CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2016 (NO. 47 OF 2016) - SECT 16 Division 1 of Part I of the Crimes Act 1958 amended

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CRIMES AMENDMENT (SEXUAL OFFENCES) ACT 2016 (NO. 47 OF 2016) - SECT 16

Division 1 of Part I of the Crimes Act 1958 amended

For Subdivisions (8B), (8C), (8D), (8E), (8EAA), (8EA) and (8F) of Division 1 of Part I of the Crimes Act 1958 substitute —

" (8B) Sexual offences against children

49A Sexual penetration of a child under the age of 12

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; or

(iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C); or

(b) B is a child under the age of 12 years.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

Notes

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

2 A mistaken but honest and reasonable belief that B was 12 years of age or more is not a defence to this offence—see section 49ZC.

49B Sexual penetration of a child under the age of 16

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; or

(iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C); or

(b) B is a child under the age of 16 years.

(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

Notes

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

2 Defences apply to this offence—see sections 49V and 49W.

49C Sexual penetration of a child aged 16 or 17 under care, supervision or authority

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; or

(iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C); or

(b) B is—

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

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

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Notes

1 Exceptions apply to this offence—see sections 49T and 49Y.

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

49D Sexual assault of a child under the age of 16

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

(a) A intentionally—

(i) touches another person (B); or

(ii) causes or allows B to touch A; or

(iii) causes B—

(A) to touch, or to continue to touch, themselves; or

(B) to touch, or to continue to touch, another person (C); or

(b) B is a child under the age of 16 years; and

(i) sexual; and

(ii) contrary to community standards of acceptable conduct.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) Whether or not the touching 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 touching; and

(ii) whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b) the circumstances do not include—

(i) whether B consents to the touching; or

(ii) whether A believes that B consents to the touching.

Notes

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

2 A defence applies to this offence—see section 49W.

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

49E Sexual assault of a child aged 16 or 17 under care, supervision or authority

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

(a) A intentionally—

(i) touches another person (B); or

(ii) causes or allows B to touch A; or

(iii) causes B—

(A) to touch, or to continue to touch, themselves; or

(B) to touch, or to continue to touch, another person (C); or

(b) B is—

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

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

(i) sexual; and

(ii) 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 the touching 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 touching; and

(ii) whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b) the circumstances do not include—

(i) whether B consents to the touching; or

(ii) whether A believes that B consents to the touching.

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 touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

49F Sexual activity in the presence of a child under the age of 16

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

(a) A intentionally engages in an activity; and

(b) the activity is sexual; and

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

(e) B is a child under the age of 16 years; 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 5 imprisonment (10 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 49U.

2 A defence applies to this offence—see section 49W.

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.

49G Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority

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

(a) A intentionally engages in an activity; and

(b) the activity is sexual; 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.

Notes

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

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

49H Causing a child under the age of 16 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

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

(e) C is a child under the age of 16 years; 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 5 imprisonment (10 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 49U.

2 A defence applies to this offence—see section 49W.

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.

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

(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.

Notes

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

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

49J Persistent sexual abuse of a child under the age of 16

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

(a) A sexually abuses another person (B) on at least 3 occasions during a particular period; and

(b) B is a child under the age of 16 years during the whole of that period.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.

(4) It is not necessary to prove conduct constituting sexual abuse with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that conduct instead of an offence against subsection (1).

(5) For the purposes of subsection (1), A sexually abuses B if A engages in conduct that would involve the commission by A of any of the following—

(a) an offence against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences);

(b) an offence against section 49A(1) (sexual penetration of a child under the age of 12);

(d) an offence against section 49D(1) (sexual assault of a child under the age of 16);

(e) an offence against section 49F(1) (sexual activity in the presence of a child under the age of 16);

(f) an offence against section 49H(1) (causing a child under the age of 16 to be present during sexual activity);

(g) an offence against a provision of Subdivision (8C) (incest).

(6) Nothing in this section affects the operation of any exception or defence applicable or available to A in respect of the offence constituting the sexual abuse.

