. However, the accused only need to prove that s/he reasonably believed that NOC was aged 16 or more on the balance of probabilities. In other words, s/he must show that it is more likely than not that s/he believed that NOC was aged 16 or more and that this belief was reasonable. Unlike the prosecution, s/he does not need to prove these matters beyond reasonable doubt.

[Identify relevant evidence and arguments]

Consent not a defence

To protect children under the age of 16, 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.[7]

Summary

To summarise, before you can find NOA guilty of sexual penetration of a child under the age of 16, 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 16.

Last updated: 1 July 2017

Notes

[1] - This statement of the element must be modified if the prosecution relies on the other limbs of s49B(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.

[4] - This part of the direction must be modified if the age of the complainant is in issue. If this part of the defence is in issue, the judge must explain that the prosecution can rebut the defence by disproving any of the three components of the defence.

[5] - This direction may be modified to include reference to different forms of sexual activity, or sexual activity with different people, if appropriate in the circumstances of the case. See Jury Directions Act 2015 s46(3)(e).

[6] - If the age of the child is in dispute, then this direction must be modified. The prosecution bears the onus of rebutting this threshold requirement, once the accused has satisfied the evidential burden.

[7] - This part of the direction must be omitted if the similarity in age defence is relevant.

See Also

7.3.11 - 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)