Have you been charged with Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity?
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What does it mean to be charged with causing a child under the age of 16 to be present during sexual activity?
Section 49H of the Crimes Act 1958 (CA) criminalises the act of intentionally causing or allowing a child under the age of 16 to be present during sexual activity. The law focuses on protecting minors from being exposed to sexual acts, recognising that such exposure is harmful and contrary to societal norms. The offence applies whether the child is present in person or electronically and places particular emphasis on whether the conduct violates community standards of acceptable conduct.
What does the prosecution have to prove?
For a person (A) to be convicted under Section 49H, the prosecution must prove the following elements beyond a reasonable doubt:
- ‘B’ must have engaged in an activity, and that activity must be sexual in nature. The sexual nature of the activity is determined based on the purpose of the activity and its potential to cause sexual arousal or gratification.
- A third person (C) must be present while ‘B’ is engaging in the sexual activity. This presence may be physical or virtual (via electronic communication in real-time or close to real-time).
- ‘C’ must be under the age of 16 at the time of the offence.
- A must have intentionally caused or allowed ‘C’ to be present during the sexual activity. This includes both active causation (e.g., inviting the child) and passive allowance (e.g., not preventing the child from being present).
- The prosecution must establish that ‘A’s’ actions in causing or allowing ‘C’ to be present during ‘B’s’ sexual activity were contrary to community standards of acceptable conduct.
This requires an assessment of factors such as:
- The purpose of the activity.
- Whether ‘A’ sought or obtained sexual gratification from the presence of ‘C’ or from ‘B’s’ activity.
- ‘C’s’ consent or ‘A’s’ belief in ‘C’s’ consent is irrelevant; the law explicitly disregards whether the child consented or whether ‘A’ believed the child consented to being present during the activity.
The offence may occur irrespective of the physical location of the parties involved, as long as at least one of the individuals (A or C) was in Victoria at the time of the offence.
What does it mean to be charged with Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity?
Section 49I of the CA criminalises the act of intentionally causing or allowing a child aged 16 or 17, who is under the care, supervision, or authority of the offender, to be present during sexual activity. This offence protects older minors who, despite being close to the age of majority, are still vulnerable due to their dependency or authority relationships. The offence applies whether the child is present physically or electronically and focuses on whether the conduct breaches community standards.
What does the prosecution have to prove?
For a person (A) to be convicted under Section 49I, the prosecution must prove the following elements beyond a reasonable doubt
- B’ must have engaged in an activity, and that activity must be sexual in nature.
This could involve acts that are intended for sexual arousal or gratification, based on the purpose of the activity.
- A third person (C), aged 16 or 17, must be present during the sexual activity.
Presence can be either physical or virtual (via electronic communication in real-time or near real-time).
- ‘C’ must be under ‘A’s’ care, supervision, or authority at the time of the offence.
This covers situations where the offender has some responsibility or power over the child, such as in educational, employment, or guardianship contexts.
- ‘A’ must have intentionally caused or allowed ‘C’ to be present during ‘B’s’ sexual activity.
This may include actions where ‘A’ deliberately facilitates the presence of the child or fails to prevent them from being exposed to the activity.
- The prosecution must establish that ‘A’s’ actions in causing or allowing ‘C’ to be present during ‘B’s’ sexual activity were contrary to community standards of acceptable conduct.
This is determined by the context and nature of the act, including:
- The purpose of the sexual activity.
- Whether ‘A’ gained sexual arousal or gratification from ‘B’s’ sexual activity or from the presence of ‘C’.
- The law explicitly excludes ‘C’s’ consent or ‘A’s’ belief in ‘C’s’ consent as relevant factors.
The offence applies regardless of the location of the individuals involved, provided that either ‘A’ or ‘C’ was in Victoria at the time of the offence.
Penalties for Causing a child under the age of 16 to be present during sexual activity:
Maximum Penalty: 10 years’ imprisonment (level 5 imprisonment).
Standard Sentence: 4 years’ imprisonment
Penalties for Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity:
Maximum Penalty: 5 years’ imprisonment (level 6 imprisonment).
Where will my case be heard?
Charges of causing a child under the age of 16 to be present during sexual activity and charges of causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity can ONLY be heard in the County Court or Supreme Court of Victoria.
Factors and Defences to consider for s49H:
Under Section 49H(1), there is a specific defence available for the offence of causing a child under the age of 16 to be present during sexual activity. The defence applies if, at the time of the conduct constituting the offence:
- ‘C’ was 12 years of age or more, and
- ‘A’ reasonably believed that C was 16 years of age or more.