(7) If, on the trial of A for an offence against subsection (1), the jury is not satisfied that A is guilty of that offence but is satisfied that A engaged in conduct during the particular period that constitutes one or more instances of an offence against a provision referred to in subsection (5)—

(a) the jury—

(i) must find A not guilty of the offence against subsection (1); and

(ii) may find A guilty of the one or more instances of an offence against a provision referred to in subsection (5); and

(b) A is liable to the penalty for any offence of which, in accordance with this subsection, A is found guilty.

(8) Subsection (7) does not restrict the operation of section 239 of the Criminal Procedure Act 2009 .

(9) A prosecution for an offence under subsection (1) must not be commenced without the consent of the Director of Public Prosecutions.

49K Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity

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

(a) A is 18 years of age or more; and

(b) A encourages another person (B) to engage in, or be involved in, an activity; and

(d) B is a child under the age of 16 years; and

(e) A seeks or gets sexual arousal or sexual gratification from—

(i) the encouragement; or

(ii) the sexual activity that is encouraged.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1) encouraging may be done—

(a) in person; or

(b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 .

(4) It is not necessary to prove—

(a) that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b) that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c) if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5) Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

(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.

(8) In this section—

"encourage" includes suggest, request, urge and demand.

Notes

1 A defence applies to this offence—see section 49W.

2 A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 49ZC.

49L Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity

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

(a) A is 18 years of age or more; and

(b) A encourages another person (B) to engage in, or be involved in, an activity; and

(d) B is—

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

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

(e) A seeks or gets sexual arousal or sexual gratification from—

(i) the encouragement; or

(ii) the sexual activity that is encouraged.

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

(3) For the purposes of subsection (1) encouraging may be done—

(a) in person; or

(b) by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 .

(4) It is not necessary to prove—

(a) that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b) that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c) if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5) Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

(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.

(8) In this section—

"encourage" includes suggest, request, urge and demand.

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 is not a defence to this offence—see section 49ZC.

49M Grooming for sexual conduct with a child under the age of 16

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

(a) A is 18 years of age or more; and

(b) A communicates, by words or conduct (whether or not a response is made to the communication), with—

(i) another person (B) who is a child under the age of 16 years; or

(ii) another person (C) under whose care, supervision or authority B is; and

(c) A intends that the communication facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) A does not intend to facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more if, were the conduct constituting the sexual offence to occur, A or the other person would satisfy an exception, or have a defence, to that sexual offence.

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

(5) It is immaterial that B or C was, or B and C were, 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 that conduct occurred.

(6) It is immaterial that A, B and C were all outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A intended that the sexual offence would occur in Victoria.

(7) In this section—

"communication" includes an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 ;

"sexual offence" means—

(a) an offence against a provision of Subdivision (8A), this Subdivision (other than section 49K(1) or this section), (8C), (8D), (8E), (8F) or (8FA); or

(b) an attempt to commit an offence covered by paragraph (a); or

49N Loitering near schools etc. by sexual offender

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

(a) A has been found guilty of a relevant offence; and

(b) A loiters at or near a place; and

(i) a school, a children's service centre or an education and care service premises; or

(ii) a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering; and

(d) A knows that the place is—

(i) a school, a children's service centre or an education and care service premises; or

(ii) a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering.

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

(3) In this section—

"children's services centre "means a place at which a children's service within the meaning of the Children's Services Act 1996 operates;

"education and care service premises "means a place at which an education and care service (other than a family day care service) within the meaning of the Education and Care Services National Law (Victoria) educates or cares for children;

"relevant offence" means—

(a) a sexual offence; or

(b) murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or

(i) section 5, 6, 7 or 11 of the Sex Work Act 1994 ; or

(ii) section 6, 7, 8 or 9 of the Prostitution Regulation Act 1986 ; or

(iii) section 59(1)(a) or (b) or 60 inserted in this Act on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 ; or

(iv) section 19 of the Summary Offences Act 1966 ; or

(v) any of the following provisions as in force at any time before its repeal—

(A) section 60A of the Classification of Films and Publications Act 1990 ;

(B) section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 ;

