7.3.4.1 – Sexual Offences against children from 1 July 2017[1]

7.3.4.1.10 - Bench Notes: Sexual Assault of a child under 16 – Section 49D

Commencement Information

  1. The current s49D offence came into force on 1 July 2017.
  2. Prior to 1 July 2017, Crimes Act 1958 s47 contained a composite offence of an indecent act “with or in the presence of” a child under 16. Following the amendments introduced by the Crimes Amendment (Sexual Offences) Act 2016, the offence was split so that section 49D addresses sexual touching and section 49F addresses sexual activity in the presence of the child.
  3. For offences committed before 1 July 2017, see 7.3.4.2.2 – Indecent Act with a Child Under 16.
  4. For offences involving sexual activity, see 7.3.4.1.16 – Bench Notes: Sexual activity in the presence of a child under 16 – Section 49F

Elements

  1. The elements of the offence are set out in s49D(1) of the Crimes Act 1958. The prosecution must prove that:

i)The accused (A) intentionally:

i)touched another person (B);

ii)caused or allowed B to touch A; or

iii)caused B to touch or to continue to touch themselves, another person (C) or to be touched, or to continue to be touched, by C;

ii)B was a child under the age of 16 years;

iii)The touching was sexual;

iv)The touching was contrary to community standards of acceptable conduct.

Intentional touching

  1. The first element that the prosecution must prove is that the accused intentionally touched another person, or caused the other person to touch someone. The term “touching” is defined in Crimes Act 1958 s35B as touching that may be done:

(a) with any part of the body; or

(b) with anything else; or

(c) through anything, including anything worn by the person doing the touching or by the person touched.

  1. This element may also be proved where the accused causes another person to touch the complainant (Crimes Act 1958 s49D(1)).
  2. The fault element for this element is basic or general intention. Where relevant, the prosecution must prove that the touching was intentional in the sense that it was deliberate rather than inadvertent or accidental.
  3. For more information on this element, see 7.3.2.1B - Bench Notes: Sexual Assault.

Child Under 16

  1. The second element requires the prosecution to prove that the complainant was under the age of 16 at the time the relevant act took place (Crimes Act 1958 s49D(1)).

Sexual Touching

  1. The third element requires the prosecution to prove that the touching was sexual (Crimes Act 1958 s49D(1)).
  2. Touching can be “sexual” because of:

(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c) any other aspect of the touching, including the circumstances in which it is done (Crimes Act 1958 s35B(2)).

  1. For more information on this element, see 7.3.2.1B - Bench Notes: Sexual Assault.

Touching contrary to community standards of acceptable conduct

  1. The fourth element is that the touching is contrary to community standards of acceptable conduct (Crimes Act 1958 s49D(1)).
  2. Section 49D(3) of the Crimes Act 1958 provides that:

Whether or not the touching is contrary to community standards of acceptable conduct depends on the circumstances.

  1. The Act specifies that the circumstances include the purpose of the touching and whether the accused seeks or gets sexual arousal or gratification from the touching. However, the circumstances do not include whether the complainant consented to the touching or whether the accused believed the complainant consented to the touching (Crimes Act 1958 s49D(4)).

Statutory defences and exemption

Similarity in age

  1. Section 49U of the Crimes Act 1958 provides that it is a defence to an offence against section 49D(1) if, at the time of the conduct:

(a)A was not more than 2 years older than B; and

(b)B was 12 years of age or more.

  1. In relation to this defence, the accused’s actual age must not exceed the child’s by more than 24 months. The availability of the defence is not determined by a measure limited to whole-years (Stannard v DPP [2010] VSCA 165).
  2. To disprove this defence, the prosecution must rebut one or more limbs of section 49U.
  3. Unlike the former s47, a similarity in age is not used as a threshold requirement before consent is relevant. This means that the jury does not need to consider consent, or a reasonable belief in consent, as part of the similarity in age defence.

Reasonable belief as to age

  1. Section 49W of the Crimes Act 1958 provides that it is a defence to an offence against section 49D(1) if, at the time of the conduct:

(a)B was 12 years of age or more; and

(b)A reasonably believed that B was 16 years of age or more.

  1. The accused bears the burden of proving, on the balance of probabilities, that he or she reasonably believed that B was 16 years of age or more (Crimes Act 1958 s49W(4)).
  2. The Note to section 49W states that:

Whether or not A reasonably believed that B … was 16 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out [B’s] age.

  1. The Note also specifies that the accused has an evidential burden to establish that B was 12 years of age or more.
  2. Unlike the former s47, a reasonable belief in age is not used as a threshold requirement before consent is relevant. This means that the jury does not need to consider consent, or a reasonable belief in consent, as part of the belief in age defence.

Honest and reasonable mistake not a defence in some circumstances

  1. Section 49ZC(2) of the Crimes Act 1958 provides that an honest and reasonable mistaken belief that the touching was not sexual or was not contrary to community standards of acceptable conduct is not a defence.
  2. The combined effect of sections 49D(4) and 49ZC(2) is that while the accused’s beliefs can make a touching sexual or contrary to community standards, the accused’s beliefs cannot operate to excuse otherwise prohibited conduct.

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[1] This document was last updated on 1 July 2017.