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

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

Being charged with sexual penetration of a child under the age of 16 is a serious offence under the Crimes Act 1958, Section 49B (“CA”). This charge arises when a person intentionally engages in sexual penetration with another person who is a minor, defined as someone under the age of 16.

The law encompasses various forms of involvement, including directly performing the act, causing or allowing the child to penetrate the accused, or facilitating the child in penetrating themselves or others.

What must the prosecution prove?

To secure a conviction under Section 49B, the prosecution must establish the following elements beyond a reasonable doubt:

1. The defendant (A) intentionally:
   • sexually penetrated another person (B); or
   • caused or allowed ‘B’ to sexually penetrate ‘A’; or
   • caused ‘B’ to sexually penetrate themselves, another person (C), or be sexually penetrated by ‘C’.
2. The victim (B) is a child under the age of 16 years.

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

A charge under Section 49C of the CA pertains to the sexual penetration of a child aged 16 or 17 who is under the care, supervision, or authority of the accused. This provision recognises the vulnerability of adolescents in these positions and emphasises the legal responsibility that adults have in protecting minors from exploitation.

What must the prosecution prove?

For the prosecution to prove an offence under Section 49C, it must demonstrate the following:

1. The defendant (A) intentionally:
   • sexually penetrated another person (B); or
   • caused or allowed ‘B’ to sexually penetrate ‘A’; or
   • caused ‘B’ to sexually penetrate themselves, another person (C), or be sexually penetrated by ‘C’.
2. The victim (B) is:
   • a child aged 16 or 17 years; and
   • under the care, supervision, or authority of ‘A’.

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 16 (Section 49B)

1. A person convicted of this offence is liable to level 4 imprisonment.
2. The maximum penalty for this offence is 15 years.
3. The standard sentence for an offence against this section is 6 years.

Penalties for Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority (Section 49C)

1. A person convicted of this offence is liable to level 5 imprisonment.
2. The maximum penalty for this offence is 10 years.

Where will my case be heard?

Sexual Penetration of a Child Under the Age of 16, and sexual penetration of a child aged 16-17 under care, supervision or authority cases can ONLY be heard in the County Court.

Factors and Defences to consider for Section 49B:

A defence to a charge under section 49B(1) applies if, at the time of the alleged conduct:

• Person ‘A’ was not more than 2 years older than Person ‘B’
• Person ‘B’ was 12 years of age or older; and
• Person ‘B’ consented to the sexual penetration.

And/or

A defence to a charge under section 49B(1) is applicable if, at the time of the alleged conduct:

• Person ‘B’ was 12 years of age or older; and
• Person ‘A’ had a reasonable belief that Person ‘B’ was 16 years of age or older.

Factors and Defences to consider for Section 49C:

A defence to a charge under Section 49C(1) applies if, at the time of the alleged conduct:

• Person ‘A’ reasonably believed that ‘B’ was 18 years of age or more.

And/or

A defence to a charge under section 49C(1) is established if, at the time of the alleged conduct:

• Person ‘A’ reasonably believed that they and Person ‘B’ were married to each other, and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

• Person ‘A’:

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

(ii) reasonably believed that they were Person ‘B’s’ domestic partner, with the domestic partnership commencing before Person ‘B’ came under Person ‘A’s’ care, supervision, or authority.

And/or

• ‘A’ reasonably believed that ‘B’ was not under ‘A’s’ 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:

• 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 Penetration of a Child Under the Age of 16 or Sexual Penetration 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.