(vi) a provision referred to in paragraphs (dam), (dama) or (dan) of clause 1 of Schedule 1 to the Sentencing Act 1991 or of attempting to commit an offence against a provision referred to in paragraph (dama); or

(vii) section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) or of attempting to commit an offence against section 51C(1);

"sexual offence" means—

(a) an offence against section 38(1), 39(1), 40(1), 41(1), 47(1), 48(1), 49A(1), 49B(1), 49C(1), 49D(1), 49E(1), 49F(1), 49G(1), 49H(1), 49I(1), 49J(1), 49O(1), 50C(1), 50D(1) or 50F(1); or

(b) an offence against a provision referred to in clause 7A, 7B, 8, 9, 10, 11A 11B, 11D(b), 11D(c), 11D(d), 11D(g), 11D(h), 11E, 11F or 12 of Schedule 8; or

(c) an offence against section 44(1), (2) or (4) (incest) as inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016 ; or

(d) an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b) or (c).

(4) If A has at any time been found guilty of an offence against a law of another State or a Territory of the Commonwealth which creates an offence substantially similar to a sexual offence, that finding of guilt must be taken for the purposes of this section to be a finding of guilt of a sexual offence.

Note

An exception applies to this offence—see section 49ZB.

49O Failure by a person in authority to protect a child from a sexual offence

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

(a) A occupies a position within, or in relation to, a relevant organisation; and

(b) there is a substantial risk that a relevant child will become the victim of a sexual offence committed by another person who is—

(i) 18 years of age or more; and

(ii) a person associated with the relevant organisation; and

(d) A, by reason of A's position, has the power or responsibility to reduce or remove that risk; and

(e) A negligently fails to reduce or remove that risk.

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

(3) For the purposes of subsection (1), a person negligently fails to reduce or remove a risk if that failure involves a great falling short of the standard of care that a reasonable person would exercise in the circumstances.

(4) For the avoidance of doubt, in a prosecution for an offence against subsection (1), it is not necessary to prove that a sexual offence has been committed.

(5) It is immaterial that some or all of the circumstances constituting an offence against subsection (1) occurred outside Victoria, so long as the relevant child was in Victoria at any time while the substantial risk referred to in subsection (1)(b) existed.

(6) It is immaterial that both A and the relevant child were outside Victoria at the time at which some or all of the circumstances constituting an offence against subsection (1) occurred, so long as the sexual offence was at risk of occurring in Victoria.

(7) In this section—

"person associated", in relation to a relevant organisation, includes but is not limited to a person who is an officer, employee, manager, owner, volunteer, contractor or agent of the organisation but does not include a person only because the person receives services from the organisation;

"relevant child" means a child (whether identifiable or not) under the age of 16 years who is, or may come, under the care, supervision or authority of a relevant organisation;

"relevant organisation" means—

(a) an organisation that exercises care, supervision or authority over children, whether as its primary function or otherwise, and includes but is not limited to—

(i) a church; and

(ii) a religious body; and

(iii) a school; and

(iv) an education and care service within the meaning of the Education and Care Services National Law (Victoria); and

(v) a children's service within the meaning of the Children's Services Act 1996 ; and

(vi) an out of home care service within the meaning of the Children, Youth and Families Act 2005 ; and

(vii) a hospital; and

(viii) a government department; and

(ix) a government agency; and

(x) a municipal council; and

(xi) a public sector body; and

(xii) a sporting group; and

(xiii) a youth organisation; and

(xiv) a charity or benevolent organisation; or

(b) an organisation that, in accordance with an agreement or arrangement with an organisation referred to in paragraph (a), is required or permitted to engage in activities associated with the care, supervision or authority over children exercised by the organisation referred to in paragraph (a);

"sexual offence" means—

(a) an offence against a provision of Subdivision (8A), this Subdivision (other than this section), (8C), (8D), (8E), (8F) or (8FA); or

(b) an attempt to commit an offence covered by paragraph (a) (other than section 49K); or

49P Abduction or detention of a child under the age of 16 for a sexual purpose

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

(a) A—

(i) takes away or detains another person (B); or

(ii) causes B to be taken away or detained by another person; and

(b) B is a child under the age of 16 years; and

(d) A knows that—

(i) B is a child under the age of 16 years; or

(ii) B is probably a child under the age of 16 years; and

(e) A knows that—

(i) C does not consent to B being taken away or detained; or

(ii) C probably does not consent to B being taken away or detained; and

(f) A intends B will take part in a sexual act with A or another person or both; and

(g) B taking part in the sexual act would involve the commission by A, or the other person, or both, of an offence against section 38(1), 39(1), 40(1), 41(1) or a provision of this Subdivision (other than this section).

