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7.3.15.1 - Charge: Sexual Assault of a Child Under 16 (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 assault of a child under 16. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused intentionally touched another person, NOC.[1]

Two - NOC was under the age of 16 years.

Three – The touching was sexual.

Four – The touching was contrary to community standards of acceptable conduct.

I will now explain each of these elements in more detail

Actions of the accused

Warning! This charge is designed for cases where the prosecution relies on s49D(1)(a)(i). This direction on the first element must be modified if the prosecution relies on other limbs of s49D(1)(a).

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that NOA intentionally touched NOC.

[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 touching] 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 touched the outside of NOC’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the touching"].

In this case the prosecution alleged that NOA [insert evidence about the relevant act]. The defence responded [insert relevant evidence and/or arguments].

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 touching occurred.

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]

Sexual touching

The third element that the prosecution must prove is that the alleged act of touching was sexual.

The law says that touching can be sexual because of the area of the body involved, of either the person being touched or the person doing the touching, such as the genital or anal area, or the buttocks or breasts.

Or the touching can be sexual because the person doing the touching wants to get or gets sexual gratification from the touching.

Finally, any other aspect of the touching, including the circumstances in which it happened, can also make the touching sexual.

The question of whether or not the touching was sexual is for you to decide.

In this case, the prosecution alleged that the touching was sexual because [insert evidence and arguments]. [If relevant add: The defence responded [insert evidence and arguments]].

For this element to be met, you must be satisfied, beyond reasonable doubt, that NOA’s touching of NOC was sexual.

Contrary to community standards of acceptable conduct

The fourth element that the prosecution must prove is that the alleged touching was contrary to community standards of acceptable conduct.

The law says that whether touching is contrary to community standards depends on the circumstances, and that this includes the purpose of the touching and whether NOA seeks or gets sexual arousal or sexual gratification from the touching.

The law also says that whether NOC consented to the touching and whether NOA believed that NOC consented to the touching are not relevant to whether the touching was contrary to community standards.

[Refer to relevant prosecution and defence evidence and arguments].

Defences

Similarity in Age

[If the accused relies on the similarity in age defence in Crimes Act 1958 s49U, add the following shaded section]

For this offence, the law recognises a defence which may be termed "similarity in age". There are two 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.[4]

Second, the complainant must have been 12 years old or more at the time of the alleged conduct. 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 at the time of the alleged conduct, NOC was not aged 12 years or older. In other words, the prosecution must prove that at the time of the touching, NOC was aged 11 years or younger.

[Refer to relevant prosecution and defence evidence and arguments].

Reasonable 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 the accused does not commit this offence if, at the time s/he touched NOC, the accused reasonably believed that NOC was aged 16 years or more. There are two parts to this defence.

First, at the time of the conduct, NOC was aged 12 or more. There is no issue in this case that NOC was aged 12 or more at the time of the conduct.[5]

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 NOC was aged 16 or more and this belief was reasonable. Unlike the prosecution, s/he does not need to prove this matter 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 touched by NOA.

Summary

To summarise, before you can find NOA guilty of sexual assault 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 assault 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 s49D(1)(a). The words “touched the complainant” may be replaced with “caused or allowed the complainant to touch the accused” or “caused the complainant to touch himself / herself” or “caused the complainant to touch another person” or “caused the complainant to be touched 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] - If the prosecution contests this matter, then the charge will need to be modified accordingly.

[5] - 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.

See Also

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

7.3.15.2 – Checklist: Sexual Assault of a Child under 16 (From 1/7/17)