s49H Causing a child under the age of 16 to be present during sexual activity

Have you been charged with causing a child under the age of 16 to be present during sexual activity?

Causing a child under the age of 16 to be present during sexual activity is a serious criminal charge. If you are convicted, then you will be given a custodial sentence. Speaking to a lawyer straight away is paramount, as you now have the opportunity to take some control in your defence.

Some questions to discuss with your lawyer are: Did you cause a child under the age of 16 to be present during sexual activity performed by a third person? This is not you – you weren’t doing the activity – you may have allowed or somehow made sure that a child was present while another person was doing the activity. Was this intentional?

After the implementation of the Electronic Transactions (Victoria) Act 2000, ‘presence’ also includes using an electronic means to transmit images of sexual activity in real time or close to real time – so for example through Facetime or Skype. The child can just be watching. Either or both you and the child have to have been in Victoria for some of the alleged offending.

If the child was over 12 and you had a reasonable belief the child was older than 16 then that reasonable belief is a defence, but you have to prove it is a ‘reasonable’ belief.

What is not a defence is if you had the mistaken but honest and reasonable belief that the activity was not sexual and not contrary to community standards, or if you had the mistaken but honest and reasonable belief that it was not contrary to community standards to have the child present at the time of the activity.

The Offence

Section 49 H of the Crimes Act 1958

The prosecution must prove:

1. A third person engaged in an activity;
2. The alleged victim was present at the time of the sexual activity;
3. The defendant caused the alleged victim the be present when the third person engaged in the activity;
4. The alleged victim is a child under the age of 16 years;
5. The activity that the defendant caused or allowed the alleged victim to be present for was either sexual or contrary to community standards of acceptable behaviour;

The Maximum Penalty

Level 5 imprisonment being a maximum of 10 years.

Where Will My Case Be Heard

Charges of causing a child under the age of 16 to be present during sexual activity can only be heard in the County Court or Supreme Court of Victoria.

Questions to Consider

Were you aware of the real age of the child involved? What steps did you take to ascertain the age of the child? What was the activity that the child was in the presence of? What was the purpose of the activity? If you are planning to plead guilty, what can you do to try to minimise your sentence?

What to do Next

Now is the time to make sure that you have a lawyer who can give you advice, help you prepare your evidence and discuss what is important to be addressed in this matter.

If you have been charged with sexual activity in the presence of a child under 16 you should make an appointment to speak with one of our lawyers so that you don’t have to deal with this alone.

Legislation

Section 49H Causing a child under the age of 16 to be present during sexual activity

(1) A person (A) commits an offence if—

(a) another person (B) engages in an activity; and

(b) the activity is sexual; and

(c) another person (C) is present when B engages in the activity; and

(d) A intentionally causes or allows C to be present when B engages in the activity; and

(e) C is a child under the age of 16 years; and

(f) A’s causing or allowing C to be present when B engages in the activity is contrary to community standards of acceptable conduct.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(2A) The standard sentence for an offence against subsection (1) is 4 years.

(3) Whether or not causing or allowing C to be present when B engages in the activity is contrary to community standards of acceptable conduct depends on the circumstances.

(4) For the purposes of subsection (3)—

(a) the circumstances include—

(i) the purpose of the activity; and

(ii) whether A seeks or gets sexual arousal or sexual gratification from B engaging in the activity or from the presence of C;

(b) the circumstances do not include—

(i) whether C consents—

(A) to being present when B engages in the activity; or

(B) to B engaging in the activity; or

(ii) whether A believes that C consents—

(A) to being present when B engages in the activity; or

(B) to B engaging in the activity.

(5) For the purposes of subsection (1), when B engages in an activity, C may be present—

(a) in person; or

(b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by C in real time or close to real time.

(6) It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as C was in Victoria at the time at which that conduct occurred.

(7) It is immaterial that C was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A was in Victoria at the time at which that conduct occurred.

Notes

1 An exception applies to this offence—see section 49U.

2 A defence applies to this offence—see section 49W.

3 A mistaken but honest and reasonable belief that the activity was not sexual or that causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

If you have been charged with a child sex offence contact one of our criminal lawyers immediately 03 8644 7320.