SEXUAL OFFENCES AGAINST CHILDREN – CASE STUDY
This article discusses some old charges where the age of consent in Victoria is relevant element in relation to the charges.
Please be aware this is an old article relating to the law back in 2015, there have been some significant updates. Although there is a good break down of some cases in this article, for more recent information where all charges and articles are itemised, go to the main sexual offences page.
Introduction
Victoria Police Crime Statistics 2013/14 show that sexual offending is on the increase. The study showed that the number of juvenile rape victims increased by 8.4% from the previous year. This figure has been strongly influenced by an increase in family-related rape incidents, up 15.6% from the previous period.
Other sexual offences also saw a statistical increase. Non-rape related sexual violence increased by 13.5% from previous years, with juvenile sex offence victims 3.0% higher than the previous year.
Sexual offences against children are taken extremely seriously by the courts. Severe penalties apply to those who have been convicted of child rape or sexual assault. Stricter rules have now also been put in place to counteract underage “sexting” and the sharing of child pornographic content between both adults and other minors.
The Law
There are multiple sex offences against the child which can be prosecuted under the Crimes Act 1958 (Vic). The following are examples of sexual crimes against children as provided for in the Crimes Act:
Section 45 – Sexual Penetration of a Child Under the Age of 16
- This offence has since been repealed, but still applies to offences that occurred between 5 August 1991 until 30 June 2017. See the repealed charge here
- It is an offence to sexually penetrate a person under 16, whether with consent or without, if the person charged is more than 2 years older than the child.
- It is a defence to a charge under section 45 that the accused believed on reasonable grounds that the child was aged 16 years or older, or that the accused was less than 2 years older than the child.
- The penalties for contravening section 45 range from a maximum of 10 years imprisonment if the child was between 12 and 16 years, to 25 years if the child was less than 12 years.
Section 47 – Indecent Act with a Child Under the Age of 16
- This offence has since been repealed, but still applies to offences that occurred between 5 August 1991 until 30 June 2017. See the repealed charge here
- It is an offence to commit an indecent act with or in the presence of a child under the age of 16 years.
- The same defences apply to a charge under section 47 as apply to section 45.
- The penalty for breaching section 47 is a maximum of 10 years imprisonment.
Section 48 – Penetration of a 16 or 17 year old Child
- This offence has since been repealed, but still applies to offences that occurred between 5 August 1991 until 30 June 2017. See the repealed charge here
- It is an offence to sexually penetrate a child who is between 16 and 18 years of age, if that child is under the accused’s care and they are not married.
- It is a defence to a charge under section 48 if the accused believed on reasonable grounds that the child was over 18 years of age. There may also be a defence available if the child was not in the supervision of the accused.
- A breach of section 48 is punishable by up to 10 years imprisonment
Section 58 – Procuring Sexual Penetration of a Child
- This offence has since been repealed, but still applies to offences that occurred between 5 August 1991 and 30 June 2017.
- A person over the age of 18 must not procure a child for sexual penetration or an indecent act. This means a person cannot persuade a child to take part in sexual activity, including through text messaging, internet chats, or face-to-face communication.
- The penalty for breaching this section is a maximum of 10 years imprisonment.
Sections 68, 69, and 70 also make it an offence to produce child pornography, procure a child for child pornography, and possess child pornography. The penalties for these sections range from 5 years to 10 years imprisonment.
If you have been charged with any of these sexual offences against children, you could be facing very lengthy prison time, large fines, a criminal conviction, and registration on the sex offenders’ register. An offence against these sections may make it extremely hard for you to find future employment, and you may find that your ability to travel internationally is restricted by some countries’ immigration laws.
You should contact an experienced criminal solicitor immediately if you have been charged with any of the above offences. They may be able to raise one of the defences set out above, reduce your prison sentence with a plea, and even keep your name off the sex offenders’ registry.
Case Studies
The following examples help clarify certain issues that have arisen as a result of the wording of the Crimes Act. Precedents arising from years of judicial reasoning have helped clarify what is meant by such terms as “reasonable grounds”, “consent”, and “procure”.
Sexual Penetration / Rape
R v JC [2000] ACTSC 72
The Facts
The accused was charged with sexual penetration of a child older than 10 years but younger than 16 years (the South Australian equivalent to section 45). It was found that the accused had, on several occasions, conducted an indecent act with a young boy, and on one occasion the accused had performed oral sex on the boy. The question for the court in this case was whether performing oral sex on the boy constituted sexual penetration.
Court Decision
The South Australian Supreme Court held that a person whose mouth is penetrated by the child’s penis takes part in an act of sexual penetration with the child for the purposes of the Crimes Act.
This is a significant decision as it extends “sexual penetration of a child” to include forced penetration of an adult by that child. It should also be noted that other forms of sexual penetration are equally punishable by law, including sexual penetration of the mouth, vagina or anus of a child by the accused.
Section 35 of the Crimes Act defines penetration as ‘the introduction by a person of his penis into the mouth, vagina or anus of another person’. It also defines penetration as ‘the introduction of an object or any other body part into the vagina or anus of another person’.
It does not state that the introduction of another person’s penis into the mouth of the accused is sexual penetration for the purposes of the Act. However, if the South Australian case is adopted, courts may extend the definition and such an action could be deemed sexual penetration.
R v AWL [2003] SASC 416
The Facts
The accused was charged with committing an indecent act with a child under the age of 16 (the South Australian equivalent to section 47). The accused had photographed himself with his erect penis on a pillowcase close to the head of a child under the age of 16 while the child was asleep.
Court Decision
The South Australian Supreme Court held that the accused was guilty of gross indecency in the presence of a child under the age of 16 years. Justice Debelle explained that it did not matter that the child did not witness the indecent act, but that the provisions of the section protect children from being subjected to indecent acts or from unknowingly involving them so that they may be later subjected to shame or ridicule.
The decision stands as an example that indecency with a child or in the presence of a child is viewed quite broadly, and the child need not be aware that what the adult is doing is indecent. Such a decision could extend to adults who perform indecent acts around children so young they may not remember the event in the future.
It is important also to note that an indecent act “with” a child may require some physical contact of an indecent kind with the complainant, but an indecent act “in the presence of” a child need not be committed with physical contact (see R v Coffey (2003)).
Child Pornography
McEwan v Simmons (2008) 73 NSWLR 10
The Facts
The accused was charged with possessing child pornography under New South Wales criminal legislation (the equivalent to section 70 of the Victorian Crimes Act). The accused was deemed to be in possession of pornographic cartoons, specifically images of The Simpsons family children naked, with human genitalia.
Court Decision
The New South Wales Supreme Court held that a fictional cartoon character can be a depiction of a person, and therefore, for the purposes of the Crimes Act, can be considered “child pornography”.
This conclusion means that “child pornography” extends not only to “films, photographs, publications or computer games” depicting children engaging in sexual activity, but also to some cartoons depicting well-known fictional children in sexual activity.
While this may not always be the case, possession of any material that depicts a child in a sexual activity may be deemed child pornography, and if it is found to be in your possession you may be liable to very serious penalties.
Contact
If you have been charged with any of the above sexual offences against children, you should contact an experienced criminal lawyer immediately.
The punishment for child sex offences is very severe. You may face lengthy prison time, fines, and a criminal record which could limit your future ambitions, plans and employment prospects.
Contact a professional criminal solicitor for advice and representation today.
