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

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Commencement Information

  1. The current s49E offence came into force on 1 July 2017.
  2. Prior to 1 July 2017, Crimes Act 1958 s49 contained a composite offence of an indecent act "with or in the presence of" a child aged 16 or 17. Following the amendments introduced by the Crimes Amendment (Sexual Offences) Act 2016, the offence was split so that section 49E addresses sexual touching and section 49G addresses sexual activity in the presence of the child.
  3. For offences committed before 1 July 2017, see Indecent Act with a 16 or 17 year old Child.
  4. For offences involving sexual activity in the presence of a child, see Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17).

    Elements

  5. The elements of the offence are set out in s49E(1) of the Crimes Act 1958. The prosecution must prove that:
    1. The accused (A) intentionally:
      1. touched another person (B);
      2. caused or allowed B to touch A; or
      3. caused B to touch or to continue to touch themselves, another person (C) or to be touched, or to continue to be touched, by C;
    2. B was a child aged 16 or 17 years;
    3. B was under the accused’s care, supervision or authority;
    4. The touching was sexual;
    5. The touching was contrary to community standards of acceptable conduct.

    Intentional touching

  6. The first element that the prosecution must prove is that the accused intentionally touched another person, or caused the other person to touch someone. The term "touching" is defined in Crimes Act 1958 s35B as touching that may be done:

    (a) with any part of the body; or

    (b) with anything else; or

    (c) through anything, including anything worn by the person doing the touching or by the person touched.

  7. This element may also be proved where the accused causes another person to touch the complainant (Crimes Act 1958 s49E(1)).
  8. The fault element for this element is basic or general intention. Where relevant, the prosecution must prove that the touching was intentional in the sense that it was deliberate rather than inadvertent or accidental.
  9. For more information on this element, see Sexual Assault.

    Child aged 16 or 17

  10. 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 s49E(1)).

    Care, supervision or authority

  11. The third element the prosecution must prove is that the complainant was under the care, supervision or authority of the accused (Crimes Act 1958 s49E(1)).
  12. For information on when a relationship of care, supervision or authority will exist, see Sexual penetration of a 16 or 17 Year Old Child (From 1/7/17).

    Sexual Touching

  13. The fourth element requires the prosecution to prove that the touching was sexual (Crimes Act 1958 s49E(1)).
  14. Touching can be "sexual" because of:

    (a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

    (b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

    (c) any other aspect of the touching, including the circumstances in which it is done (Crimes Act 1958 s35B(2)).

  15. For more information on this element, see Sexual Assault.

    Touching contrary to community standards of acceptable conduct

  16. The fifth element is that the touching is contrary to community standards of acceptable conduct (Crimes Act 1958 s49E(1)).
  17. Section 49E(3) of the Crimes Act 1958 provides that:

    Whether or not the touching is contrary to community standards of acceptable conduct depends on the circumstances.

  18. The Act specifies that the circumstances include the purpose of the touching and whether the accused seeks or gets sexual arousal or gratification from the touching. However, the circumstances do not include whether the complainant consented to the touching or whether the accused believed the complainant consented to the touching (Crimes Act 1958 s49E(4)).

    Statutory defences and exemption

    Marriage or domestic partnership

  19. Section 49Y of the Crimes Act 1958 provides an exception to the offence in s49E(1). This exception applies if, at the time of the alleged offence –

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

    (b) A-

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

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

    Reasonable belief as to age

  20. Section 49X of the Crimes Act 1958 provides that it is a defence to an offence against section 49E(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))
  21. 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)).
  22. 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.

    Reasonable belief as to marriage or domestic partnership

  23. Section 49Z of the Crimes Act 1958 provides a defence to the offence in s49E(1) which applies if, at the time of the alleged offence –

    (a) 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

    (b) A-

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

    (ii) 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.

  24. 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)).
  25. 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

  26. Section 49ZA provides a defence to a charge under s49E(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.
  27. 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)).
  28. 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).

    Honest and reasonable mistake not a defence in some circumstances

  29. Section 49ZC(2) of the Crimes Act 1958 provides that an honest and reasonable mistaken belief that the touching was not sexual or was not contrary to community standards of acceptable conduct is not a defence.
  30. The combined effect of sections 49E(4) and 49ZC(2) is that while the accused’s beliefs can make a touching sexual or contrary to community standards, the accused’s beliefs cannot operate to excuse otherwise prohibited conduct.

Last updated: 1 July 2017

In This Section

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

7.3.17.2 – Checklist: Sexual Assault of a child aged 16 or 17 under care, supervision or authority (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)

7.3.13 - 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)

7.3.18 - 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