Have you been Charged with Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity?

What does it mean to be charged with encouraging a child under the age of 16 to engage in, or be involved in, sexual activity?

Section 49K of the Crimes Act 1958 (“CA”) establishes the criminal offence of encouraging a child under the age of 16 to engage in sexual activity. This provision targets individuals aged 18 or older who intentionally encourage minors to participate in sexual activities for the purpose of sexual arousal or gratification.

The offence encompasses various forms of encouragement, including in-person interactions and electronic communications, and imposes a maximum penalty of 10 years’ imprisonment for offenders. Notably, the law does not require proof that the child engaged in the encouraged activity or that the offender was present during such activities. This section aims to enhance the protection of minors from sexual exploitation and ensure accountability for adults who seek to manipulate or exploit children in this manner.

The alleged encouragements need not even be in person but can also be via electronic communication – for example over Facebook or by text message.

What does the prosecution have to prove?

To secure a conviction under Section 49K, the prosecution must prove the following elements:

1. The defendant (A) is 18 years of age or older.
2. ‘A’ encouraged another person (B) to engage in or be involved in a sexual activity.
3. The activity encouraged was sexual in nature.
4. The person (B) is a child under the age of 16 years at the time of the encouragement.
5. ‘A’ sought or obtained sexual arousal or gratification from either the encouragement or the sexual activity that was encouraged.

What does it mean to be charged with Encouraging a Child Aged 16 or 17 Under Care, Supervision, or Authority to Engage in Sexual Activity?

Section 49L of the CA criminalises the act of encouraging a child aged 16 or 17, who is under the care, supervision, or authority of an adult (aged 18 or older), to engage in sexual activity. This provision addresses the exploitation of vulnerable minors by individuals in positions of trust or authority, emphasising the seriousness of such conduct. The offence includes encouraging sexual activity either in person or through electronic communication and carries a maximum penalty of five years’ imprisonment. Importantly, the law does not require proof that the minor engaged in the encouraged activity or that the adult was present during the activity. By targeting this type of encouragement, Section 49L aims to provide greater protection for young people in vulnerable situations and to hold accountable those who seek to manipulate or exploit them for sexual gratification.

What must the prosecution prove?

To establish a case under Section 49L, the prosecution must demonstrate the following elements:

1. The defendant (A) is 18 years of age or older.
2. ‘A’ encouraged another person (B) to engage in or be involved in a sexual activity.
3. The activity encouraged was sexual in nature.
4. The person (B) is aged 16 or 17 years and is under the care, supervision, or authority of ‘A’.
5. ‘A’ sought or obtained sexual arousal or gratification from either the encouragement or the sexual activity that was encouraged.

Penalties for Encouraging a Child Under the Age of 16 to Engage in Sexual Activity:

Level 5 imprisonment for a maximum term of 10 years.

What does Encourage mean in a Sexual Nature?

It is crucial to understand that “encourage” encompasses a range of actions, including:

• Suggesting sexual activity.
• Requesting sexual activity.
• Urging sexual activity.
• Demanding sexual activity.

The law does not require that the accused be involved in the sexual activity; simply encouraging it is sufficient for a potential offence.

Penalties for Encouraging a Child Aged 16 or 17 Under Care, Supervision, or Authority to Engage in Sexual Activity

Level 6 imprisonment for a maximum term of 5 years.

Where will my case be heard?

Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity’ cases and encouraging a child aged 16 or 17 under care, supervision, or authority to engage in sexual activity can ONLY be heard in the County Court of Supreme Court of Victoria.

Factors and Defences to consider for s49K:

It is a defence to a charge under section 49K(1) if the accused (A) can demonstrate that, at the time of the conduct constituting the offence, they reasonably believed that the alleged victim (B) was 16 years of age or older.

A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence

Factors ad Defences to consider for s49L:

For offences under sections 49L(1), it is a defence if the accused (A) can show that, at the time of the conduct constituting the offence, they reasonably believed that the person (B) involved was 18 years of age or older.

