s49K Encouraging a child under the age of 16 to engage in sexual activity

Encouraging a child under the age of 16 to engage in sexual activity charges

Have you been charged with encouraging a child under the age of 16 to engage in, or be involved in, sexual activity?

Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity is a serious crime that carries a custodial sentence. You need to talk to a lawyer straight away about your circumstances.

Some questions to discuss with your lawyer are: Did you encourage a child under the age of 16 to engage in, or be involved in, sexual activity? The word ‘encourage’ here also can mean suggesting sexual activity, requesting sexual activity, urging sexual activity or demanding sexual activity, so with those definitions in mind, were you involved in any of these encouragements?

A reasonable belief that the child was over the age of 16 is a defence to this charge. What steps did you take to determine the age of the child?

After the implementation of the Electronic Transactions (Victoria) Act 2000, encouragements need not even be in person, but can also be via electronic communication – for example over Skype or by text message. Either you or the child must have been in Victoria for some part of the alleged encouragement.

It is also not necessary for the child to do what is encouraged or to do activity encouraged or to do it when you are present. It is enough that they have been encouraged by you.

It is however not an offence to attempt to encourage engagement or involvement in a sexual activity – the encouragement has to have been received and understood by the child.

The Offence

Section 49K of the Crimes Act 1958

The prosecution must prove:

1. The defendant is over the age of 18;
2. The defendant encouraged the alleged victim to engage in, or be involved in, a sexual activity;
3. That the activity was sexual;
4. That the alleged victim was under 16 years old at the time of the alleged offence.

The Maximum Penalty

Level 5 imprisonment being a maximum of 10 years

Where Will My Case Be Heard?

‘Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity’ cases can only be heard in the County Court of Supreme Court of Victoria.

Questions to Consider

Do you have a defence in relation to the available defence of having a reasonable belief that the child was over the age of 16? What was the nature of your interaction with the child? Did they receive and understand any encouragement to engage in, or be involved in, a sexual activity from you? If you are planning to plead guilty then what can you do to try to minimize your sentence?

What to do Next.

The most important next step for you is to retain the services of a lawyer who can assist you plan your defence, look at your particular circumstances and any evidence that you or the police might have that are relevant to your charges.

If you have been charged with encouraging a child under the age of 16 to engage in, or be involved in, sexual activity then you should contact us to make an appointment to discuss your charges. 03 8644 7320

The Legislation

Section 49K Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity

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

(a) A is 18 years of age or more; and

(b) A encourages another person (B) to engage in, or be involved in, an activity; and

(c) the activity is sexual; and

(d) B is a child under the age of 16 years; and

(e) A seeks or gets sexual arousal or sexual gratification from—

(i) the encouragement; or

(ii) the sexual activity that is encouraged.

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

(3) For the purposes of subsection (1) encouraging may be done—

(a) in person; or

(b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 .

(4) It is not necessary to prove—

(a) that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b) that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c) if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5) Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

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

(7) It is immaterial that B 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.

(8) In this section—

“encourage” includes suggest, request, urge and demand.

Notes

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

2 A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 49ZC.

If you have been charged with a child sex offence talk to one of our leading Melbourne Criminal Lawyers today. 03 8644 7320.