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Note

See section 35C for the meaning of taking part in a sexual act.

49Q Causing or allowing a sexual performance involving a child

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

(a) A intentionally causes or allows another person (B) to take part in a sexual performance; and

(b) the sexual performance occurs in circumstances that involve any person receiving payment, reward or other benefit (whether before or after the performance) in respect of the performance; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) In this section—

"sexual performance" means a live performance (whether in person or by an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 ) that is, or could reasonably be considered to be, for the sexual arousal or sexual gratification of any person.

Notes

1 A defence applies to this offence—see section 49X.

2 A mistaken but honest and reasonable belief that the sexual performance did not occur in circumstances that involved payment, reward or other benefit to any person is not a defence to this offence—see section 49ZC.

49R Inviting or offering a sexual performance involving a child

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

(a) A intentionally—

(i) invites another person (B) to take part in a sexual performance; or

(ii) offers to a third person that B will take part in a sexual performance; and

(b) the invitation or offer involves any person receiving payment, reward or other benefit (whether before or after the performance) in respect of the performance; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) In this section—

Notes

1 A defence applies to this offence—see section 49X.

2 A mistaken but honest and reasonable belief that the invitation or offer did not involve payment, reward or other benefit to any person is not a defence to this offence—see section 49ZC.

49S Facilitating a sexual offence against a child

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

(a) A engages in conduct that aids, facilitates or contributes in any way to another person (B) engaging in sexual conduct (whether or not in Victoria) in relation to a child; and

(b) A engages in the conduct with the intention of obtaining a benefit for A or another person (C); and

(i) intends that the conduct will aid, facilitate or contribute in any way to B engaging in sexual conduct in relation to a child; or

(ii) knows that the conduct will, or probably will, aid, facilitate or contribute in any way to B engaging in sexual conduct in relation to a child; and

(d) B's engaging in sexual conduct in relation to a child—

(i) constitutes an offence against section 38(1), 39(1), 40(1), 41(1) or a provision of this Subdivision (other than this section); or

(ii) constitutes an offence against a provision of Division 272 of Chapter 8 of the Criminal Code of the Commonwealth; or

(iii) takes place outside Victoria but would, if the conduct occurred in Victoria, constitute an offence against a provision covered by subparagraph (i) whether or not it constitutes an offence in the place in which it takes place.

(2) A person who commits an offence against subsection (1) is liable to level 3 imprisonment (20 years maximum).

(3) For the purposes of subsection (1), conduct that aids, facilitates or contributes in any way to another person engaging in sexual conduct in relation to a child includes—

(a) making travel arrangements; and

(b) causing or allowing a child to enter or remain on premises which A owns, occupies, manages or assists in managing.

Note

A mistaken but honest and reasonable belief that B's engaging in sexual conduct in relation to a child did not constitute an offence or, if the conduct takes place outside Victoria, would not constitute an offence, is not a defence to this offence—see section 49ZC.

49T Exception to sexual penetration offences—medical or hygienic purposes

A does not commit an offence against section 49A(1), 49B(1) or 49C(1) if A's conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes.

Note

The reference to A in this section is a reference to the same A referred to in sections 49A, 49B and 49C.

49U Exceptions to offences against children under 16—similarity in age

(1) A does not commit an offence against section 49D(1) or 49F(1) if, at the time at which the offence is alleged to have been committed—

(a) A is not more than 2 years older than B; and

(b) B is 12 years of age or more.