And/or

Under sections 49L(1), it is a defence to a charge if, at the time of the conduct constituting the offence, one of the following applies:

1. The accused (A) reasonably believed that they and the other person (B) were married to each other, and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth.

2. The accused (A):

1. • • (i) Was not more than 5 years older than ‘B’; and
     • (ii) Reasonably believed that they were ‘B’s’ domestic partner, and that the domestic partnership commenced before ‘B’ came under ‘A’s’ care, supervision, or authority.

And/or

Under sections 49L(1), it is a defence to a charge if, at the time of the conduct constituting the offence, the accused (A) reasonably believed that the other person (B) was not under their care, supervision, or authority.

In all the above scenarios, the burden of proof (balance of probabilities) lays with ‘A’ (the accused).

Other factors to consider:

• Did you encourage a child aged 16 or 17 under your care, supervision or authority to engage in, or be involved in, sexual activity?
• Did you reasonably believe the child was over the age of 18?
• What steps did you take to ensure this?
• Were you in a relationship with the child?

Given the severity of these charges, speak to a criminal defence lawyer today for an individualised tailored defence strategy that could serve you.

Sex Offences Charges

• Offence to Perform Female Genital Mutilation
• Intention of Having Prohibited Female Genital Mutilation Performed
• Sexual Activity with the Corpse of Human Being
• Rape or Rape by Compelled Penetration
• Sexual Assault
• Sexual Assault by Compelling Sexual Touching
• Assault with Intent to Commit a Sexual Offence
• Threat to Commit a Sexual Offence
• Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
• Administration of an Intoxicating Substance for a Sexual Purpose
• Failing to Comply with Sex Offender Reporting
• Abduction or Detention for a Sexual Purpose
• Furnishing False or Misleading Information
• Indecent Act with a Child Under the Age of 16
• Sexual Activity Directed at Another Person
• Sexual Penetration of a Child Under the Age of 12
• Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
• Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
• Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
• Persistent Sexual Abuse of a Child Under the Age of 16
• Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
• Grooming for Sexual Conduct with a Child under the Age of 16
• Loitering Near Schools Etc by a Sexual Offender
• Failure by a Person in Authority to Protect a Child from a Sexual Offence

• Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
• Causing or Allowing a Sexual Performance Involving a Child
• Inciting or Offering a Sexual Performance Involving a Child
• Facilitating a Sexual Offence Against a Child
• Sexual Penetration of a Child or Lineal Descendent
• Sexual Penetration of a Stepchild
• Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
• Sexual Penetration of a Sibling or Half-Sibling
• Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
• Child in the Production of Child Abuse Material
• Distributing Child Abuse Material
• Administering a Website Used to Deal With Child Abuse Material
• Accessing Child Abuse Material
• Assisting a Person to Avoid Apprehension
• Sexual Assault of a Person with Cognitive Impairment or Mental Illness
• Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
• Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
• Aggravated Sexual Servitude
• Deceptive Recruiting for Commercial Sexual Services
• Bestiality
• Child Stealing
• Bigamy
• Abortion Performed by Unqualified Person
• Concealing the Birth of a Child

What happens next?

If you have been charged with encouraging a child under the age of 16 to engage in or be involved in, sexual activity, or encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity, your immediate next step is to contact MK Law to schedule an initial consultation with their experienced legal team. During this meeting, you will have the opportunity to discuss the specifics of your case in detail, allowing the lawyers to evaluate your situation comprehensively and provide you with preliminary advice tailored to your circumstances.

MK Law will meticulously review all relevant information and may request additional evidence or documentation to strengthen your defence. Throughout the legal process, they will keep you informed, offering ongoing legal guidance and preparing you for any necessary court appearances. When your case goes to trial, MK Law will represent you, working diligently to advocate for the best possible outcome on your behalf. To begin, reach out to MK Law by calling 1800 130 120 or visiting their website to arrange your consultation.