This defence is based on the genuine and reasonable belief by the defendant (A) regarding the child’s (C’s) age, provided the child was at least 12 years old at the time.
A mistaken but honest and reasonable belief that the activity was not sexual or that causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct is not a defence to this offence.
Factors and Defences to consider for Section 49I:
For an offence under Section 49I(1) (causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity), a defence is available if, at the time of the conduct constituting the offence, ‘A’ reasonably believed that ‘C’ was 18 years of age or more.
This defence applies if the defendant (A) had a genuine and reasonable belief that the child (C) was an adult (18 years or older) at the time of the incident.
And/or
In addition to the previous defences,
- At the time of the conduct constituting the offence, ‘A’ reasonably believed that ‘A’ and ‘C’ were married to each other, and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth.
- ‘A’ was not more than 5 years older than ‘C’, and
- ‘A’ reasonably believed that ‘A’ was ‘C’s’ domestic partner, and that the domestic partnership commenced before ‘C’ came under ‘A’s’ care, supervision, or authority.
And/or
‘A’ reasonably believed that ‘C’ was not under ‘A’s’ care, supervision, or authority at the time of the conduct constituting the offence.
In all the above scenarios, the burden of proof (balance of probabilities) lays with ‘A’ (the accused).
Other Factors to consider:
- Were you aware of the real age of the child involved?
- What steps did you take to ascertain the age of the child?
- What was the activity that the child was in the presence of?
- What was the purpose of the activity?
- Do you have any other defences available to you?
Given the severity of these charges, speak to a criminal defence lawyer today for an individualised tailored defence strategy that could serve you.
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Offence to Perform Female Genital Mutilation
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Intention of Having Prohibited Female Genital Mutilation Performed
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Sexual Activity with the Corpse of Human Being
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Rape or Rape by Compelled Penetration
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Sexual Assault
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Sexual Assault by Compelling Sexual Touching
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Assault with Intent to Commit a Sexual Offence
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Threat to Commit a Sexual Offence
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Procuring Sexual Act by Threat or Procuring Sexual Act by Fraud
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Administration of an Intoxicating Substance for a Sexual Purpose
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Failing to Comply with Sex Offender Reporting
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Abduction or Detention for a Sexual Purpose
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Furnishing False or Misleading Information
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Indecent Act with a Child Under the Age of 16
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Sexual Activity Directed at Another Person
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Sexual Penetration of a Child Under the Age of 12
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Sexual Penetration of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Assault of a Child Aged 16 or 17 Under Care, Supervision, or Authority
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Sexual Activity in the Presence of a Child Aged 16 or 17 Under Care, Supervision or Authority
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Causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity
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Persistent Sexual Abuse of a Child Under the Age of 16
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Encouraging a Child Aged 16 or 17 Under Care, Supervision or Authority to Engage in, or Be Involved in, Sexual Activity
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Grooming for Sexual Conduct with a Child under the Age of 16
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Loitering Near Schools Etc by a Sexual Offender
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Failure by a Person in Authority to Protect a Child from a Sexual Offence
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Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose
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Causing or Allowing a Sexual Performance Involving a Child
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Inciting or Offering a Sexual Performance Involving a Child
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Facilitating a Sexual Offence Against a Child
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Sexual Penetration of a Child or Lineal Descendent
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Sexual Penetration of a Stepchild
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Sexual Penetration of a Parent, Lineal Ancestor or Stepparent
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Sexual Penetration of a Sibling or Half-Sibling
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Sexual Offences Against People with Impaired Mental Functioning (Repealed 2016)
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Child in the Production of Child Abuse Material
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Distributing Child Abuse Material
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Administering a Website Used to Deal With Child Abuse Material
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Accessing Child Abuse Material
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Assisting a Person to Avoid Apprehension
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Sexual Assault of a Person with Cognitive Impairment or Mental Illness
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Using Force, Threat etc. to Cause Another Person to Provide Commercial Sexual Services
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Causing Another Person to Provide Commercial Sexual Services in Circumstances Involving Sexual Servitude
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Aggravated Sexual Servitude
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Deceptive Recruiting for Commercial Sexual Services
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Bestiality
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Child Stealing
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Bigamy
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Abortion Performed by Unqualified Person
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Concealing the Birth of a Child
What happens next?
If you have been charged with Causing a child under the age of 16 to be present during sexual activity or causing a child aged 16 or 17 under care, supervision, or authority to be present during sexual activity, 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.
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