(2) A does not commit an offence against section 49H(1) if, at the time at which the offence is alleged to have been committed—

(a) A is not more than 2 years older than C; and

(b) C is 12 years of age or more.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49D, 49F and 49H.

49V Defence to offence against a child under 16—similarity in age

It is a defence to a charge for an offence against section 49B(1) if, at the time of the conduct constituting the offence—

(a) A was not more than 2 years older than B; and

(b) B was 12 years of age or more; and

Note

References to A and B in this section are references to the same A and B referred to in section 49B.

49W Defences to offences against children under 16—reasonable belief as to age

(1) It is a defence to a charge for an offence against section 49B(1), 49D(1) or 49F(1) if, at the time of the conduct constituting the offence—

(a) B was 12 years of age or more; and

(b) A reasonably believed that B was 16 years of age or more.

(2) It is a defence to a charge for an offence against section 49H(1) if, at the time of the conduct constituting the offence—

(a) C was 12 years of age or more; and

(b) A reasonably believed that C was 16 years of age or more.

(3) It is a defence to a charge for an offence against section 49K(1) if, at the time of the conduct constituting the offence, A reasonably believed that B was 16 years of age or more.

(4) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(b), (2)(b) or (3).

Notes

1 References to A, B and C in this section are references to the same A, B and C referred to in sections 49B, 49D, 49F, 49H and 49K.

2 Whether or not A reasonably believed that B or C was 16 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out B or C's age.

3 An evidential burden applies to the matters referred to in subsections (1)(a) and (2)(a).

49X Defences to offences against children aged 16 or 17 or under 18—reasonable belief as to age

(1) It is a defence to a charge for an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time of the conduct constituting the offence, A reasonably believed that B was 18 years of age or more.

(2) It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence, A reasonably believed that C was 18 years of age or more.

(3) It is a defence to a charge for an offence against section 49Q(1) or 49R(1) if, at the time of the conduct constituting the offence—

(a) B was 12 years of age or more; and

(b) A reasonably believed that B was 18 years of age or more.

(4) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1), (2) or (3)(b).

Notes

1 References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I, 49L, 49Q and 49R.

2 Whether or not A reasonably believed that B or C was 18 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out B or C's age.

3 An evidential burden applies to the matter referred to in subsection (3)(a).

49Y Exceptions to offences against children aged 16 or 17—marriage or domestic partnership

(1) A does not commit an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time at which the offence is alleged to have been committed—

(a) A and B are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A—

(i) is not more than 5 years older than B; and

(ii) is B's domestic partner and the domestic partnership commenced before B came under A's care, supervision or authority.

(2) A does not commit an offence against section 49I(1) if, at the time at which the offence is alleged to have been committed—

(a) A and C are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A—

(i) is not more than 5 years older than C; and

(ii) is C's domestic partner and the domestic partnership commenced before C came under A's care, supervision or authority.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

49Z Defences to offences against children aged 16 or 17—reasonable belief as to marriage or domestic partnership

(1) It is a defence to a charge for an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time of the conduct constituting the offence—

(a) A reasonably believed that A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A—

(i) was not more than 5 years older than B; and

(ii) reasonably believed that A was B's domestic partner and that the domestic partnership commenced before B came under A's care, supervision or authority.

(2) It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence—

(a) A reasonably believed that A and C were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A—

(i) was not more than 5 years older than C; and

(ii) reasonably believed that A was C's domestic partner and that the domestic partnership commenced before C came under A's care, supervision or authority.

(3) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(a) or (b)(ii) or (2)(a) or (b)(ii).

Notes

1 References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

2 An evidential burden applies to the matters referred to in subsections (1)(b)(i) and (2)(b)(i).

49ZA Defences to offences against children aged 16 or 17—reasonable belief as to care, supervision or authority

(2) It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence, A reasonably believed that C was not under A's care, supervision or authority.

(3) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1) or (2).

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

49ZB Exception to loitering offence

A does not commit an offence against section 49N(1) if A has a reasonable excuse for loitering at or near a place referred to in section 49N(1)(c).

Note

The reference to A in this section is a reference to the same A referred to in section 49N.

