s49I Child aged 16 or 17 under your care present during sexual activity

Child aged 16 or 17 under your care present during sexual activity charges

Have you been charged with causing a child aged 16 or 17 under your care, supervision or authority to be present during sexual activity?

If you have been charged with causing a child aged 16 or 17 under your care, supervision or authority to be present during sexual activity then you are facing a serious criminal charge. If convicted, then you are facing a custodial sentence. The most important thing that you can do right now is speak to a lawyer – and a criminal specialist is your best choice.

Some questions to discuss with your lawyer are: Did you cause or allow a child aged 16 or 17 under your care, supervision or authority to be present during sexual activity performed by a third person? Was this done intentionally?

‘Being present’ 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. The child can just be watching. Either or both you and the child have to have been in Victoria for some of the alleged offending. The person performing the sexual activity does not have to have been in Victoria at any time.

Were you validly married to the alleged victim, or not more than 5 years older than them, or in a domestic relationship with them before any other care, supervision or authoritative relationship? If so then these factors can be used as a defence for you against this charge. If you had a reasonable belief that these factors were true then this is also a defence, as long as you can show it is a ‘reasonable’ belief.

If the you had a reasonable belief that the child in question was over 18 then this is a valid defence to this charge, but you have to prove it is a ‘reasonable’ belief.

Similarly, if you had a reasonable belief that the child was not under your care, supervision or authority then this is also a defence.

What is not a defence is if you thought that the activity was not sexual and not contrary to community standards, or you thought that it was not contrary to community standards to have the child present at the time of the activity.

The Offence

Section 49I of the Crimes Act 1958

The prosecution must prove:

1. A third person engaged in an activity; and
2. This activity was sexual; and
3. The alleged victim was present at the time of the sexual activity;
4. The defendant caused the alleged victim the be present when the third person engages in the activity;
5. The alleged victim is a child aged 16 or 17 and under the care supervision or authority of the defendant;
6. The activity that the defendant caused or allowed the alleged victim to be present for 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

Charges of causing a child aged 16 or 17 under your care, supervision or authority to be present during sexual activity can only be heard in the County Court or Supreme Court of Victoria.

Questions to Consider

Did you show or cause a child aged 16 or 17 under your care, supervision or authority to be present while another person performed a sexual activity? Were you aware of the real age of the child involved? What was the activity that the child was in the presence of? What was the reason for the child being present at the time of the activity? What is the nature of your relationship with the child and when did it begin? If you are planning to plead guilty, what can you do to try to minimise your sentence?

What to do Next

Now is the time to make sure that you have good legal representation. If you have been charged with sexual activity in the presence of a child aged 16 or 17 under your care, supervision or authority then you need to take this very seriously and get prepared.

The Legislation

Section 49I Causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity

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

(a)     another person (B) engages in an activity; and

(b)     the activity is sexual; and

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

(d)     A intentionally causes or allows C to be present when B engages in the activity; and

(e)     C is—

(i)     a child aged 16 or 17 years; and

(ii)     under A’s care, supervision or authority; and

(f)     A’s causing or allowing C to be present when B engages in the activity 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 causing or allowing C to be present when B engages in the activity 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 B engaging in the activity or from the presence of C;

(b)     the circumstances do not include—

(i)     whether C consents—

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

(B)     to B engaging in the activity; or

(ii)     whether A believes that C consents—

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

(B)     to B engaging in the activity.

(5)     For the purposes of subsection (1), when B engages in an activity, C 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 C 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 C was in Victoria at the time at which that conduct occurred.

(7)     It is immaterial that C 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 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—see section 49ZC.

If you have been charged with a child sex offence call one of our expert Criminal Defence Lawyers immediately. 03 8644 7320.