Charges involving the sexual penetration of a child are among the most serious in Victorian criminal law. There are three separate offences, each covering a different age group. The law treats each differently, with distinct elements and different defences depending on the age of the child involved.

This guide explains all three charges, what the prosecution needs to prove in each case, and what defences may be available. If you are facing any of these charges, it is essential to obtain experienced legal advice as early as possible.

The three offences

All three offences are found in the Crimes Act 1958 (Vic) and came into force on 1 July 2017. If the alleged conduct occurred before that date, earlier versions of the law apply.

Sexual penetration of a child under 12 (section 49A)

This is the most serious of the three offences. It applies where the child was under 12 years of age at the time of the alleged conduct. There are very few defences available, any concept of consent cannot be applied to a child.

Sexual penetration of a child under 16 (section 49B)

This offence applies where the child was at least 12 but under 16. A broader range of defences is available, including a similarity in age defence and a defence based on a reasonable belief about the child’s age.

Sexual penetration of a 16 or 17 year old child (section 49C)

This offence applies where the child was 16 or 17 years old, but only where the child was under the accused’s care, supervision or authority. It recognises that while 16 is the general age of consent in Victoria, young people in this age group still need protection from those in positions of power or responsibility over them.

What does the prosecution need to prove?

For all three offences, the prosecution must prove that you intentionally engaged in an act of sexual penetration involving the child. This element covers three situations: you sexually penetrated the child; you caused or allowed the child to sexually penetrate you; or you caused the child to sexually penetrate themselves or another person, or to be sexually penetrated by another person.

The prosecution must also prove the relevant age element for the specific charge.

For the section 49C offence only, the prosecution must additionally prove that the child was under your care, supervision or authority at the time.

Care, supervision or authority — what does it mean?

The third element of the section 49C offence — that the child was under your care, supervision or authority — is central to that charge and deserves particular attention.

The law sets out a list of relationships where this element is taken to be satisfied. These include:

  • a parent or step-parent
  • a teacher
  • an employer
  • a youth worker
  • a sports coach
  • a counsellor
  • a health professional
  • a foster carer or person with parental responsibility
  • a religious or spiritual guide, or a leader of a church or religious body
  • a police officer acting in the course of their duty in respect of the child
  • a person employed in a remand centre, youth residential centre, youth training centre or prison and acting in the course of their duty in respect of the child

This list is not exhaustive. The law also covers situations where a person has assumed a practical position of care, supervision or authority over a young person, even if they do not hold a formal role. The purpose of this element is to protect 16 and 17 year olds from being taken advantage of by people who are in a position to influence them.

It does not matter whether the opportunity for the alleged sexual penetration arose directly out of the relationship, or whether the young person’s consent was influenced by the relationship. What matters is whether the relationship of care, supervision or authority existed at the time.

What are the defences?

The defences available depend on which charge you are facing.

For the under-12 offence (section 49A), the only defence would be that the penetration occurred for Medical or hygienic purposes. Consent is irrelevant. A mistaken but honest and reasonable belief that the child was 12 or older is specifically excluded as a defence. Marriage and domestic partnership are also not defences to this charge.

For the under-16 offence (section 49B):

  • Medical or hygienic purposes.
  • Similarity in age. This defence applies where the age difference between you and the child was two years or less, the child was at least 12 years old, and the child consented. The two-year calculation is based on your actual ages in months, not rounded years.
  • Reasonable belief as to age. This defence applies where the child was at least 12 years old and you had a genuine and reasonable belief that the child was 16 or older. You bear the burden of proving this on the balance of probabilities. Whether your belief was reasonable depends on all the circumstances, including any steps you took to find out the child’s age.

For the 16-or-17-year-old offence (section 49C):

  • Medical or hygienic purposes
  • Reasonable belief as to age. This defence applies if you reasonably believed the child was 18 or older at the time. You bear the burden of proving this on the balance of probabilities. The circumstances include any steps you took to find out their age.
  • Marriage or domestic partnership. This defence applies if you and the child were married at the time, or if you were their domestic partner and were not more than five years older than them, and the domestic partnership began before the child came under your care, supervision or authority.
  • Reasonable belief as to marriage or domestic partnership. A similar defence applies where you reasonably believed the above conditions existed, even if they did not.
  • Reasonable belief that the child was not under your care, supervision or authority. This is a relatively new defence. It applies if you reasonably believed at the time that the child was not under your care, supervision or authority. You bear the burden of proving this on the balance of probabilities.

How serious are these charges?

All three offences are serious charges heard in the County Court of Victoria. The under-12 offence carries the highest maximum penalty. The actual sentence imposed in any case will depend on a wide range of factors including the nature and duration of the alleged conduct, whether there was a position of trust involved, your personal circumstances, and whether you plead guilty.

Given the gravity of these charges, it is critical to get experienced legal advice as early as possible. The decisions you make in the early stages of a matter — including whether to participate in a police interview — can have a significant effect on the outcome.

What should you do if you have been charged?

If you have been charged or approached by police in connection with allegations of this kind:

  • Contact a criminal defence lawyer before participating in any interview or making any statement.
  • Do not contact the complainant or any potential witnesses.
  • Do not discuss the matter with anyone other than your lawyer.

Angus Cameron and Partners has significant experience defending serious sexual offence charges in Victoria. We can advise you on the strength of the case against you, the defences that may be available, and how best to approach your matter.

Frequently asked questions

What is the difference between the three charges?

The charges differ primarily by the age of the child. The under-12 offence is the most serious and offers almost no defences. The under-16 offence applies where the child was at least 12 but under 16, and offers more defences including a similarity in age defence. The 16-or-17-year-old offence is different again — it only applies where the child was under your care, supervision or authority, and recognises that 16 and 17 year olds are generally old enough to consent, but need extra protection from people in positions of power over them.

Does it matter if the child consented?

For the under-12 offence, consent is completely irrelevant. For the under-16 offence, consent is only relevant as part of the similarity in age defence, and only where the child was at least 12. For the 16-or-17-year-old offence, the fact of consent does not provide a defence on its own, because the offence is specifically about protecting young people from those in a position to influence or take advantage of them.

What if I genuinely did not know how old the person was?

For the under-12 offence, a mistaken belief about age is not a defence even if it was honest and reasonable. For the under-16 and 16-or-17 offences, a reasonable belief about age may provide a defence, but only if your belief was genuinely reasonable in all the circumstances, including any steps you took to find out their age.

Can I be charged for conduct that happened many years ago?

Yes. There is no statute of limitations for serious sexual offences in Victoria. Charges can be brought many years after the alleged conduct. The law that applies will be the version in force at the time of the alleged conduct, not the law at the time of the charge. Historical sexual allegations always involve specific issues which do not arise in other cases. If you are charges with historical sexual offences, it is vital that you contact an accredited criminal law specialist immediately.

What court will my case be heard in?

All three charges are indictable offences heard in the County Court of Victoria. The case will generally go through a committal proceeding in the Magistrates’ Court before being sent to the higher court for trial or plea. However, due to recent changes in the law, the committal process is very limited and you are not entitled to cross examine any witnesses during the Magistrates' Court proceedings.

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