49ZC No defence of mistaken but honest and reasonable belief of certain matters

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a) for an offence against section 49A(1)—B was 12 years of age or more; or

(b) for an offence against section 49D(1) or 49E(1)—the touching was not—

(i) sexual; or

(ii) contrary to community standards of acceptable conduct; or

(i) the activity was not sexual; or

(ii) engaging in the activity in the presence of B was not contrary to community standards of acceptable conduct; or

(d) for an offence against section 49H(1) or 49I(1)—

(i) the activity was not sexual; or

(ii) A's causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct; or

(e) for an offence against section 49K(1) or 49L(1)—the activity was not sexual; or

(f) for an offence against section 49Q(1)—the sexual performance did not occur in circumstances that involved payment, reward or other benefit to any person in respect of the performance; or

(g) for an offence against section 49R(1)—the invitation or offer did not involve payment, reward or other benefit to any person in respect of the performance; or

(h) for an offence against section 49S(1)—B's engaging in sexual conduct in relation to a child did not constitute an offence or, if the conduct takes place outside Victoria, would not constitute an offence.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49A, 49D, 49E, 49F, 49G, 49H, 49I, 49K, 49L, 49Q, 49R and 49S.

(8C) Incest

50A Definitions

In this Subdivision—

"child", in relation to a person, means—

(a) the person's child by birth; or

(b) the person's genetic child; or

(d) the person's child by operation of the Status of Children Act 1974 ;

"half-sibling", in relation to a person, means a person who shares a common parent with the person;

"lineal ancestor", in relation to a person, means a lineal ancestor of the person's parent;

"lineal descendant", in relation to a person, means a lineal descendant of the person's child;

"parent", in relation to a person, means—

(a) the person's birth parent; or

(b) the person's genetic parent; or

(d) the person's parent by operation of the Status of Children Act 1974 ;

"sibling", in relation to a person, means a person who has the same parents as the person;

"step-parent", in relation to a person, means the spouse or domestic partner of the person's parent, being a person who is not the person's parent.

50B Rebuttable presumption as to family relationship

In a proceeding for an offence against a provision of this Subdivision, there is a rebuttable presumption that—

(a) A knows that A is related to B in the way alleged; and

(b) people who are reputed to be related to each other in a particular way are in fact related in that way.

50C Sexual penetration of a child or lineal descendant

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; and

(b) B is A's child or lineal descendant; and

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

Notes

1 An exception applies to this offence—see section 50G.

2 A defence applies to this offence—see section 50H.

3 B's consent is not a defence to this offence—see section 50K.

50D Sexual penetration of a step-child

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; and

(b) B is a child or lineal descendant of A's spouse or domestic partner; and

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

Notes

1 Exceptions apply to this offence—see sections 50G and 50I.

2 A defence applies to this offence—see section 50H.

3 B's consent is not a defence to this offence—see section 50K.

50E Sexual penetration of a parent, lineal ancestor or step-parent

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; and

(b) A is 18 years of age or more; and

(d) A knows that B is A's parent, lineal ancestor or step-parent.

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

Notes

1 Exceptions apply to this offence—see sections 50G and 50J.

2 A defence applies to this offence—see section 50H.

3 B's consent is not a defence to this offence—see section 50K.

50F Sexual penetration of a sibling or half-sibling

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; and

(b) B is A's sibling or half-sibling; and

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

Notes

1 An exception applies to this offence—see section 50G.

2 A defence applies to this offence—see section 50H.

3 B's consent is not a defence to this offence—see section 50K.

50G Exception—medical or hygienic purposes

A does not commit an offence against a provision of this Subdivision if A's conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

50H Defence—accused did not consent

It is a defence to a charge for an offence against a provision of this Subdivision if A did not consent to the conduct constituting the offence.

Notes

1 The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

2 A person may intentionally engage in conduct but not consent to it—see section 36(2). For example, B threatens to hurt A if A does not allow B to sexually penetrate A. A intentionally allows B to sexually penetrate A because A is afraid of harm. A did not consent to the conduct constituting the offence.

