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

What does it mean to be Charged with sexual penetration of a parent, lineal ancestor or stepparent?

Under Section 50E of the Crimes Act 1958 (“CA”), the law criminalises sexual relationships between an individual and their parent, grandparent, or stepparent if the individual is over 18. Even if the sexual penetration is consensual between the parties, it remains illegal due to the familial relationship. The prosecution must prove that the accused:

• Intentionally engaged in the act of sexual penetration, and
• Knew of the familial relationship with the other person involved.

In such cases, consent is irrelevant, and the familial connection is the key factor in making the conduct unlawful.

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.

Penalties for sexual penetration of a parent, lineal ancestor or stepparent:

A person found guilty of this offence faces a maximum penalty of 5 years imprisonment (level 6 imprisonment).

Where will my case be heard?

Sexual penetration of a parent, lineal ancestor or stepparent cases can ONLY be heard in the County Court or Supreme Court of Victoria.

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.

Other factors to consider:

• Did you sexually penetrate a parent, a grandparent or another lineal ancestor?
• Is the alleged victim a stepparent or related in anyway?
• Have you ever been in a position of care over that person?
• How old were you when this alleged act took place?
• What were the surrounding circumstances of this offence?

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 stepparent etc, 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.