7.3.12.2 - Checklist: Sexual penetration of a child under the age of 16 - Consent not in issue (From 17/3/10)

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[Note: This checklist includes two aggravating circumstances which are mutually exclusive. If both circumstances are alleged in a single case because of uncertainty about the date of offending, the numbering and instructions of the aggravating circumstances should be changed]

The Elements

Three elements the prosecution must prove beyond reasonable doubt:

1. The accused took part in an act of sexual penetration with the complainant; and

2. The accused intended to take part in that act of sexual penetration; and

3. The complainant was under the age of 16 at the time that the act of sexual penetration took place.

Accused’s Acts

1. Did the accused take part in an act of sexual penetration with the complainant?

If Yes, then go to 2

If No, then the accused is not guilty of sexual penetration of a child under 16

Accused’s Intention

2. Did the accused intend to take part in that act of sexual penetration with the complainant?

If Yes, then go to 3

If No, then the accused is not guilty of sexual penetration of a child under 16

The Complainant’s Age

3. Was the complainant under the age of 16 at the time that the act of sexual penetration took place?

If Yes, then the accused is guilty of sexual penetration of a child under 16 (as long as you have also answered yes to questions 1 and 2). Go to aggravating circumstances.

If No, then the accused is not guilty of sexual penetration of a child under 16

Aggravating Circumstances

[If it is alleged in the presentment that the complainant was under the age of 12 at the time of the offence, add the following section.]

4. Was the complainant under the age of 12 at the time that the act of sexual penetration took place?

If Yes, then you are satisfied the child was under 12

If No, then you are not satisfied the child was under 12

[If it is alleged in the presentment that the complainant was between the ages of 12 and 16 at the time of the offence, and was under care, supervision or authority of the accused, add the following section.]

4. Was the complainant between the ages of 12 and 16 at the time that the act of sexual penetration took place?

If Yes, then go to 5

If No, then you are not satisfied the child was between 12 and 16 and under the accused’s care, supervision and authority

5. Was the complainant under the care, supervision or authority of the accused at the time that the act of sexual penetration took place?

If Yes, then you are satisfied the child was between 12 and 16 and under the accused’s care, supervision and authority

If No, then you are not satisfied the child was between 12 and 16 and under the accused’s care, supervision and authority

Last updated: 19 September 2019

See Also

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

7.3.12.1 - Charge: Sexual Penetration of a Child Under 16 (From 17/3/10) - Consent Not in Issue

7.3.12.3 - Charge: Sexual Penetration of a Child Under 16 (Pre-17/3/10) - Consent Not in issue

7.3.12.4 - Checklist: Sexual penetration of a child under the age of 16 - Consent not in issue (Pre-17/3/10)

7.3.12.5 – Charge: Sexual Penetration of a Child Under 16 (From 1/7/15) - Consent in issue

7.3.12.6 - Charge: Sexual Penetration of a Child under 16 (17/3/10 – 30/6/15) - Consent in issue

7.3.12.7 - Checklist: Sexual penetration of a child under 16 (From 17/3/10) - Consent in issue

7.3.12.8 - Charge: Sexual Penetration of a Child Under 16 (1/12/06 – 16/3/10) - Consent in issue

7.3.12.9 - Charge: Sexual penetration of a Child Under 16 (Pre-1/12/06) - Consent in Issue

7.3.12.10 - Checklist: Sexual penetration of a child under the age of 16 (Pre-17/3/10) - Consent in issue