Sexual Activity In The presence Of A Child Aged 16 or 17 Under Care
Have you been charged with sexual activity in the presence 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 is a serious criminal charge. If you are convicted, then you will be given a custodial sentence. You need to put a lot of thought into what will be the best next steps for you. You really should 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 child aged 16 or 17 under your care, supervision or authority? 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, or have a reasonable belief that you were, validly married to the defendant, or you are not more than five years older than the defendant, or you were their domestic partner before the charged activity, then this can be used in your defence.
If you had a reasonable belief the child was older than 18 then that is a defence.
If you had a reasonable belief that the child was not under your care, supervision or authority then this also constitutes 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.
The Offence
Section 49 G of the Crimes Act 1958
The prosecution must prove:
- The defendant intentionally engaged in sexual activity in the presence of a child aged 16 or 17 who was under their care, supervision or authority;
- The activity was sexual;
- The alleged victim was present at the time of the sexual activity;
- The defendant knew the alleged victim was present or probably present;
- The activity was either sexual or contrary to community standards of acceptable behaviour;
The Maximum Penalty
Level 6 imprisonment being a maximum of 5 years.
Where Will My Case Be Heard
Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority 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 aged 16 or 17 under care, supervision or authority? Were you aware of the real age of the child involved? What steps did you take to ascertain the age of the child? What is your age difference to the complainant? When did your role as their carer, supervisor or authority over them begin? Did you have a relationship with them before this, and if so what was it? If you are planning to plead guilty, what can you do to try to minimise your sentence?
What to do Next
You will need assistance with every part of preparing your defence against such a serious charge. There is a real danger in trying to go this alone, as the law is far from simple.
If you have been charged sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority you should make an appointment to speak with one of our lawyers about the choices and decisions that you face in determining what to do right now.
The Legislation
Section 49G Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority
(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—
(i) a child aged 16 or 17 years; and
(ii) under A’s care, supervision or authority; 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 6 imprisonment (5 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 2000that 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 49Y.
2 Defences apply to this offence—see sections 49X, 49Z and 49ZA.
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 with a sex offence, contact Melbourne’s leading Criminal Lawyers 03 8644 7320
