Have you been Charged with Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority?

What does it mean to be Charged with Sexual Activity in the Presence of a Child Under the Age 16?

Section 49F of the Crimes Act 1958 (“CA”) aims to protect children under the age of 16 from exposure to sexual activities that may be deemed inappropriate or harmful. It addresses the intentional engagement in sexual activities in the presence of a child, considering the potential psychological and emotional impact on the child.

What does the prosecution have to prove?

For a successful prosecution under Section 49F of the CA, the following elements must be established beyond a reasonable doubt:

1. The accused (Person A) must have intentionally engaged in a sexual activity.

This implies that the conduct was deliberate and not accidental.

2. The activity in question must be sexual in nature.

3. Another individual (Person B) must be present during the sexual activity.

It must be proven that B is indeed present at the time the conduct occurs.

4. The accused must have known or reasonably believed that Person ‘B’ was present during the conduct.

The prosecution needs to show that ‘A’ was aware, or likely aware, of the child’s presence.

5. The prosecution must establish that Person ‘B’ is a child under the age of 16

6. It must be proven that engaging in the activity in the presence of Person B is contrary to community standards of acceptable conduct.

What does it mean to be charged with Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision, or Authority:

Section 49G is designed to safeguard young individuals aged 16 or 17 who are under the care, supervision, or authority of an adult (A). This provision acknowledges the vulnerability of these youths in positions where an adult has significant influence or control over their lives.

After the implementation of the Electronic Transactions (Victoria) Act 2000, ‘presence’ also includes using an electronic means to transmit images of sexual activity in real time or close to real time – so for example through Facetime or Skype. 

What does the prosecution have to prove?

To secure a conviction under Section 49G of the CA, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused (Person A) must have intentionally engaged in a sexual activity.

This means that the conduct was deliberate and not accidental.

2. The activity in question must be sexual in nature.

3. Another person (Person B) must be present when Person A engages in the sexual activity.

4. The accused must have known or reasonably believed that Person ‘B’ was present during the sexual conduct.

The prosecution needs to show that ‘A’ was aware, or likely aware, of ‘B’s’ presence.

5. The prosecution must establish that Person ‘B’ is a child aged 16 or 17 years.

6. It must be proven that Person ‘B’ was under the care, supervision, or authority of Person ‘A’ at the time of the conduct.

This could involve evidence showing the relationship between ‘A’ and ‘B’, indicating that ‘A’ held a position of responsibility over ‘B’.

7. The prosecution must show that engaging in the activity in the presence of Person ‘B’ is contrary to community standards of acceptable conduct.

Penalties for Sexual Activity in the Presence of a Child Under the Age of 16:

A person convicted of an offence under this section is liable to a maximum of level 5 imprisonment, which carries a maximum sentence of 10 years.

The standard sentence for an offence against this section is 4 years.

Penalties for Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision, or Authority:

A person convicted of an offence under this section is liable to a maximum of level 6 imprisonment, which carries a maximum sentence of 5 years.

The standard sentence for an offence against this section is not explicitly stated in the provided text but follows the guidelines set out for level 6 offences.

Where will my case be heard?

Sexual activity in the presence of a child under the age of 16 or Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision, or Authority cases can ONLY be heard in the County Court or Supreme Court of Victoria.

Factors and Defences to consider for s49F:

A defendant (A) may raise a defence against a charge related to an offence under section 49F(1) if, at the time the conduct occurred:

(a) The other person (B) was at least 12 years old; and

(b) A had a reasonable belief that B was at least 16 years old.

A mistaken but honest and reasonable belief that the activity was not sexual or that engaging in the activity in the presence of ‘B’ was not contrary to community standards of acceptable conduct is not a defence to this offence

Factors and Defences to consider for s49G:

A defendant (A) may assert a defence against a charge related to an offence under section 49G(1) if, at the time of the conduct in question, ‘A’ reasonably believed that the other person (B) was at least 18 years old.

And/or

It is a valid defence to a charge for an offence under sections 49G(1) if, at the time of the conduct constituting the offence:

(a) the defendant (A) reasonably believed that they and the other person (B) were married, and that this marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) the defendant (A):

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

               (ii) reasonably believed that they were ‘B’s’ domestic partner, and that this domestic partnership began before ‘B’ came under ‘A’s’ care, supervision, or authority.

And/or

It is a valid defence to a charge for an offence under sections 49G(1) if, at the time of the conduct constituting the offence, the defendant (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:

• Were you engaging in what was considered sexual activity in the presence of a child under the age of 16?
• Were you aware of the real age of the child involved?
• What steps did you take to ascertain the age of the child?
• What is the age gap between you and the child?
• Do you have any other defences?

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 Sexual activity in the presence of a Child Under the Age of 16 or Sexual activity in the presence of a Child Aged 16 or 17 Under Care, Supervision, or Authority, 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.