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

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.

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 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.
2. ‘A’ was not more than 5 years older than ‘B’.
3. ‘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.