Have you been charged with sexual penetration of a parent, lineal ancestor or stepparent?

What must Prosecution Must Prove:

1. Person A (the accused) intentionally:
   • Sexually penetrates Person B (the parent, lineal ancestor, or stepparent), or
   • Causes or allows Person B to sexually penetrate Person A.
2. Person A is 18 years of age or older.
3. Person B is Person A’s parent, lineal ancestor, or stepparent.
   • A lineal ancestor includes direct relatives such as grandparents and great-grandparents.
4. Person A knows that Person B is their parent, lineal ancestor, or stepparent.

What constitutes penetration?

According to Section 37D of the CA, “sexual penetration” is defined as:

1. The introduction (to any extent) by a person of:
   • Any part of their body (including the penis) into another person’s vagina, anus, or mouth.
   • An object or part of the body (other than the penis) into another person’s vagina or anus.
2. The continuation of such penetration is also included, meaning that once penetration occurs, the act is considered ongoing until it stops.

Factors and Defences to consider:

The CA provides a defence under Section 50H to a charge of sexual penetration of a parent, lineal ancestor or step parent if the accused (Person A) did not consent to the conduct constituting the offence. This section acknowledges situations where Person A may have intentionally engaged in the conduct but did so without genuine consent.

B’s consent is not a defence to this offence.

Under Section 50E, there are specific exceptions that apply to the offence of sexual penetration of a parent, lineal ancestor, or stepparent. These exceptions acknowledge situations where the conduct does not fall under criminal liability, despite the familial relationship.

Exceptions:

1. Medical or Hygienic Purposes:
   • Person A does not commit an offence if the sexual penetration occurs as part of a procedure carried out in good faith for medical or hygienic purposes.
   • This exception applies to situations such as medical examinations or treatments where the act of penetration is necessary and done in a professional and lawful manner, without any sexual intent.

(2) Sexual activity when A was under 18:

• Person A does not commit an offence if Person B (the parent, lineal ancestor, or stepparent) engaged in sexual activity with Person A when A was under 18 years of age.
• This exception addresses situations where the sexual activity took place while Person A was a minor, possibly before the age of criminal responsibility for such conduct.