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CRIMES ACT 1958 - SECT 49I

Causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity

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

        (a)     another person (B) engages in an activity; and

        (b)     the activity is sexual; and

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

        (d)     A intentionally causes or allows C to be present when B engages in the activity; and

        (e)     C is—

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

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

        (f)     A's causing or allowing C to be present when B engages in the activity 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 causing or allowing C to be present when B engages in the activity 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 B engaging in the activity or from the presence of C;

        (b)     the circumstances do not include—

              (i)     whether C consents—

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

    (B)     to B engaging in the activity; or

              (ii)     whether A believes that C consents—

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

    (B)     to B engaging in the activity.

    (5)     For the purposes of subsection (1), when B engages in an activity, C 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 C 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 C was in Victoria at the time at which that conduct occurred.

    (7)     It is immaterial that C 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 causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

S. 49J inserted by No. 47/2016 s. 16.



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