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Indecent Act With or In the Presence of a Child Under the Age of 16

indecent act with a child under 16Indecent act with a child under 16 can cover a wide variety of offending. This is because there are is such a wide range of behaviours that can be considered indecent. To be considered indecent, the act needs to have a sexual connotation, or the person’s purpose needs to have been sexual gratification.1 The offence came into force on 5 August 1991.

Statutory Provisions

Section 47 of the Crimes Act 1958 (Vic) (“the Act”) prohibits an indecent act with or in the presence of a child under the age of 16. Pursuant to section 47, an accused person commits this offence if they:

  1. Committed or were a party to the commission of the act;
  2. Wilfully;
  3. The act was indecent;
  4. The act was with or in the presence of the complainant; and
  5. The complainant was a child under the age of 16.

Consent is not a defence to the charge of indecent act unless:

  1. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older;2 or
  2. The accused was not more than 2 years older than the child;3 or
  3. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.4

Jurisdictional limits: Indecent Act With a Child Under 16

Indecent act with or in the presence of a child under the age of 16 will be heard by a judge and jury in the County Court or by a Magistrate in the Magistrates’ Court. That depends on the Magistrates’ Court considering it appropriate and the accused consenting.

In making this determination, the Magistrate will consider:

  1. the seriousness of the charge
  2. the adequacy of sentences available to the court (the maximum term of imprisonment that a Magistrate can impose for a single offence is two years imprisonment and the maximum aggregate (total) sentence that a Magistrate can impose is five years imprisonment)
  3. whether a co-accused is charged with the same offence
  4. any other matters the court considers relevant.5

Elements of Indecent Act With or In the Presence of a Child Under 16

There are five elements that constitute the offence. The prosecution must prove each of them ‘beyond reasonable doubt’ to prove their case against the accused person. If the prosecution is unable to do this, the accused is not guilty of the offence. As criminal lawyers we investigate cases and identify holes in the prosecution case, to show that one or more of the elements are not proven.

If the offence of indecent act with a child under 16 was alleged to have been committed before 22 October 2014, then there is a sixth element of the offence which relates to whether or not the accused and the complainant were married.

Element 1: The accused committed or was party to the commission of the act

The prosecution need not prove that the accused performed the physical act themselves to prove indecent act with or in the presence of a child under the age of 16. It is enough if they were ‘party to’ the act in some way. Whether or not an accused was ‘party to’ an act can be a complicated legal question.

 
Element 2: The accused did so wilfully

This element is focused upon the accused’s state of mind.

The accused must wilfully commit, or wilfully be a part to the commission of the indecent act with or in the presence of a child under the age of 16. It seems likely that the term ‘wilfully’ means intentionally.6

The question of whether the accused person must wilfully perform the indecent act, or wilfully perform the indecent act with or in the presence of a child, has not been judicially determined.7 As criminal defence lawyers we would argue that the prosecution must prove the latter scenario.

Element 3: The act was indecent

The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety,8 an affront to modesty,9 or an act which right-minded persons would consider to be contrary to community standards of decency.10 The test of indecency has remained broad because ‘indecent acts are as various as the human imagination’.11

In R v Harkin12 the court found that there needs to be a sexual connotation for an act to be indecent. However even where no objective sexual connotation arises from the act, if the offender’s purpose was sexual gratification, his or her intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.13

In Curtis v The Queen14 the accused had urged two complainants, each aged 14, to kiss. It was common ground that their participation was consensual. On appeal it was argued that there could be no act of indecency in two teenagers of the same age kissing each other. However the Court disagreed and found that it was open for the jury to decide that the indecency did not arise from the act of kissing but in the instigation of the act by a 24 year old man for own sexual gratification.

Indecent act covers sexual acts other than sexual penetration (which is rape).

Element 4: The accused committed the act with or in the presence of the complainant

‘With’
‘With’ takes the meaning of against or directed towards. It does not mean with the consent of.

