Sexual offences against children

The Crimes Act describes two age categories where sexual activity with a child (i.e. a person under the age of 18 years) is unlawful:

1 Child aged 16 to 17 years;

2 Child aged under 16 years.

Child aged 16 to 17 years

Sexual penetration of a child

Under section 49C of the Crimes Act, a person is guilty of sexual penetration of a 16- or 17-year-old child if they take part in sexual penetration with a child who is between the ages of 16 to 17 years, who they are not married to, and who is under their care, supervision or authority at the time of the act.

This crime is punishable by up to 10 years imprisonment.

Sexual assault

Under section 49E of the Crimes Act, a person is guilty of sexually assaulting a 16- or 17-year-old child who is under their care or authority if they touch, or cause another person to touch, the child in a way that is contrary to community standards of acceptable conduct. Whether the touching is contrary to these community standards depends on the circumstances. Circumstances include the purpose of the touching, or what the person is seeking to gain from the touching. Consent is not a circumstance. This crime is punishable by up to five years imprisonment.

Sexual activity in a child’s presence

It is an offence for a person to intentionally engage in sexual activity in the presence of a child who is 16 or 17 years who is under their care, supervision or authority (s 49G Crimes Act). It is an offence to cause a child who is 16 or 17 years to be present during sexual activity (s 49I Crimes Act). Each of these crimes is punishable by up to five years imprisonment.

Encouraging sexual activity

Under section 49L of the Crimes Act, it is an offence for an adult to encourage a child who is 16 or 17 years to engage in or be involved in sexual activity. This crime is punishable by up to five years imprisonment.

Sexual performance

Under section 49Q of the Crimes Act, it is an offence for a person to cause or allow a sexual performance by a child under the age of 18 years. The sexual performance occurs in circumstances that involve any person receiving a payment, reward or other benefit (whether before or after the performance).

Under section 49R of the Crimes Act, it is an offence to invite another person to take part in a sexual performance with a child under the age of 18 years when the invitation or offer involves any person receiving a payment, reward or other benefit (whether before or after the performance).

A “sexual performance” is a live performance (whether in person or by electronic communication) that is, or could reasonably be considered to be, for the sexual arousal or gratification of any person.

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 sexually engaging with the child reasonably believed that the child was in fact aged 18 years or older (see s 49W Crimes Act), or that they were 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 the above two offences is if the conduct occurred during a procedure carried out in good faith for medical or hygienic purposes (s 49T Crimes Act).

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 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.

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 section 49K of the Crimes Act, 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.

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 (s 49C Crimes Act).

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. (For more information, seeChild protection: reports and investigations” in The Children’s Court.)

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, murder, or an offence against the Sex Work Act 1994 (Vic) (see s 49ZB Crimes Act). This crime is punishable by up to five years imprisonment.

Child abuse material (“child pornography”)

Child abuse material (formerly known as child pornography) 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

depicts or describes the breast area of a person who is, or who appears or is implied to be, a female child; and

reasonable people would regard as being, in the circumstances, offensive.

“Material” is any film, audio, photography, printed material, image, computer game, text, electronic material, or any other thing of any kind (see s 51A Crimes Act).

Producing child abuse material

Under section 51B of the Crimes Act, a person is guilty of procuring (i.e. obtaining) a minor for child abuse material if they intentionally:

a invited, caused or offered a minor to be in any way concerned in, or procured a minor for, the making or producing of a film, photograph, publication or computer game; and

b that film, photograph, publication or computer game describes or depicts a person who is, or who appears to be, a minor engaging in sexual activity, or who is depicted in an indecent sexual manner or context.

This crime is punishable by up to 10 years imprisonment.

Under section 51C of the Crimes Act, a person is guilty of producing child abuse material if they:

a intentionally produce a film, print, photograph, recording, piece of writing, drawing or altering, reproducing or copying material; and

b the material is child abuse material.

This crime is punishable by up to 10 years imprisonment.

Possessing or accessing child abuse material

Under section 51G of the Crimes Act, it is an offence for a person to knowingly possess child abuse material. If the material is electronic, a person who controls access to the material is guilty of this offence. Also, a person does not have to have physical possession of the original material to be guilty of this offence.

Under section 51T of the Crimes Act, a defence to the crime of possessing child abuse material is if a person did not intentionally come into possession of the material, and when they became aware that they had, they took all reasonable steps to stop possessing the material.

Under section 51H of the Crimes Act, it is an offence for a person to access child abuse material. Accessing child abuse material includes viewing or displaying the material through an electronic medium.

Each of these crimes is punishable by up to 10 years imprisonment.

Distributing child abuse material

Under section 51D of the Crimes Act, it is an offence for a person to intentionally distribute child abuse material.

Under section 51E of the Crimes Act, it is an offence for a person to administer, or assist in the administration of, a website that they intend to be used (and is used) to deal with child abuse material.

Under section 51S of the Crimes Act, a defence to the crime of distributing child abuse material is that a person, on becoming aware that a website deals with child abuse material, took all reasonable steps to prevent any person from being able to use the website for that purpose. Reasonable steps include shutting down the website, modifying the operation of the site, and notifying the police or relevant regulatory authority.

Under section 51F of the Crimes Act, it is an offence for a person over the age of 18 years to encourage the use of a website to deal with child abuse material.

It does not matter whether some or all of the conduct constituting an offence occurred in Victoria, so long as the person using the website or the computer was in Victoria.

Each of these crimes is punishable by up to 10 years imprisonment.

Assisting someone to avoid arrest

Under section 51I of the Crimes Act, it is an offence for a person to provide information to someone to assist them to avoid arrest, or reduce the likelihood of being arrested, for committing one of the above offences relating to child abuse material.

Exceptions

Exceptions to the above offences relating to child abuse material are listed in sections 51J to 51T of the Crimes Act. Under section 51L of the Crimes Act, these exceptions only apply if:

the material was not produced with the involvement of a person who was, at the time of production, under the age of 18 years; and

the material possesses artistic merit; or

the material is of public benefit (i.e. the material is for a genuine medical, legal, scientific or educational purpose).

Under section 51M of the Crimes Act, no offence is committed if the person in the image is a child and the image depicts them alone (e.g. if a 15-year-old girl takes a photo of herself on her phone).

Under section 51N of the Crimes Act, it is not an offence if one person in an image is a child and the act depicted in that image is not punishable by imprisonment. And, the eldest person depicted in the image was no more than (or reasonably believed they were no more than) two years older than the youngest person depicted in the image.

Under section 51P of the Crimes Act, material depicting a child is not an offence if:

the child depicted in the material was aged 16 or 17 years at the time; and

the child was not under the care or supervision or authority of the person who made the material; and

the person who made the material was no more than two years older than the child; and

the person who made the material believed the child consented; and

the material does not depict an offence punishable by imprisonment; and

the person who made the material did not distribute the material to anyone other than to the child depicted.

Under section 51Q and 51R of the Crimes Act, material depicting a child is not an offence if, at the time an image was first made:

the child depicted in the image was 16 or 17 years; and

the child depicted in the image and the person who made the image were, or reasonably believed they were, legally married to one another under the Marriage Act; and

the child depicted in the image and the person who made the image were no more than two years apart in age.

Under section 51U of the Crimes Act, it is not a defence to a charge relating to child abuse material if a person was under a mistaken but honest and reasonable belief that reasonable people would not regard the child abuse material as being offensive in the circumstances.