Victorian Current Acts

CRIMES ACT 1958 - SECT 49G

    (1)     A person (A) commits an offence if—

        (a)     A intentionally engages in an activity; and

        (b)     the activity is sexual; and

        (c)     another person (B) is present when A engages in the activity; and

        (d)     A knows that B is, or probably is, present when A engages in the activity; and

        (e)     B is—

              (i)     a child aged 16 or 17 years; and

              (ii)     under A's care, supervision or authority; and

        (f)     engaging in the activity in the presence of B is contrary to community standards of acceptable conduct.

    (2)     A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

    (3)     Whether or not engaging in the activity in the presence of B is contrary to community standards of acceptable conduct depends on the circumstances.

    (4)     For the purposes of subsection (3)—

        (a)     the circumstances include—

              (i)     the purpose of the activity; and

              (ii)     whether A seeks or gets sexual arousal or sexual gratification from engaging in the activity or from the presence of B;

        (b)     the circumstances do not include—

              (i)     whether B consents—

    (A)     to being present when A engages in the activity; or

    (B)     to A engaging in the activity; or

              (ii)     whether A believes that B consents—

    (A)     to being present when A engages in the activity; or

    (B)     to A engaging in the activity.

    (5)     For the purposes of subsection (1), when A engages in an activity, B may be present—

        (a)     in person; or

        (b)     by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by B in real time or close to real time.

    (6)     It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B was in Victoria at the time at which that conduct occurred.

    (7)     It is immaterial that B was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A was in Victoria at the time at which that conduct occurred.

Notes

1     An exception applies to this offence—see section 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and  49ZA.

3     A mistaken but honest and reasonable belief that the activity was not sexual or that engaging in the activity in the presence of B was not contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

S. 49H inserted by No. 47/2016 s. 16.