Sexual penetration of, indecent act with or indecent act in the presence of a child under 16 – Is consent a mitigating factor? The Law says…

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Doogue + GeorgeThe article Sexual penetration of, indecent act with or indecent act in the presence of a child under 16 – Is consent a mitigating factor? The Law says… is written by Doogue + George Defence Lawyers.

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GavelIt has often been a submission in the County Court that if a person under 16 consented to a sexual act, it should be taken into consideration by the Court and factor in favour of the accused.

In effect, the fact that the victim was a willing participant in the act should decrease the seriousness of the offence in the same way that proven lack of consent increases the culpability of the offender.

Obviously as with any sexual offending cases, these are important yet vexed issues for the Courts.

On a very basic level, it is a fairly logical submission. The child was not forced into the sexual act; therefore there should be a clear and separate distinction from a case where a child was raped. The logic then follows there is some mitigation in the consent of the child (consent in a non-legal sense).

In a legal sense the law is that a person under 16 can not “consent” to sex as 16 is the age of consent.
In the case of Clarkson v The Queen; EJA v The Queen [2011] VSCA 157, the Court of Appeal have resolved the issue as far as the Courts in Victoria are concerned.

And, what they have decided is, consent can not be a mitigating feature.  The lack of consent is an aggravating feature but consent is not a mitigating feature.

The Courts said the following;

3 The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation.

4 We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender).

5 Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.

6 Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases – for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner – the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.

7 At the other end of the scale, there are exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.

8 In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.”

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Date Published: 8 August 2011

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