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

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Operational Period

  1. Section 49C commenced on 1 July 2017, replacing the former offences specified in s48 of the Crimes Act 1958.
  2. For offences committed before 1 July 2017, see Sexual Penetration of a 16 or 17 Year Old Child.

    The Elements

  3. The elements of the offence are set out in s49C(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 aged 16 or 17 years; and
    3. B is under A’s care, supervision or authority

    Intentional sexual penetration

  4. The first element involves three permutations on B being involved in an act of sexual penetration (Crimes Act 1958 s49C).
  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 (From 1/7/17).

    Complainant’s age

  7. The second element requires the prosecution to prove that the complainant was aged 16 or 17 at the time the relevant act took place (Crimes Act 1958 s49C(1)).

    Care, supervision or authority

  8. The third element is that the complainant was under the accused’s care, supervision or authority.
  9. Section 37 of the Crimes Act 1958 provides a non-exhaustive list of relationships where a child is deemed to be under the care, supervision or authority of a person.
  10. The relationships listed are:

    (a) the child’s parent or step-parent;

    (b) the child's teacher;

    (c) the child's employer;

    (d) the child's youth worker;

    (e) the child's sports coach;

    (f) the child's counsellor;

    (g) the child's health professional;

    (h) a person with parental responsibility within the meaning of the Children, Youth and Families Act 2005 for the child;

    (i) a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to the child or has authority over the child;

    (j) an out of home carer within the meaning given by section 74 of the Children, Youth and Families Act 2005 of the child;

    (k) a police officer acting in the course of his or her duty in respect of the child;

    (k) a person employed in, or providing services in, a remand centre, youth residential centre, youth training centre or prison and acting in the course of his or her duty in respect of the child

  11. Section 37(2) provides that a parent includes a parent by adoption or a parent by operation of the Status of Children Act 1974, and that a step parent includes the spouse or domestic partner of the person’s parent.
  12. Judgments sometimes draw a distinction between a "standing relationship" and an "ad hoc" relationship for the purpose of care, supervision or authority. A "standing" relationship is one that has existed for some time, whereas an "ad hoc" relationship is one that comes into being on the day of the alleged offending.
  13. However, the language of standing relationships and ad hoc relationships must not be allowed to distract attention from the requirements of the Act, which does not use the word "relationship" (Lydgate v R (2014) 46 VR 78 at [98]).
  14. Instead, the question is whether the complainant is under the care, supervision or authority of the accused or, alternatively, is in one of the relationships listed in s37.
  15. Section 37 of the Crimes Act 1958 is a deeming provision. Where the jury finds that the accused falls within one of the listed categories, the jury should not be instructed to look beyond the listed relationships to determine whether there was a relationship of "care, supervision or authority" (Lydgate v R (2014) 46 VR 78 at [97]).
  16. The words "care, supervision or authority" are to be given their ordinary grammatical meaning (R v Howes (2000) 2 VR 141).
  17. The meaning of the words is a question for the jury. While a jury may be provided with the dictionary definitions of the words "care", "supervision" and "authority", the judge must make clear that these are not definitions prescribed by the Act (R v Howes (2000) 2 VR 141 at [57]; R v Little (2015) 45 VR 816 at [83]).
  18. For the purpose of providing dictionary definitions, the following definitions are likely to be most relevant:
  19. The words "care, supervision or authority" must be read disjunctively (R v Howes (2000) 2 VR 141; R v Little (2015) 45 VR 816 at [81]).
  20. These words extend to cover those who, by virtue of an established and ongoing relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of the relationship (R v Howes (2000) 2 VR 141 at [58]; R v Little (2015) 45 VR 816 at [84]).
  21. The relationship of care, supervision or authority does not need to be based on a legal right or power. While legal authority may create or help to create such a relationship, it is not essential (R v Howes (2000) 2 VR 141; R v Macfie [2000] VSCA 173. See also R v Little (2015) 45 VR 816 at [86]-[90]).
  22. The words therefore cover a person who has assumed de facto control, supervision or authority over a child, even if responsibility for that child has not been delegated to them by the person with legal responsibility for that child (R v Macfie [2000] VSCA 173).
  23. Care, supervision or authority may be vested in more than one person or authority at the same time (R v Macfie [2000] VSCA 173).
  24. Care, supervision or authority may change from time to time, depending on the circumstances (R v Macfie [2000] VSCA 173).
  25. It is not necessary that the occasion on which the penetration took place was connected with, or arose out of, the relationship of care, supervision or authority, or that the parties were acting in the capacities which gave rise to the relationship. Similarly, it is not necessary to show that the complainant’s consent to sexual penetration was influenced by the relationship of care, supervision or authority. It is sufficient if the jury is satisfied that there was a relationship of care, supervision or authority between the parties, and that that relationship existed on the day on which the penetration took place (R v Howes (2000) 2 VR 141 at [60]).
  26. In identifying what a jury should be told, Brooking JA in R v Howes (2000) 2 VR 141 at [58] said that:

