s49L Encouraging sexual activity of a child aged 16 or 17 under care

Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity

Have you been charged with this offence?

This is a serious criminal offence that carries a term of imprisonment as its maximum penalty. You really need a lawyer.

Some questions to discuss with your lawyer are: Did you encourage a child aged 16 or 17 under your care, supervision or authority to engage in, or be involved in, sexual activity? The word ‘encourage’ here also can mean suggesting sexual activity, requesting sexual activity, urging sexual activity or demanding sexual activity, so with those definitions in mind, did you in any way encourage sexual activity? The sexual activity does not have to involve you in this case.

If you were legitimately married to the child at the time of the alleged offending, or if you were in a domestic relationship that pre-dated your role of having care, supervision or authority over the child then this is a defence your lawyer can use in this case.

A reasonable belief that the child was over the age of 18 is a defence to this charge, as is a reasonable belief that you were married or in a domestic partnership with the child (providing you were no more than 5 years older than the child at the time) also constitutes a defence. A reasonable belief that you were not in a relationship with the child where you were their carer, supervisor or had authority over them is also a defence.

The alleged encouragements need not even be in person, but can also be via electronic communication – for example over Facebook or by text message. Either you or the child must have been in Victoria for some part of the alleged encouragement.

It is also not necessary for the child to do what is encouraged or to do activity encouraged or to do it when you are present. It is enough that they have been encouraged by you.

It is however not an offence to attempt to encourage engagement or involvement in a sexual activity – the encouragement has to have been received and understood by the child.

The Offence

Section 49L of the Crimes Act 1958

The prosecution must prove:

1. The defendant was over the age of 18;
2. The defendant encouraged the alleged victim to engage in, or be involved in, an activity;
3. That the activity was sexual;
4. That the alleged victim was a child under aged 16 or 17 under the care, supervision or authority alleged of the defendant at the time of the offence;
5. The defendant sought or received sexual arousal or gratification from either the encouragement of the alleged victim or the activity encouraged.

The Maximum Penalty

Level 6 imprisonment being a maximum of 5 years

Where Will My Case Be Heard?

Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity cases can only be heard in the County Court of Supreme Court of Victoria.

Questions to Consider

Do you have a defence in relation to the available defences that we have outlined above? How long have you been in any sort of relationship with the alleged victim of any kind and when did this relationship begin? Has this relationship changed at all? What was the nature of your interaction with the child? Did they receive and understand any encouragement to engage in, or be involved in, a sexual activity from you? If you are planning to plead guilty then what can you do to try to minimize your sentence?

What to do Next.

It is a really good idea to get your defence sorted as soon as you can – criminal charges don’t just go away, and the longer you have to prepare for your defence the better.

If you have been charged with encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity then you need to make sure that you have the benefit of experienced legal advice and representation.

The Legislation

Section 49L Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity

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

(a) A is 18 years of age or more; and

(b) A encourages another person (B) to engage in, or be involved in, an activity; and

(c) the activity is sexual; and

(d) B is—

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

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

(e) A seeks or gets sexual arousal or sexual gratification from—

(i)  the encouragement; or

(ii) the sexual activity that is encouraged.

(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3) For the purposes of subsection (1) encouraging may be done—

(a) in person; or

(b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000.

(4) It is not necessary to prove—

(a) that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b) that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c) if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5) Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

(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.

(8)     In this section—

“encourage” includes suggest, request, urge and demand.

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 is not a defence to this offence—see section 49ZC.

If you have been charged with a child sex offence contact one of our expert criminal defence lawyers immediately 03 8644 7320