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Persistent Sexual Abuse of a Child Under 16

persistent sexual abuse of a child under 16Persistent sexual abuse of a child under 16 is the section that covers a prosecution of a person that sexually abuses a child under the age of 16, whom that accused was not married to, on at least three occasions. Offences defined as sexual abuse in the Crimes Act 1958 (‘the Act’) are:

  • Rape
  • Sexual Assault (previously indecent assault)
  • Assault with Intent to Rape
  • Incest
  • Sexual Penetration of a child under 16
  • Indecent Act with a child under 16
  • Facilitating sexual offences against children.

The introduction of persistent sexual abuse of a child under 16 was to meet practical difficulties encountered in prosecuting child sexual offences. It may be the case that a child cannot give a date for an alleged incident. Or perhaps the complainant cannot come up with the precise detail of single events to their disadvantage if they are unable to recall particulars. Under this section, specific dates or exact circumstances of the conduct constituting the offence are not always required. What is required is that the complainant have reasonable particularity of the period during which the offences are alleged to have taken place and that at least three occasions can be recalled.1

It is important to note – this charge of persistent sexual abuse of a child under 16cannot be laid without the consent of the Director of Public Prosecutions.

The statutory provisions for Persistent Sexual Abuse of a Child Under 16

This offence is governed by section 49J of the Crimes Act 1958 (‘the Act’). A person commits persistent sexual abuse of a child under 16 by:

  • 1. A person who persistently sexually abuses a child under the age of 16 is guilty of an indictable offence.
  •  
  • 2. To prove an offence under subsection (1) it is necessary to prove—
     
    1. that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
       
    2. that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
       
  • 2A. It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
     
  • 3. It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).

*Please note the reference to Subdivision (8A) or (8B) refers to the offences in the dot point list of the first paragraph which are relevant to this offence.

Jurisdictional limits

jurisdictional limits persistent sexual abuse child under 16Persistent sexual abuse of a child under 16 is an indictable offence that carries a significant penalty. The offence carries a 25 year term of imprisonment as the highest possible sentence. As such, the charge is heard in the higher courts. Any indictment or summons for this charge will generally be heard by a Judge in the County Court.

Persistent Sexual Abuse of a Child Under 16: The elements

Persistent sexual abuse of child under the age of 16 has the following three elements, all of which the prosecution must prove beyond reasonable doubt:

  1. On at least three occasions the accused committed acts which would constitute an offence under a provision of Subdivisions 8A, 8B or 8C of the Crimes Act;
  2. These acts were committed against a child who was under the age of 16 at the time; and
  3. The accused was not married to the child at the relevant time.

Element 1 – On at least three occasions the accused committed acts which would constitute an offence under a provision of Subdivisions 8A, 8B or 8C of the Crimes Act;

As mentioned above, this charge was enacted to overcome problems that are said to often arise when a young child who has been the subject of repeated sexual abuse over a period of time is unable to identify which particular sexual acts occurred.2 Whilst a charge under this section reduces the specificity with which the relevant act must be proved, the Prosecution must clearly identify the evidence that is to be relied upon on each so called “occasion”.

A complainant cannot simply allege that a sexual offence happened on three occasions. Proof of the actual commission of the acts which constitute the specified sexual offence is required.3 Each occasion must have a distinguishing feature from the other, it is not sufficient for a complainant to say the accused “would normally do this” when recollecting on something that typically occurred in terms of the offending.4

It is also important to note that the sexual offence that occurred on the three separate occasions need not be the same type of offending, for example, it may be alleged that sexual penetration took place on one occasion and an indecent act on the next.

In essence, a complainant must still be able to account for occurrences surrounding each of the acts alleged in sufficient detail to identify each occasion.

Element 2 – These acts were committed against a child who was under the age of 16 at the time

The Prosecution must establish for a charge of persistent sexual abuse of a child under 16 that the occasions specified occurred during a period where the complainant was under 16 years of age. Whilst there is a lack of specificity that accompanies this charge, the complainant must be able to identify a time range. Often, specific events such as what class they were in school or where they resided at the time will assist in establishing the child’s age group. It is not uncommon for this charge to cover a large period of time, for instance, a complainant may allege that one occasion of sexual abuse occurred when they were between the ages of 7 and 13 years of age.

Element 3 – The accused was not married to the child at the relevant time.

A defence is available if the Accused is married to the victim.

In a trial, the questions a judge will ask the jury to consider (in regard to recklessness as the culpable factor) are:

  1. Was the complainant aged under 16 at [insert relevant dates]?
    If yes, then he will ask question 2.
    If no, then the accused is not guilty of persistent sexual abuse of a child.

     
  2. Has the prosecution proved that the accused was not married to the complainant during this period?
    If yes, then he will ask 3.
    If no, then the accused is not guilty of persistent sexual abuse of a child.

     
  3. Did the accused commit the offence[s] of [identify relevant sexual offence(s)] against the complainant on at least three occasions between [insert relevant dates]?
    (Consider – See separate document for the elements of [identify relevant sexual offence(s)])
     
    If yes, then the accused is guilty of persistent sexual abuse of a child (as long as you also answered yes to questions 1 and 2)
    If no, then the accused is not guilty of persistent sexual abuse of a child.

Possible defences

We have found that offences of a sexual nature are crimes in which, for a variety of reasons, innocent people are often wrongly charged. A number of defences are potentially available to a charge of persistent sexual abuse of a child under 16 depending on the particular circumstances of each case. These include false allegations, mistaken identity, duress and importantly, the Prosecution bear the burden of proving matters alleged beyond reasonable doubt.

In such cases of persistent sexual abuse of a child under 16 years, it is important that your defence team look at inconsistencies that may arise in the different stages of the trial process. If you have been charged with an offence under this section it is important that you seek advice from one of our lawyers as soon as you become aware. A finding of guilt is likely to result in a sentence that involves an immediate term of imprisonment as well as a mandatory placing on the sex offenders register for a significant period of time.

Sentencing outcomes in the higher courts for Persistent Sexual Abuse of a Child Under 16

The Sentencing Advisory Council has released sentencing statistics for the sentencing of persistent sexual abuse of a child aged under 16 in the County and Supreme Court’s between July 2010 to June 2015. Over the five year period, 53 sentences were handed down before the higher courts. 88.7% of people sentenced received a period of imprisonment, 1.9% received a wholly suspended period of imprisonment, 7.6% received a community corrections order and 1.9% a financial penalty.

The most common length of imprisonment imposed was between 8 and 9 years with 18% sentenced within that range.

Of course the sentence received will depend on the aggravating and mitigating circumstances of each particular case. These include things such as the offender’s background and prior criminal history as well as the circumstances of the sexual offending.

Please note that suspended sentences were abolished in the higher courts in 2013 therefore 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.



[1]Section 49J of the Act.
[2]R v Macfie [2000] VSCA 173.
[3]R v SLJ [2010] VSCA 16.
[4]Ibid.