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7.3.21.2 – Checklist: Sexual Activity in presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

Click here to obtain a Word version of this document for adaptation.

Seven elements the prosecution must prove beyond reasonable doubt:

1. The accused intentionally engaged in an activity; and

2. The activity was sexual; and

3. The complainant was present during that activity; and

4. The accused knew that the complainant was or probably was present during that activity; and

5. The complainant was under the age of 16; and

6. The complainant was under the accused’s care, supervision or authority; and

7. Engaging in the activity in the presence of the complainant was contrary to community standards of acceptable conduct.

Intentional activity

1. Did the accused intentionally [identify relevant activity]?

If Yes then go to 2

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Sexual activity

2. Is [identify relevant activity] a sexual activity?

Consider – An activity may be sexual because of the area of body involved, the fact that the person doing it seeks or gets sexual arousal or gratification from the activity, or any other reason.

If Yes then go to 3

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Presence of complainant

3. Was NOC present when NOA [identify relevant activity]?

If Yes then go to 4

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Accused knew that complainant present

4. Did NOA know that NOC was or probably was present when s/he [identify relevant activity]?

If Yes then go to 5

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Complainant under the age of 16

5. At the time of the act, was NOC under the age of 16?

If Yes then go to 6

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Care, supervision or authority

6. At the time of the activity, was NOC under NOA’s care, supervision or authority?

If Yes then go to 7

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Contrary to community standards of acceptable conduct

7. Is it contrary to community standards of acceptable conduct for NOA to [identify relevant activity] in the presence of NOC?

Consider – Relevant matters include the purpose of the activity and whether the accused was seeking or got sexual arousal or gratification from engaging in the activity in the presence of the complainant

Consider – Whether NOC consented to being present or the activity or whether NOA believed NOC consented to being present or the activity is not relevant to this element

If Yes then the accused is guilty of Sexual Activity in presence of a child aged 16 or 17 (as long as you also answered Yes to Questions 1, 2, 3, 4, 5 and 6)

If No, then the accused is not guilty of Sexual Activity in presence of a child aged 16 or 17

Last updated: 1 July 2017

See Also

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.21.1 - Charge: Sexual Activity in presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)