Sexual Activity under Care Supervision or Authority

In Victoria it is a criminal offence to engage in sexual activity with a child aged 16 or 17 that is under your care, supervision, or authority. It is considered a serious crime by the Courts.

It is the breach of trust and the abuse of the accused’s position and power over the child that causes this to be a particularly serious sexual crime.

The charge of Sexual Assault of a Child aged 16 or 17 under Care, Supervision or Authority is set out in section 49E of the Crimes Act 1958.

In Victoria, the is considered a serious offence. The maximum penalty for this offence is 5 years’ imprisonment.

The charge of Sexual Penetration of a Child aged 16 or 17 under Care, Supervision or Authority is set out in section 49C of the Crimes Act 1958.

In Victoria, the is considered a serious offence. The maximum penalty for this offence is 10 years’ imprisonment.

In Victoria, it is against the law to sexually penetrate a child aged 16 or 17 years if the person was under your care, supervision, or authority.

Examples of an accused being in a position of care, supervision or authority are:

  • the child’s teacher;
  • the child’s employer;
  • the child’s youth worker;
  • the child’s sports coach;
  • the child’s counsellor;
  • the child’s health professional;
  • a person with parental responsibility within the meaning of the Children, Youth and Families Act 2005 for the child;
  • a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to the child or has authority over the child;
  • a police officer acting in the course of his or her duty in respect of the child; or
  • a person employed in, or providing services in, a remand centre, youth residential centre, youth training centre or prison and acting in the course of his or her duty in respect of the child.

To find a person guilty of Sexual Penetration of a Child aged 16 or 17 under Care, Supervision or Authority, the Prosecution must prove beyond reasonable doubt that the accused:

  • intentionally sexually penetrated the child; or
  • intentionally caused or allowed the child to sexually penetrate the accused; or
  • caused the child to sexually penetrate themselves, another person or be sexually penetrated by another person; and
  • further that, the child is aged 16 or 17 years; and
  • the child is under the accused’s care, supervision, or authority.

In relation to ‘sexual penetration’ this means that accused sexually penetrated the victim’s vagina, anus, or mouth with their penis or another object.

The Prosecution must prove that the child was aged 16 or 17 at the time the relevant act took place. This is specifically referred to in the Crimes Act 1958 s49C.

There are defences available to an accused charged with this offence.

Two defences often relied upon are:

  • the Crimes Act 1958 provides that a defence to an offence against section 49C(1) is if, at the time of the conduct, the accused reasonably believed that the child was 18 years of age or more; or

  • if the accused had a reasonable belief that the child was not under their care, supervision, or authority.

If you have been charged with sexual penetration of a child aged 16 or 17 years that was under your care, supervision, or authority, or you are being investigated for this crime, it is important that you contact Elizabeth McKinnon immediately to receive legal advice.

The consequences of a criminal record can change your life. It is critical that you engage an expert in criminal law, particularly an expert in sex cases.

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