This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Sexual Penetration of a Child Aged 16 or 17
In Victoria, it is an offence for a person who has care, supervision or authority over a child aged 16 or 17 to take part in an act of sexual penetration with the child. This offence carries a maximum penalty of 10 years imprisonment. The offence of sexual penetration of 16 or 17-year-old child is contained in section 48 of the Crimes Act.
What is sexual penetration?
Section 35 of the Crimes Act defines “sexual penetration” as the introduction, to any extent, by a person of either:
- their penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; OR
- an object or part of his or her body (other than the penis) into the vagina or anys of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.
What must be proven?
To find a person guilty of sexual penetration of a 16 or 17-year-old child, the police must prove beyond a reasonable doubt that they:
- Took part in an act of sexual penetration with the victim;
- They intended to do so
- That the victim was 16 or 17 years of age;
- That they were not married with the victim; and
- That the victim was under theirr care, supervision or authority.
Section 48 of the Crimes Act expressly provides that a child is under someone’s care, supervision or authority if they are the child’s:
- Teacher
- Foster parent
- Legal guardian
- Minister of religion with pastoral responsibility for the child
- Employer
- Youth worker
- Sports coach
- Counsellor
- Health professional
This is not a complete list and the court will look at the circumstances of each case to determine whether or not the victim is under a person’s care, supervision or authority.
Possible Defences for Sexual Penetration of a Child 16 or 17
A person charged with this offence can defend the charge by arguing that:
- The victim consented and they believed on reasonable grounds that the victim was 18 or older; or
- They were married to the victim.
Which Court will Hear this Matter?
The matter is an indictable offence, meaning it is usually heard in the County Court. In some circumstances, it can be dealt with in Magistrates’ Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.