The Law Handbook 2024

Chapter 3.3: Sexual offences 159 Each of these sexual performance crimes is punishable by up to 10 years’ imprisonment. Facilitating a sexual offence Under section 49S of the Crimes Act, it is an offence for a person to facilitate a sexual offence against a child under the age of 18 years for the purpose of obtaining a benefit. This crime is punishable by up to 20 years’ imprisonment. Offences committed via electronic communication During the offences discussed above relating to a 16- or 17-year-old child, the people involved may be present in person or via electronic communication received in or close to real time. One person must be in Victoria during the conduct. Defences Consent is not a defence to any of the crimes discussed above relating to children aged 16 or 17 years unless, at the time of the offence, the person: • reasonably believed that the child was aged 18 years or older (s 49W and 49X of Crimes Act); or • believed the child was legally married under the Marriage Act 1961 (Cth) (‘ Marriage Act ’) (see s 49Y, 49Z Crimes Act). Also, it is a defence to a sexual performance charge that, at the time of the offence, the child performing in a sexual performance was aged 12 years or older, and the other party reasonably believed that the child was aged 18 years or older (s 49X Crimes Act). Child aged under 16 years Sexual penetration of a child Under section 49A of the Crimes Act, it is an offence for a person to take part in, or cause another person to take part in, an act of sexual penetration of a child under the age of 12 years. This crime is punishable by up to 25 years’ imprisonment. Under section 49B of the Crimes Act, it is an offence for a person to take part in, or cause another person to take part in, an act of sexual penetration of a child under the age of 16 years. This crime is punishable by up to 15 years’ imprisonment. An exception to these two offences is if the conduct occurred during a procedure carried out in good faith for medical or hygienic purposes (s 49T). Sexual assault Under section 49D of the Crimes Act, it is an offence for a person to sexually assault a child under the age of 16 years, where they sexually touch a child, or cause another person to take part in sexually touching a child, and that touching is contrary to community standards of acceptable conduct. Whether the touching is contrary to these community standards depends on the circumstances (including the purpose of the touching, or what the person is seeking to gain from the touching). Circumstances do not include the child’s consent. This crime is punishable by up to 10 years’ imprisonment. Sexual activity in the presence of a child Under section 49F of the Crimes Act, it is an offence for a person to intentionally engage in sexual activity in the presence of a child under the age of 16 years. Under section 49H of the Crimes Act, it is an offence for a person to cause a child under the age of 16 years to be present during sexual activity. Each of these crimes is punishable by up to 10 years’ imprisonment. Encouraging sexual activity Under the Crimes Act (s 49K), it is an offence for an adult to encourage a child under the age of 16 years to engage in or be involved in sexual activity. This crime is punishable by up to 10 years’ imprisonment. Grooming Under section 49M of the Crimes Act, an adult is guilty of the offence of grooming a child under the age of 16 years for sexual conduct if they communicate by words or conduct with a child younger than 16 years (or with a person who cares for, supervises or has authority over the child) with the intention of facilitating the child’s engagement or involvement in a sexual offence with that person or another person aged 18 years or older. This crime is punishable by up to 10 years’ imprisonment.