s49E Sexual assault of a child aged 16 or 17

Sexual assault of a child aged 16 or 17 S 49 E – Have you been charged with sexual assault of a child aged 16 or 17 under care, supervision or authority? 

Sexual assault of a child under 16 or 17 S 49 E  – If you are in a position of care, supervision or authority over a child aged 16 or 17, then it is a serious crime if you sexually assault them. Whether or not they consent to sexual acts with you does not matter. If you are convicted, you will be given a custodial sentence. Now is the time that you need to call a lawyer – make sure you have someone to help with your defence.

Some questions to discuss with your lawyer are: what was the nature of your interaction with the complainant? Did you cause them to sexually touch you, themselves, another person or be touched by another person? What is the nature of your relationship with the child? What is the nature of the care, supervision or authority over the child and when did this relationship begin? Was there any previous relationship with the complainant and did this pre-date your current relationship? What is your age compared to that of the child?

The reason for some of the above questions are that if you are not more than five years older than the complainant; or were married to the complainant; or you were their domestic partner before you became their carer, supervisor or an authority over them, then these circumstances can be used in your defence.

A defence to this charge can also exist in the situation where you held a reasonable belief that the child was 18 years old or more; or that you were not more than 5 years older than the child; or that you were married to the child or in a domestic relationship that began before you were their carer, supervisor or an authority over them then this is also a defence.

Similarly, if you had a reasonable belief that the complainant was not under your care, supervision or authority then you can also use this in your defence.

Sexual assault of a child under 16 or 17 S 49 E  – The Offence

S 49 E of the Crimes Act 1958

The prosecution must prove:

1. The defendant took part in an act of sexual touching with the alleged victim;
2. The defendant intended to take part in that act of sexual touching;
3. The alleged victim was aged 16 or 17 and under your care, supervision or authority at the time the sexual touching took place.

Sexual assault of a child under 16 or 17 S 49 E  – The Maximum Penalty

Level 6 imprisonment being a maximum of 5 years.

Where Will My Case Be Heard

Sexual penetration of a child aged 16 or 17 under care, supervision or authority cases can only be heard in the County Court or Supreme Court of Victoria. 

Questions to Consider

What is the nature of your relationship with the complainant? Are you absolutely sure they were under your care, supervision or authority when the charged acts took place? Were you aware of the real age of the child involved? Did the sexual touching occur at all? If you are planning to plead guilty, what can you do to try to minimise your sentence?

What to do Next

You need to talk to a lawyer who is familiar with this kind of matter. You don’t want to be disadvantaged by not having the best possible advocate for you in court.

If you have been charged with sexual assault of a child aged 16 or 17 under care, supervision or authority then you should make an appointment to speak with one of our lawyers immediately. Our lawyers have hundreds of hours of courtroom experience they can use to your advantage.

The Legislation

Sexual assault of a child aged 16 or 17 under care, supervision or authority

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

(a)     A intentionally—

(i)     touches another person (B); or

(ii)     causes or allows B to touch A; or

(iii)     causes B—

(A)     to touch, or to continue to touch, themselves; or

(B)     to touch, or to continue to touch, another person (C); or

(C)     to be touched, or to continue to be touched, by C; and

(b)     B is—

(i)     a child aged 16 or 17 years; and

(ii)     under A’s care, supervision or authority; and

(c)     the touching is—

(i)     sexual; and

(ii)     contrary to community standards of acceptable conduct.

(2)     A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)     Whether or not the touching 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 touching; and

(ii)     whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b)     the circumstances do not include—

(i)     whether B consents to the touching; or

(ii)     whether A believes that B consents to the touching.

Notes

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

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

3     A mistaken but honest and reasonable belief that the touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

If you have been charged with sexual assault of a child under 16 you should make an appointment to speak with one of our sex offence lawyers immediately so that you can start organising your defence. 03 8644 7320

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