Have you been Charged with Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority?

What does it mean to be charged with Sexual Assault of a Child Under the Age of 16?

Under section 49D of the Crimes Act 1958 (“CA”), a person (referred to as “A”) can be charged with sexual assault if they intentionally engage in sexual touching of another person (referred to as “B”) who is under the age of 16.

The charge may also arise if ‘A’ causes or allows ‘B’ to touch themselves or another person in a sexual manner. Importantly, the touching must be deemed sexual and contrary to community standards of acceptable conduct.

What does the prosecution have to prove?

To secure a conviction under section 49D, the prosecution must prove the following elements:

1. ‘A’ must have intentionally touched ‘B’ or caused ‘B’ to touch themselves or another person.
2. ‘B’ must be under the age of 16 at the time of the incident.
3. The touching must be sexual in nature and must contravene community standards of acceptable conduct.

What does it mean to be charged with Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority?

Section 49E addresses sexual assault where the victim (B) is aged 16 or 17 and is under the care, supervision, or authority of the accused (A). Like section 49D, the offence involves intentional sexual touching, and the prosecution must demonstrate that the touching is sexual and contrary to community standards.

What does the prosecution have to prove?

To secure a conviction under section 49E, the prosecution must prove:

1. ‘A’ must have intentionally touched ‘B’ or caused ‘B’ to touch themselves or another person.
2. ‘B’ must be aged 16 or 17 and under ‘A’s’ care, supervision, or authority.
3. The touching must be sexual and contrary to community standards of acceptable conduct.

Penalties for Sexual Assault of a Child Under the Age of 16:

Maximum Penalty: Level 5 imprisonment, up to 10 years.

Standard Sentence: 4 years.

Penalties for Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority:

Maximum Penalty: Level 6 imprisonment, up to 5 years.

Where will my case be heard?

Sexual Assault of a child aged 16, and sexual assault of a child 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 Section 49D:

For Section 49D, A mistaken but honest and reasonable belief that the touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence.

A defence is available for charges related to section 49D(1) if, at the time of the alleged conduct:

1. ‘B’ was 12 years old or older.
2. ‘A’ had a reasonable belief that ‘B’ was 16 years old or older.

This defence is pertinent to section 49D as it allows the accused (A) to argue that they mistakenly believed the victim (B) was of a legal age to consent, thus potentially negating the intentional nature of the offence. If ‘A’ can convincingly demonstrate this reasonable belief, it may serve as a valid defence against the charge of sexual assault of a child under the age of 16.

Factors and Defences to consider for Section 49E:

A mistaken but honest and reasonable belief that the touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence.

A defence is available for charges related to section 49E(1) if, at the time of the alleged conduct:

1. ‘A’ had a reasonable belief that ‘B’ was 18 years old or older.

This defence is applicable to section 49E, which addresses the sexual assault of a child aged 16 or 17 under care, supervision, or authority. If the accused (A) can demonstrate that they reasonably believed the victim (B) was at least 18 years old, this may mitigate liability for the offence. Establishing this belief could serve as a valid defence against the charge of sexual assault, as it challenges the intentional nature of the conduct in question.

And/or

A defence is available for charges related to section 49E(1) if, at the time of the alleged conduct:

1. ‘A’ reasonably believed that both ‘A’ and ‘B’ were married to each other, and that this marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth.

3. ‘A’ was not more than 5 years older than ‘B’.
4. ‘A’ reasonably believed that they were ‘B’s’ domestic partner, and that this domestic partnership had commenced before ‘B’ fell under ‘A’s’ care, supervision, or authority.

And/or

A defence is available for charges related to section 49E(1) if, at the time of the alleged conduct:

• ‘A’ reasonably believed that ‘B’ was not under ‘A’s’ care, supervision, or authority.

This defence is crucial in cases where the accused (A) is alleged to have committed sexual offences against individuals aged 16 or 17. If ‘A’ can demonstrate a reasonable belief that ‘B’ was not in a position of dependence on ‘A’, it may negate the culpability associated with the charges under the specified sections of the law.

‘A’ bears the burden of proving (on the balance of probabilities) that any of the above defences are relevant to them.

Other factors to consider:

• Do you have a potential defence?
• What is the nature of the care, supervision or authority over the child?
• When did this relationship begin? 
• What is your age compared to that of the child?
• Were aware of the child’s age?
• Did anything of a sexual nature occur between you and 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 sexual assault of a Child Under the Age of 16 or Sexual assault 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.