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Sexual Penetration of a Child Under 16

Have you been accused of Sexual Penetration of a Child Under 16 Years of Age? You should speak to one our lawyers as soon as you are able to do so. We will answer your important legal questions in confidence. We can advise you what your rights are when dealing with the Police.

Police interview for Sexual Penetration of a Child
There are many things you need to know during the Police investigation stage. If you do not know what to say, you risk harming your defence. Also, there may be evidence that needs to be protected. There might be people who need to be spoken to whom the Police did not speak to. It is important to turn your mind to these matters early.
 
Sexual penetration of a child under 16
Our lawyers can go with you to the Police interview to guide you through the process. The Police interview can be a very intimidating and upsetting experience. You want someone there who is on your side. You want someone there who is going to advise you of what you should or should not do.

Being accused of a sexual offence such as Sexual Penetration of a Child Under 16 Years of Age can be especially damaging. It can negatively impact your reputation, your employment, your ability to parent your children, and your ability to travel.

Pleading not guilty
If you are pleading not guilty to Sexual Penetration of a Child Under 16 Years of Age, call us to discuss a strategy with one of our experienced criminal lawyers. We are criminal defence lawyers who are experts in running jury trials.

It is important to consider the following questions, what will you tell the Police during the interview? Are there potential witnesses whom the Police have not considered speaking to? Is there relevant electronic evidence which needs to be gathered? Has the investigation been fairly done?

Pleading guilty
A finding of guilt for Sexual Penetration of a Child Under 16 Years will almost always lead to an immediate prison sentence and being placed on the Sex Offender Register for a long period of time (15 years or life depending on the allegations).

We are experienced in representing people who plead guilty to Sexual Penetration of a Child Under 16 Years of Age. We can prepare a plea strategy for you to get the best possible outcome. It is important in matters like this to get a psychological report, gather character references, and make sure that the sentencing Judge hears your story.
 
  • Contact an expert in charges of Sexual Penetration of a Child Under 16 Years on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
This is not the kind of charge that will be heard in the Magistrates’ Court. Sexual Penetration of a Child Under 16 is an indictable offence that carries a significant penalty.

This charge is likely to be heard in the higher courts. Any indictment or summons for this charge will generally be before a Judge in the County Court.
 
The statutory provisions
Penetration of a Child Under 16 when:

  • The accused took part in an act of sexual penetration with the complainant;
  • The accused intended to take part in that act of sexual penetration; and
  • The complainant was under the age of 16 at the time the sexual penetration took place.
Until 22 October 2014, the offence contained an additional element which states that for children aged between 12 and 16, the prosecution also had to prove that the child was not married to the accused. This was removed by section 5 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) and is no longer a requirement.

Legislation
The law for this offence can be found on section 49 B of the Crimes Act 1958:

Sexual penetration of a child under the age of 16
  1. A person (A) commits an offence if—
    1. A intentionally—
      1. sexually penetrates another person (B); or
      2. causes or allows B to sexually penetrate A; or
      3. causes B—
        1. to sexually penetrate themselves; or
        2. to sexually penetrate another person (C); or
        3. to be sexually penetrated by C; and
    2. B is a child under the age of 16 years.
  2. A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
  3. The standard sentence for an offence against subsection (1) is 6 years.1
The elements in detail
Sexual Penetration of a Child Under 16 has the following three elements, all of which the prosecution must prove beyond reasonable doubt:

The accused took part in an act of sexual penetration with the complainant

When the alleged penetration is by a penis, it may be of the vagina, anus, or the mouth of another person. When penetration is by a part of the body (a finger for example) or by some other object, it may be of the vagina or the anus, but not the mouth.

The accused’s body part or object does not need to have gone all the way into the other person’s vagina, anus or mouth, even slight penetration is enough. However mere touching of the relevant body part is not enough, there must have been actual penetration to some extent.2

Penetration only needs to have been slight or fleeting and does not need to have have been committed for the purposes of sexual gratification.3 If the accused is male, the prosecution is not required to prove that he ejaculated into the woman.