Aside from a situation where the accused committed an indecent act by making physical contact with the other party, a person may also commit an act of indecency even though he or she plays a totally passive role. The English Court of Appeal upheld the conviction of an accused, when a girl of 8 put a hand on his penis and left it there for five minutes and he did nothing overtly to encourage the child. Such inactivity could amount to an invitation to continue and these circumstances constituted a positive act to make out the offence.15

‘In the presence of…’
There is no requirement that there be any physical contact between the accused and the victim at all. The words require the presence of the child in the proximity of the accused.16 In R v Coffey17 the accused requested the child to perform a strip dance down to his underpants and whilst the child performed, he fondled his penis. This constituted an indecent act in the presence of a child.

Element 5: The complainant was under the age of 16 years

The prosecution must establish that the conduct occurred when the complainant was under 16 years of age.

Possible defences: Indecent Act With a Child Under 16

Consent and belief that the complainant was older than 16
Consent is available as a defence where the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older.

Consent and married
The accused may also defend the allegations on the basis that they are married to the complainant, and the complainant consented. The accused must prove to the court, on the balance of probabilities, that they believed that they were married to the complainant at the time of the relevant conduct.

Consent and not more than 2 years older than the complainant
An accused may also defend the matter if they were no more than 2 years older than the complainant and the complainant consented.

If the age gap is in issue, generally the prosecution must prove beyond reasonable doubt either that there was no consent, or that the age gap is over 2 years.

An age difference of not more than 2 years is measured from the dates of birth of the complainant and the offender. The court does not round off the ages of the parties to the whole number of years.

For example, if, on the date of the offence of indecent act with a child under 16, the victim is aged 13 years and 5 months and the accused is aged 15 years and 6 months, the accused is more than 2 years older than the child and so consent is not a defence.18

Importantly, section 47(3) of the Act states that if consent is in dispute, the prosecution carries the burden of proving the lack of consent.

If the offence is alleged to have been committed before 1 December 2006, the defence does not need to prove (on balance) either that they believe they were married to the complainant or that they believed on reasonable grounds that the child was 16 or older. For pre-December 2006 offences, if there is an evidentiary basis to support either or both of these defences, then the prosecution must disprove the matter, beyond reasonable doubt.

Other defences for Indecent Act With a Child Under 16

Other defences include wrongful identification, mental impairment or duress.

We regularly come across matters where the complainant is lying. This can often be the case in historical matters where the complainant’s allegations surface years down the track often borne out of anger or revenge, sadly enough. In such a case where there is a factual dispute, the prosecution bear the burden of proving matters alleged beyond reasonable doubt.

In a trial for Indecent Act With a Child Under 16, the questions a judge will ask the jury to consider (when consent is in issue) are:19

  1. [Did the accused commit/Was the accused a party to the commission of] the alleged act?

    If yes, the jury will be asked to consider question 2.
    If no, then the accused is not guilty

  2. [Did the accused wilfully commit/Was the accused wilfully a party to] the act?

    If yes, the jury will be asked to consider question 3.
    If no, then the accused is not guilty

  3. Did the act occur in indecent circumstances?
    (Consider – sexual connotation)

    If yes, the jury will be asked to consider question 4.
    
If no, then the accused is not guilty

  4. Did the act take place [with/in the presence of] the complainant?

    If yes, the jury will be asked to consider question 5.
    
If no, then the accused is not guilty

  5. Was the complainant under the age of 16 at the time the act was committed?

    If yes, the jury will be asked to consider whether consent is relevant – see point 6, below.
    If no, then the accused is not guilty

Consent in a case of Indecent Act With a Child Under 16 is only relevant if:

  1. The defence has proven, on the balance of probabilities:
    1. The accused believed that the complainant was aged 16 or older at the time the indecent act took place; and
    2. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.
       
  2. The accused alleged that they are no more than 2 years older than the complainant, and the prosecution has not proven, beyond reasonable doubt, that there is an age gap of over 2 years; or
     
  3. The accused has proven, on the balance of probabilities, that they believed on reasonable grounds that they were married to the child.

