s49F Sexual activity in the presence of a child under the age of 16

Have you been charged with sexual activity in the presence of a child under the age of 16?

Sexual activity in the presence of a child under the age of 16 is a serious criminal charge. If you are convicted, you will be given a custodial sentence. You need to be very careful about how you respond to these charges. Your best course of action is to speak to a lawyer immediately.

Some questions to discuss with your lawyer are: Did you engage in sexual activity in the presence of a child under the age of 16? Was this intentional? Did you sexually touch yourself when you knew that a child under the age of 16 was present or probably present?

After the implementation of the Electronic Transactions (Victoria) Act 2000, ‘presence’ also includes using an electronic means to transmit images of sexual activity in real time or close to real time – so for example through Facetime or Skype. Either or both you and the child have to have been in Victoria for some of the alleged offending.

If you are not more than two years older than the defendant and they are older than 12, then this can be used in your defence.

If you had a reasonable belief the child was older than 16, and they were actually older than 12, then this is also a defence.

What is not a defence is if you had the mistaken or honest reasonable belief that the activity was not sexual and not contrary to community standards.

Sexual activity in the presence of a child under the age of 16 – The Offence

S 49 F of the Crimes Act 1958

The prosecution must prove:

1. The defendant intentionally engaged in sexual activity in the presence of a child under the age of 16;
2. The activity was sexual;
3. The alleged victim was present at the time of the sexual activity;
4. The defendant knew the alleged victim was present or probably present;
5. The alleged victim was aged under 16 at the time the sexual touching took place;
6. The touching is either sexual or contrary to community standards of acceptable behaviour.

Sexual activity in the presence of a child under the age of 16 – The Maximum Penalty

Level 5 imprisonment being a maximum of 10 years.

Where Will My Case Be Heard

Sexual activity in the presence of a child under the age of 16 cases can only be heard in the County Court or Supreme Court of Victoria.

Questions to Consider

Were you engaging in what was really a sexual activity in the presence of a child under the age of 16? Were you aware of the real age of the child involved? What steps did you take to ascertain the age of the child? Are you no more than two years older than the complainant? If you are planning to plead guilty, what can you do to try to minimise your sentence?

What to do Next

You need to talk to a lawyer about this very serious charge. You will need assistance with every part of preparing your defence. There is a real danger in trying to go this alone.

If you have been charged sexual activity in the presence of a child under 16 you should make an appointment to speak with one of our lawyers about what the best next step is in your particular situation.

The Legislation

Sexual activity in the presence of a child under the age of 16

(1)     A person (A) commits an offence if—

(a)     A intentionally engages in an activity; and

(b)     the activity is sexual; and

(c)     another person (B) is present when A engages in the activity; and

(d)     A knows that B is, or probably is, present when A engages in the activity; and

(e)     B is a child under the age of 16 years; and

(f)     engaging in the activity in the presence of B is contrary to community standards of acceptable conduct.

(2)     A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)     Whether or not engaging in the activity in the presence of B is contrary to community standards of acceptable conduct depends on the circumstances.

(4)     For the purposes of subsection (3)—

(a)     the circumstances include—

(i)     the purpose of the activity; and

(ii)     whether A seeks or gets sexual arousal or sexual gratification from engaging in the activity or from the presence of B;

(b)     the circumstances do not include—

(i)     whether B consents—

(A)     to being present when A engages in the activity; or

(B)     to A engaging in the activity; or

(ii)     whether A believes that B consents—

(A)     to being present when A engages in the activity; or

(B)     to A engaging in the activity.

(5)     For the purposes of subsection (1), when A engages in an activity, B may be present—

(a)     in person; or

(b)     by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by B in real time or close to real time.

(6)     It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B was in Victoria at the time at which that conduct occurred.

(7)     It is immaterial that B was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A was in Victoria at the time at which that conduct occurred.

Notes

1     An exception applies to this offence—see section 49U.

2     A defence applies to this offence—see section 49W.

3     A mistaken but honest and reasonable belief that the activity was not sexual or that engaging in the activity in the presence of B was not contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

If you have been charged or facing charges for Sexual activity in the presence of a child under the age of 16, call Dribbin & Brown Criminal Lawyers expert defence for Sex Offences allegations 03 8644 7320