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

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Commencement Information

  1. Section 49F came into force on 1 July 2017.
  2. Prior to 1 July 2017, Crimes Act 1958 s47 contained a composite offence of an indecent act "with or in the presence of" a child under 16. Following the amendments introduced by the Crimes Amendment (Sexual Offences) Act 2016, the offence was split so that section 49D addresses sexual touching and section 49F addresses sexual activity in the presence of the child.
  3. For offences committed before 1 July 2017, see Indecent Act with a Child Under 16 (1/1/92 – 30/6/17).
  4. For offences involving sexual touching, see Sexual Assault of a child under 16 (From 1/7/17).

    Elements

  5. The elements of the offence are set out in s49F(1) of the Crimes Act 1958. The prosecution must prove that:
    1. The accused (A) intentionally engages in an activity;
    2. The activity is sexual;
    3. Another person (B) is present when A engages in the activity;
    4. A knows B is, or probably is, present when A engages in the activity;
    5. B is a child under the age of 16 years;
    6. Engaging in the activity in the presence of B is contrary to community standards of acceptable conduct.

    Intentional activity

  6. The first element that the prosecution must prove is that the accused intentionally engaged in an activity.
  7. The fault element for this element is basic or general intention. Where relevant, the prosecution must prove that the accused engaged in the activity intentionally in the sense that his or her conduct was deliberate rather than inadvertent or accidental.
  8. The Crimes Act 1958 does not provide a definition for the word "activity". Dictionary definitions of activity include:

    Activity is sexual

  9. The second element is that the activity is sexual (Crimes Act 1958 s49F(1)).
  10. Section 35D of the Act specifies that an activity may be sexual due to:

    (a) The area of the body that is involved in the region, including genital or anal region, buttocks, breasts;

    (b) The fact that the person engaging in the activity seeks or gets sexual arousal or gratification from the activity; or

    (c) Any other aspect of the activity, including the circumstances in which it is engaged in.

  11. Section 35D contains an example of a sexual activity: "A watches pornography in the presence of A’s daughter (B) and her friend (C)".[1]
  12. Section 49ZC(c) of the Crimes Act 1958 provides that an honest and reasonable mistaken belief that the activity is not sexual is not a defence.

    Presence of another person

  13. The third element is that another person, B, is present when A engages in the activity (Crimes Act 1958 s49F(1)).
  14. Section 49F(5) states that a person may be present:

    (a) in person; or

    (b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by B in real time or close to real time.

  15. Section 3 of the Electronic Transactions (Victoria) Act 2000 defines an "electronic communication" as:

    (a)     a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or

    (b)     a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system;

  16. According to the Explanatory Memorandum for the Crimes Amendment (Sexual Offences) Bill 2016, this provision allows the offence to apply "where A engages in sexual activity while communicating with B over the internet. This updates the offence to cover offending using new technologies".

    Knowledge of B’s presence

  17. The fourth element is that the accused knew that B was, or probably was, present when he or she engaged in the activity (Crimes Act 1958 s49F(1)).
  18. According to the Explanatory Memorandum for the Crimes Amendment (Sexual Offences) Bill 2016, this replaces the previous fault element of "wilful" in the former Crimes Act 1958 s47, which was a source of uncertainty.
  19. In relation to the former Crimes Act 1958 s47, it was thought that ‘wilful’ meant that the accused must have intended that the child be present at the time of the relevant act and that recklessness was not sufficient (R v Papamitrou (2004) 7 VR 375 at [43]).
  20. In contrast, Crimes Act 1958 s49G provides that recklessness, in the form of the accused knowing that it is probable that the child is present, is sufficient for this element.

    Child Under 16

  21. The fifth element requires the prosecution to prove that the complainant was under the age of 16 at the time the relevant activity took place (Crimes Act 1958 s49F(1)).

    Engaging in activity in presence of B contrary to community standards of acceptable conduct

  22. The sixth element is that engaging in the activity in the presence of the complainant is contrary to community standards of acceptable conduct (Crimes Act 1958 s49F(1)).
  23. Section 49F(3) of the Crimes Act 1958 provides that:

    Whether or not engaging in the activity in the presence of B is contrary to community standards of acceptable conduct depends on the circumstances

  24. The Act specifies that the circumstances include the purpose of the activity and whether the accused seeks or gets sexual arousal or gratification from engaging in the activity or from the presence of B. However, the circumstances do not include whether:
  25. Section 49ZC(c) of the Crimes Act 1958 provides that an honest and reasonable mistaken belief that engaging in the activity in the presence of the complainant was not contrary to community standards of acceptable conduct is not a defence.

    Statutory defences and exemption

    Similarity in age

  26. Section 49U of the Crimes Act 1958 provides that it is a defence to an offence against section 49F(1) if, at the time of the conduct:

    (a) A was not more than 2 years older than B; and

    (b) B was 12 years of age or more.

  27. 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).
  28. To disprove this defence, the prosecution must rebut one or more limbs of section 49V.
  29. This defence does not involve a consideration of whether the child consented or whether the accused had a reasonable belief that the child consented. Compare Sexual Penetration of a Child Under 16.

    Reasonable belief as to age

  30. Section 49W of the Crimes Act 1958 provides that it is a defence to an offence against section 49D(1) if, at the time of the conduct:

    (a) B was 12 years of age or more; and

    (b) A reasonably believed that B was 16 years of age or more.

  31. 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)).
  32. 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.

  33. The Note also specifies that the accused has an evidential burden to establish that B was 12 years of age or more.
  34. Unlike the former s47, 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.

    Extraterritorial conduct

  35. Subsections (6) and (7) of section 49F give the offence extraterritorial operation.
  36. Subsection (6) provides that some or all of the conduct constituting the offence can occur outside Victoria, provided B was in Victoria at the time of the conduct.
  37. Similarly, subsection (7) provides that some or all of the conduct constituting the offence can occur outside Victoria, provided A was in Victoria at the time of the conduct.

Last updated: 1 July 2017

Notes

[1] - See Interpretation of Legislation Act 1984 s36A on the interpretation and operation of examples.

In This Section

7.3.20.1 - Charge: Sexual Activity in Presence of Child under 16 (From 1/7/17)

7.3.20.2 – Checklist: Sexual Activity in Presence of 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)

7.3.11 - 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)

7.3.17 - 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)

7.3.21 - 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