    It is appropriate to tell them to consider the three words in the context in which they appear, that of creating a sexual offence. They may be told that what is often called the age of consent for acts of sexual penetration is fixed by the law at 16 as a general rule but that Parliament has chosen to give special protection by raising the age of consent by two years for the protection of 16 and 17 year old children against what Parliament has called, in a general statement of its purposes, "exploitation by persons in positions of care, supervision and authority"…. Juries may be told that the obvious purpose underlying the section is to protect 16 and 17 year olds from being taken advantage of by persons who are in a position to influence them. They may be told that the section is concerned to protect young people, and often, protect them from themselves. … I would prefer, with the Victorian Act, to say that the section is obviously concerned to protect 16 and 17 year olds against persons who occupy a position of responsibility towards them and that in considering the words "care, supervision and authority" juries should bear in mind the obvious underlying purpose of the section.

  27. Brooking JA also explained that instructing jurors about the purpose of the section may help a jury dealing with cases where there may be a technical relationship of supervision, but no reason to think that Parliament intended that a complainant in such a relationship needed to be protected from people who occupy that position of responsibility (see R v Howes (2000) 2 VR 141 at [59] for examples).
  28. In deciding whether a relationship of care, supervision or authority exists, it may be relevant to consider that the parties were previously in a relationship prescribed by s37. While the prosecution cannot rely solely on the existence of a former prescribed relationship, the former relationship, along with other evidence, may provide a basis for a jury to find that there was an relationship of care, supervision or authority at the time of the alleged offence (Lydgate v R (2014) 46 VR 78 at [103]).
  29. In determining whether the former prescribed relationship is relevant to the existence of a current care, supervision or authority relationship, it may be important to consider the length of time between the former prescribed relationship ending and the alleged commission of the offence. This is because the period of time may rationally affect the probability that the complainant was under the accused’s care, supervision or authority at the time of the alleged offence (Lydgate v R (2014) 46 VR 78 at [104]; Lydgate v R (No 2) [2016] VSCA 33).

    Statutory defences and exemption

    Medical or hygienic purposes

  30. A person does not commit the offence against s49C(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).

    Reasonable belief as to age

  31. Section 49X of the Crimes Act 1958 provides that it is a defence to an offence against section 49C(1) if, at the time of the conduct, the accused reasonably believed that the child was 18 years of age or more (Crimes Act 1958 s49X(1)).
  32. The accused bears the burden of proving, on the balance of probabilities, that he or she reasonably believed that B was 18 years of age or more (Crimes Act 1958 s49X(4)).
  33. The Note to section 49X states that:

    Whether or not A reasonably believed that B … was 18 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out [B’s] age.

    Marriage or domestic partnership

  34. Section 49Y of the Crimes Act 1958 provides an exception to the offence in s49C(1). This exception applies if, at the time of the alleged offence –

    (i) A and B are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

    (ii) A-

    (a) is not more than 5 years older than B; and

    (b) is B’s domestic partner and the domestic partnership commenced before B came under A’s care, supervision or authority.

  35. For more information on the meaning of the term "domestic partnership", see Incest.

    Reasonable belief as to marriage or domestic partnership

  36. Section 49Z of the Crimes Act 1958 provides a defence to the offence in s49C(1) which applies if, at the time of the alleged offence –

    (i) A reasonably believed that A and B are married to each other and that the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

    (ii) A-

    (a) was not more than 5 years older than B; and

    (b) reasonably believed that A was B’s domestic partner and that the domestic partnership commenced before B came under A’s care, supervision or authority.

  37. The accused bears the burden of proving, on the balance of probabilities, the reasonable belief referred to in the section (Crimes Act 1958 s49Z(3)).
  38. The Note to the section specifies that the accused has an evidential burden in relation to the relative ages of the accused and the complainant.

    Reasonable belief as to care, supervision or authority

  39. Section 49ZA provides a defence to a charge under s49C(1) that applies if, at the time of the conduct constituting the offence, the accused reasonably believed that the complainant was not under his or her care, supervision or authority.
  40. The accused bears the burden of proving, on the balance of probabilities, that he or she held this reasonable belief (Crimes Act 1958 s49ZA(3)).
  41. This is a new defence, as the law did not previously require the prosecution to prove that A knew or believed that B was under his or her care, supervision or authority. Instead, the law required the prosecution to show only that A was aware of the primary facts which gave rise to the relevant relationship (compare Lydgate v R (2014) 46 VR 78 at [113] per Beach JA).

Last updated: 1 July 2017

In This Section

7.3.13.1 - Charge: Sexual penetration of a 16 or 17 year old child (From 1/7/17)

7.3.13.2 – Checklist: Sexual Penetration of a 16 or 17 year old child (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)

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

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

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