“Can the Prosecution prove that you sexually penetrated a child?”
Meaning of vagina

Vagina is defined by section 35 of the Act and includes the “external genitalia” as well as a “surgically constructed vagina.” Rape can therefore be committed against transsexuals.

The accused intended to take part in that act of sexual penetration

The second element that the prosecution must prove beyond reasonable doubt is that the sexual penetration was intentional.

The complainant was under the age of 16 at the time the sexual penetration took place

The Prosecution must establish that the occasions specified occurred during a period where the complainant was under 16 years of age.


[1] Australian legal Information Institute. “Crimes Act 1958 – Section 49B: Sexual penetration of a child under the age of 16.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49b.html (accessed June 22, 2020).
[2] See Anderson v R [2010] VSCA 108.
[3] R v Dunn 15/4/1992 CA NSW.

 
Possible defences: Sexual Penetration of a Child Under 16
Consent is not a defence to a charge under this section save for circumstances where the child was aged 12 or older at the time of the alleged offence.4 Consent is only available as a defence where:

  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 This belief is a matter which the accused must prove on the balance of probabilities. That is, the accused must prove that it is more likely than not that he or she believed on reasonable grounds that complainant was aged 16 years or over for consent to be available as a defence. That is, the accused must satisfy a jury that it is more likely than not that he or she believed, on reasonable grounds, that the complainant was 16 or over.
  2. the accused was not more than 2 years older than the child 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 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);5 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. The offence specified in section 49B does not apply if the child is between the ages of 12 and 16 and if the people taking part in sexual penetration were married to each other.
Importantly, sub-section 45(4)(4A) of the Act states that if consent is relevant, the prosecution carries the burden of proving the lack of consent.

Another defence that is often run in relation to Sexual Penetration of a Child Under 16 is a factual defence. Either the accused did not do it or it never happened. 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 depending on the particular circumstances of each case. These include false allegations, mistaken identity, duress and, importantly, the Prosecution bears the burden of proving matters alleged beyond reasonable doubt and in many cases they are not able to meet this burden.

In such cases of Sexual Penetration of a Child Under 16 Years, it is important that your defence team looks at inconsistencies that may arise in the different stages of the trial process. If you have been charged with an offence under this section or are being interviewed in relation to this offence, it is important that you seek advice from a criminal defence lawyer as soon as possible. A finding of guilty is likely to result in a sentence that involves an immediate term of imprisonment.

In a trial, the questions a judge will ask the jury to consider (when consent is in issue) are:

  1. Did the accused take part in an act of sexual penetration with the complainant?
    If yes, then he will ask question 2.
    If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
  2. Did the accused intend to take part in an act of sexual penetration with the complainant?
    If yes, then he will ask question 3.
    If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
  3. Was the complainant under the age of 16 at the time the act of sexual penetration took place?
    If yes, then he will ask question 4.
    If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
Consent is only relevant if you are satisfied that the defence has proven, on the balance of probabilities, both that:

  1. The accused believed that the complainant was aged 16 or older at the time the act of sexual penetration took place; and
  2. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.
If consent is relevant, the prosecution must prove, beyond reasonable doubt, that:

  1. The complainant did not consent to taking part in the act of sexual penetration; and
  2. The accused was aware that the complainant was not or might not be consenting. A judge will ask:
  1. Did the sexual penetration occur without the complainant’s consent?
    If yes, then he will ask question 5.
    If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
  2. At the time of sexual penetration, was the accused aware that the complainant was not consenting or that s/he might not be consenting?
    If yes, then the accused is guilty of Sexual Penetration of a Child Under 16 (so long as you also answered yes to questions 1, 2, 3 and 4).
    If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.

[4] Section 45(4) of the Act.
[5] Stannard v DPP [2010] VSCA 165.

 
The maximum penalty depends on the age of the child. If the child was under the age of 12, then the maximum prison term is 25 years. If under the care, supervision, or authority of the accused, the penalty is a maximum imprisonment of 15 years; and in any other circumstances, a maximum imprisonment for 10 years.
 
Sentencing in the higher courts
Sentencing Statistics Pie Chart for Sexual Penetration of a Child Aged Under 16 (Not Further Defined) in the Higher Courts 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.