The Law Handbook 2024

160 SECTION 3: Fines, infringements and criminal law Offences committed via electronic communication During the offences discussed above relating to a child under the age of 16 years, the child 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. Persistent abuse Under section 49J of the Crimes Act, it is an offence for a person to persistently sexually abuse a child under the age of 16 years. ‘Persistent abuse’ means the child has been abused on at least three occasions; the same sexual act does not need to occur on each occasion. This crime is punishable by up to 25 years’ imprisonment. Abduction Under section 49P of the Crimes Act, it is an offence for a person to abduct or detain, or cause the abduction or detention of, a child under the age of 16 years for a sexual purpose. This crime is punishable by up to 10 years’ imprisonment. People in positions of authority failing to protect children from sexual abuse Under section 49O of the Crimes Act, it is an offence for a person in a position of authority to fail to protect a child from a sexual offence if, due to their position within a relevant organisation, they have the power or responsibility to remove a substantial risk that a child under the age of 16 years will become a victim of a sexual offence, and: • they know there is a substantial risk that a person will commit an offence against a child; and • despite this they neglect or fail to reduce or remove the risk; and • the sexual offence is committed by a person over the age of 18 years who is also associated with the relevant organisation. Relevant organisations include religious bodies, schools, hospitals, and out-of-home care services (see s 49O Crimes Act for a complete list of relevant organisations). This crime is punishable by up to five years’ imprisonment. Mandatory reporting and failing to disclose A number of professionals (e.g. teachers) have a legal obligation to report sexual offences against young people to the authorities. Sexual offenders loitering near schools Under section 49N of the Crimes Act, it is an offence for a person who has been found guilty of a relevant offence to loiter at or near a school, or a children’s service centre, or an education and care service premises, or a public place that is regularly frequented by children and in which children are present. A relevant offence includes a sexual offence. The exception to this offence is if someone has a reasonable excuse (see s 49ZB Crimes Act). This offence does not require proof of a lack of purpose or unlawful purpose. To establish the element of loitering, it is enough that a person in the prohibited circumstances ‘hangs about’ or idles. Whether an offence is committed depends upon whether that person has reasonable excuse for doing so ( Director of Public Prosecutions v Rayment [2018] VSC 663, 97). This crime is punishable by up to five years’ imprisonment. Child abuse material (formerly known as ‘child pornography’) In 2016 in Victoria, the term ‘child pornography’ in our laws was replaced with ‘child abuse material’ to better reflect the true nature of this material and its harms. Child abuse material depicts or describes a person who is, or who appears to be, a child: • as a victim of torture, cruelty or physical abuse (this does not have to be sexual); or • as a victim of sexual abuse; or • engaging in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or • in the presence of another person who is engaging in, or apparently engaging in, a sexual pose or sexual activity. Child abuse material is also material that: • depicts or describes the genital or anal region of a person who is, or who appears to be, a child; or