Doogue + George

Sexual Penetration of a Child Under 16

Sexual penetration of a child under 16 years of age is commonly referred to as under-age sex. The Prosecution must prove beyond reasonable doubt that an accused sexually penetrated the complainant (the person making the allegation). Sexual penetration is defined by section 49B of the Crimes Act 1958 (Vic) (‘the Act’) as the introduction of a person’s penis, body part or object into another person’s vagina or anus. It also includes putting a penis into someone’s mouth.

The Statutory Provisions

This offence is governed by section 49B of the Act. A person commits sexual 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.

Jurisdictional limits: Sexual Penetration of a Child Under 16

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. 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. 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 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 object or body part 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.1

Penetration only needs to have been slight or fleeting and does not need to have have been committed for the purposes of sexual gratification.2 If the accused is male, the prosecution is not required to prove that there he ejaculated into the woman.

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.

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.3 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);4 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 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.

Sentencing Outcomes in the Higher Courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of sexual penetration of a child aged under 16 in the County and Supreme Courts. The sentencing outcomes and maximum penalties vary depending on the age of the child and the circumstances of the offending. The sentence received will also depend on the aggravating and mitigating circumstances of each particular case. These include things such as the offender’s background and prior criminal history.

Between 2009-10 and 2013-14, 260 people were sentenced for sexual penetration with a child aged 12 to 16. Of the 260 people sentenced:

  • 43% received a period of imprisonment
  • 19% received a wholly suspended period of imprisonment
  • 7% received a partially suspended sentence 7% received a form of a community based order

The most common length of imprisonment imposed was between 2 to less than 3 years with 39.8% sentenced within that range.

Between 2009-10 and 2013-14, 72 people were sentenced for sexual penetration with a child aged under 12. Of the 72 people sentenced:

  • 74% received a period of imprisonment
  • 13% received a wholly suspended period of imprisonment,
  • 3% received a partially suspended sentence
  • 3% received a form of a community based order

The most common length of imprisonment imposed was between 4 to less than 5 years with 38.8% sentenced within that range.

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.

Check out some of the criminal cases we’ve defended in court involving the charge of Sexual Penetration of a Child Under 16:



[1]See Anderson v R [2010] VSCA 108.
[2]R v Dunn 15/4/1992 CA NSW.
[3]Section 45(4) of the Act.
[4]Stannard v DPP [2010] VSCA 165.