Sexual Offences

Sexual penetration of child under the age of 16

A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

A person is guilty of the above offence
- if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 12.
Penalty: Level 2 imprisonment (25 years maximum); or
- if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 12 and 16 and under the care, supervision or authority of the accused.
Penalty: Level 4 imprisonment (15 years maximum); or
- in any other case of sexual penetration of a child between the ages of 12 and 16.
Penalty: Level 5 imprisonment (10 years maximum).

The above does not apply to an act of sexual penetration if
- the child is aged between 12 and 16; and
- the persons taking part in the act are married to each other.

Consent is not a defence unless at the time of the alleged offence the child was aged 12 or older and
- the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was
aged 16 or older; or
- the accused was not more than 2 years older than the child; or
- the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.

If consent is relevant, the prosecution bears the burden of proving lack of consent.

An accused who takes issue with a circumstance of aggravation and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.

A circumstance of aggravation
- is to be determined by the jury if the accused pleads not guilty to the offence; and
- is to be determined by the trial judge if the accused pleads guilty to the offence.

Indecent act with child under the age of 16

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.
Penality: Level 5 imprisonment (10 years maximum).

Consent is not a defence unless at the time of the alleged offence
- the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was
aged 16 or older; or
- the accused was not more than 2 years older than the child; or
- the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.

If consent is relevant, the prosecution bears the burden of proving lack of consent.

Persistent sexual abuse of child under the age of 16

A person who persistently sexually abuses a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.

To prove such an offence it is necessary to prove
- that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence; and
- that an act took place between the accused and the child on at least two other occasions during that period.

It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
Penalty: Level 2 imprisonment (25 years maximum).

Sexual penetration of 16 or 17 year old child

A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.
Penalty: Level 5 imprisonment (10 years maximum).

Consent is not a defence unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence the accused believed on reasonable grounds
- that the child was aged 18 or older; or
- that he or she was married to the child.

If consent is relevant, the prosecution bears the burden of proving lack of consent.

A child is under the care, supervision or authority of a person if the person is
- the child's teacher;
- the child's foster parent;
- the child's legal guardian;
- a minister of religion with pastoral responsibility for the child;
- the child's employer;
- the child's youth worker;
- the child's sports coach;
- the child's counsellor;
- the child's health professional;
- a member of the police force acting in the course of his or her duty in respect of the child;
- employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of his or her duty in respect of the child.

Indecent act with 16 or 17 year old child

A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.
Penalty: Level 6 imprisonment (5 years maximum).

Facilitating sexual offences against children

A person who in Victoria makes travel arrangements for another person or does or omits to do any other act that aids, facilitates or contributes to in any way whatever the commission by another person of such an offence is guilty of an indictable offence.
Penalty: Level 3 imprisonment (20 years maximum).

For a person to be guilty of the above the person
- must make the travel arrangements or do or omit to do the other act with a view to personal gain or gain for another person; and must
- intend that the conduct would aid, facilitate or contribute to the commission of an offence of the type committed by the other person; or
- be reckless as to whether or not the conduct would aid, facilitate or contribute to the commission of an offence of the type committed by the other person.

Sexual offences against persons with a cognitive impairment

Cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;

Sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services
A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not take part in an act of sexual penetration with that person.
Penalty: Level 5 imprisonment (10 years maximum).

A person who provides medical or therapeutic services to a person with a cognitive impairment who is not his or her spouse or domestic partner must not commit, or be in any way a party to the commission of, an indecent act with that person.
Penalty: Level 6 imprisonment (5 years maximum).

It is a defence to the charge for the accused to prove on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that the other person did not have a cognitive impairment.

Consent is not a defence unless the accused satisfies the court on the balance of probabilities that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds that he or she was the spouse or domestic partner of the other person.

If consent is relevant the prosecution bears the burden of proving lack of consent.

Sexual offences against persons with a cognitive impairment by workers

A worker at a facility must not take part in an act of sexual penetration with a person with a cognitive impairment who
- is residing at the facility or attending the facility to take part in a program specially designed to meet the developmental or educational needs of persons with a cognitive impairment; and
- is not his or her spouse or domestic partner.
Penalty: Level 5 imprisonment (10 years maximum).

A worker at a facility must not commit, or be in any way a party to the commission of, an indecent act with a person with a cognitive impairment who
- is residing at the facility or attending the facility to take part in a program specially designed to meet the developmental or educational needs of persons with a cognitive impairment; and
- is not his or her spouse or domestic partner.
Penalty: Level 6 imprisonment (5 years maximum).

Consent is not a defence unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence the accused believed on reasonable grounds that he or she was the spouse or domestic partner of the person residing at or attending the facility.

If consent is relevant, the prosecution bears the burden of proving lack of consent.

Procuring sexual penetration by threats or fraud

A person must not by threats or intimidation procure a person to take part in an act of sexual penetration.
Penalty: Level 5 imprisonment (10 years maximum).

A person must not by any fraudulent means procure a person to take part in an act of sexual penetration.
Penalty: Level 6 imprisonment (5 years maximum).

Procuring sexual penetration of a child

A person aged 18 years or more must not solicit or procure a child under the age of 16 years to take part in an act of sexual penetration, or an indecent act, outside marriage with him or her or another person.
Penalty: Level 5 imprisonment (10 years maximum).

A person aged 18 years or more must not solicit or procure another person to take part in an act of sexual penetration, or an indecent act, outside marriage with a child under the age of 16 years.
Penalty: Level 5 imprisonment (10 years maximum).

A person aged 18 years or more must not solicit or procure a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority to take part in an act of sexual penetration, or an indecent act, with him or her or another person.
Penalty: Level 5 imprisonment (10 years maximum).

Sexual offence while armed with an offensive weapon

A person who is found guilty of such an offence and who carried an offensive weapon when committing the offence is guilty of a summary offence.
Penalty: Level 7 imprisonment (2 years maximum).