If at least one of 6, 7 or 8 applies, then go to question 9.

If none of 6, 7 or 8 apply then the accused is guilty of committing the offence (as long as you answered yes to questions 1, 2, 3, 4 and 5).

If consent is relevant, you must further consider:

  1. Did the indecent act occur without the complainant’s consent?

    If yes, then go to 10.
    If no, the accused is not guilty of committing an indecent act with a child under 16 (as long as you are satisfied that at least one of the circumstances in question 6, 7 or 8 existed).

  2. At the time of alleged indecent act, was the accused aware that the complainant was not consenting or that they might not be consenting?

    If yes, then the accused is guilty of committing an indecent act with a child under 16 (as long as you answered yes to questions 1, 2, 3, 4, 5 and 9).
    If no, the accused is not guilty of committing an indecent act with a child under 16 (as long as you are satisfied that at least one of the circumstances in question 6, 7 or 8 existed).

Sentencing outcomes in the Magistrates’ court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of indecent act with child under 16 matters in the Magistrates’ Court between July 2011 to June 2014. Over the three year period, 271 cases were before the Court. 21.0% of people sentenced received a period of imprisonment, 15.1% received a wholly suspended period of imprisonment, 4.4% received a partially suspended sentence, 6.3% received a fine, and about 43.9% received some form of community based order.

The most common length of imprisonment imposed was between 12 and 18 months with 22.8% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

sentencing for indecent act with a child under 16The Sentencing Advisory Council has released sentencing statistics for the sentencing of indecent act with child under 16 matters in the County and Supreme Court’s between July 2009 to June 2014. Over the five year period, 1,697 cases were before the Court. 83.4% of people sentenced received a period of imprisonment, 5.4% received a wholly suspended period of imprisonment, 3.2% received a partially suspended sentence and about 6.2% received some form of community based order.

The most common length of imprisonment imposed was between 1 and 2 years with 46.6% sentenced within that range.

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore for all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

To view sentencing decisions by Victorian County Courts for sexual offences against children, visit this page.

Check out some of the criminal cases we’ve defended in court that involve the offence of Indecent Act With a Child Under 16:



[1]R v Harkin (1989) 38 A Crim R 296.
[2]Section 47(2)(a) of the Act.
[3]Section 47(2)(b) of the Act.
[4]Section 47(2)(c) of the Act.
[5]Section 29(2) of the Criminal Procedure Act 2009 (Vic).
[6]Criminal Charge Book, 7.3.4.2.1 – Bench Notes: Indecent Act with a Child under 16 (22 January 2016) Judicial College of Victoria: .
[7]Ibid.
[8]Above n 1.
[9]Crowe v Graham (1968) 121 CLR 375.
[10]DPP v Scott [2004] VSC 129; Curtis v The Queen [2011] VSCA 102.
[11]R v Coffey (2003) 6 VR 543 at 550.
[12](1989) 38 A Crim R 296.
[13]Above n 2.
[14][2011] VSCA 102.
[15]R v Speck (1977) 65 Cr App R 161 cited in Nash, Gerard, Bourke’s Criminal Law Victoria (LexisNexis Butterworths, 5th ed, 2005) 308. Please note that this is a guide only. This is an English case and therefore has no authority in our jurisdiction.
[16]Criminal Charge Book, 15.7.2 – With or in the presence of a child under the age of 16 (1 January 2011) Judicial College of Victoria: .
[17](2003) 6 VR 543.
[18]Criminal Charge Book, 15.6.2 – Consent (1 January 2011) Judicial College of Victoria: . Also see Stannard v DPP [2010] VSCA 165.
[19]This checklist is based on a checklist from the Judicial College of Victoria website. It only applies to offences allegedly committed after 22 October 2014. Criminal Charge Book, 7.3.4.2.4A – Checklist: Consent in Issue (Offences on or After 22 October 2014) (22 January 2016) Judicial College of Victoria: Also see Stannard v DPP [2010] VSCA 165.

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