Have you been Charged with Sexual Penetration of a Child Under the Age of 12?

What does it mean to be charged wit sexual penetration of a child under the age of 12?

Under Section 49A of the Crimes Act 1958 (“CA”), the offence of sexual penetration of a child under the age of 12 occurs when an individual (A) engages in any form of sexual penetration involving a child (B) who is under 12 years old. This includes acts where ‘A’ sexually penetrates ‘B’, causes ‘B’ to penetrate themselves or another person, or allows ‘B’ to penetrate ‘A’. The severity of the charge reflects the vulnerability of the victim due to their age.

The offence carries a maximum penalty of 25 years imprisonment and is considered a serious criminal offence. Importantly, the law is strict in this regard, as a mistaken but honest belief about the child’s age is not a defence.

What must the prosecution prove?

For the prosecution to secure a conviction under Section 49A, they must prove the following elements:

1. Person ‘A’ intentionally engaged in or facilitated an act of sexual penetration involving the child. This can include:

1. 1. • sexually penetrating the child.
      • Causing the child to sexually penetrate ‘A’ or another person.
      • Causing the child to sexually penetrate themselves or be sexually penetrated by someone else.
   2. The victim (B) was under the age of 12 years at the time of the offence.
   3. The prosecution does not need to prove that ‘A’ knew the child was under 12. A mistaken, but honest and reasonable, belief about the child’s age is not a defence.

What constitutes Penetration?

Under the CA, penetration is broadly defined to encompass various forms of sexual activity involving physical intrusion. Specifically, Section 37D of the Act provides the definition of “sexual penetration,” which includes:

1. Penetration of the genitalia or anus:
   • Any intrusion of a person’s genitalia or anus by any part of another person’s body (such as the penis, fingers) or by an object manipulated by another person.
2. Penetration of the mouth:
   • Any intrusion of a person’s mouth by the penis of another person.
3. Causing penetration:
   • When a person causes another person to engage in the act of penetration as described above.

It’s important to note that penetration is considered to occur to the slightest degree and does not require complete or full insertion. This definition covers a wide range of sexual conduct and is used in the context of various sexual offences, including those involving children.

Penalties for sexual penetration of a child under the age of 12:

If convicted, you are liable to a maximum sentence of 25 years imprisonment.

The standard sentence for this offence is 10 years, as provided under the Sentencing Act 1991. The standard sentence is a guide for sentencing judges based on the seriousness of the offence.

Mandatory Custodial Sentence: As a category 1 offence under the Sentencing Act 1991, a custodial sentence must be imposed.

Where will my case be heard?

Sexual penetration of a child under the age of 12 cases can ONLY be heard in the County Court.

Factors and Defences to consider:

• Do you have a potential defence?
• Did you commit an act of sexual penetration on a child under the age of 12?
• Was the child 12 years old or under?
• What were the surrounding circumstances of your offence?

In cases involving sexual penetration of a child under the age of 12, consent is not a defence under the CA. This is because the law deems children under the age of 12 to be incapable of providing legal consent to sexual activity. Any argument based on the child’s willingness or agreement to participate in the act is irrelevant to the charge.

Additionally, the CA clearly states that a mistaken but honest and reasonable belief that the child was 12 years of age or older is not a valid defence (Section 49ZC). Even if you genuinely believed that the child was older, this belief does not absolve you of criminal liability. The law imposes strict liability concerning the age of the child involved.

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 penetration of a child under the age of 12, 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.