50I Exception to offences against section 50D

A does not commit an offence against section 50D(1) if, at the time at which the offence is alleged to have been committed—

(a) B is 18 years of age or more; and

(b) A has not engaged in sexual activity with B when B was under 18 years of age; and

Note

References to A and B in this section are references to the same A and B referred to in section 50D.

50J Exceptions to offences against section 50E

(1) A does not commit an offence against section 50E(1) if, at the time at which the offence is alleged to have been committed—

(a) B is A's step-parent; and

(b) A has not at any time been under B's care, supervision or authority.

(2) A does not commit an offence against section 50E(1) if B engaged in sexual activity with A when A was under 18 years of age.

Note

References to A and B in this section are references to the same A and B referred to in section 50E.

50K Consent not a defence

It is not a defence to a charge for an offence against a provision of this Subdivision that B consented to the conduct constituting the offence.

Note

The reference to B in this section is a reference to the same B referred to in the offence provisions in this Subdivision.

(8D) Child abuse material

51A Definitions

(1) In this Subdivision—

"administer", in relation to a website, includes building, developing and maintaining the website but does not include hosting the website;

"authorised classifier "means a person, or a person who belongs to a class of person, prescribed by the regulations for the purposes of this definition;

"child" means a person under the age of 18 years;

"child abuse material" means material that—

(a) depicts or describes—

(i) a person who is, or who appears or is implied to be, a child—

(A) as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or

(B) as a victim of sexual abuse; or

(C) engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or

(D) in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or

(ii) the genital or anal region
of a person who is, or who appears or is implied to be, a child; or

(iii) the breast area of a person who is, or who appears or is implied to be, a female child; and

(b) reasonable persons would regard as being, in the circumstances, offensive;

"child abuse material disposal order" means an order made under section 51X(1);

"child abuse material offence "means an offence against a provision of this Subdivision;

"classified" means classified under the Commonwealth Act;

"Commonwealth Act" means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth;

"deal", in relation to child abuse material, includes any of the following—

(a) viewing, uploading or downloading child abuse material;

(b) making child abuse material available for viewing, uploading or downloading;

"electronic material" includes data from which text, images or sound may be generated;

"encourage" includes suggest, request, urge and demand;

"law enforcement agency" means—

(a) Victoria Police or the police force or police service of any other State or of the Northern Territory of Australia; or

(b) the Australian Federal Police; or

(d) any other authority or person responsible for the enforcement of the laws of—

(i) Victoria or any other State; or

(ii) the Commonwealth; or

(iii) the Australian Capital Territory; or

(iv) the Northern Territory of Australia;

"material" means—

(a) any film, audio, photograph, printed matter, image, computer game or text; or

(b) any electronic material; or

Note

51B Involving a child in the production of child abuse material

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

(a) A intentionally involves another person (B) in the production of material; and

(b) B is a child; and

(d) the material is child abuse material; and

(e) A knows that the material is, or probably is, child abuse material.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1), the ways in which A involves B in the production of material may include—

(a) inviting or encouraging B to be involved, or offering B to be involved, in the production of the material; or

(b) causing or allowing B to be involved in the production of the material; or

Notes

1 B need not be described or depicted in the material.

2 Exceptions apply to this offence—see sections 51J, 51K and 51M.

3 Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q and 51R.

4 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51C Producing child abuse material

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

(a) A intentionally produces material; and

(b) the material is child abuse material; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1), the ways in which material is produced may include—

(a) filming, printing, photographing, recording, writing, drawing or otherwise generating material; or

(b) altering or manipulating material; or

Notes

1 Exceptions apply to this offence—see sections 51J, 51K and 51M.

2 Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q and 51R.

3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51D Distributing child abuse material

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

(a) A intentionally distributes material; and

(b) the material is child abuse material; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) It is not necessary to prove—

(a) the identity of any person to whom the material was distributed; or

(b) that another person in fact accessed the material.

(4) It is immaterial that some or all of the child abuse material was distributed outside Victoria, so long as A was in Victoria at some or all of the time at which the material was distributed.

(5) It is immaterial that A was outside Victoria at some or all of time at which the material was distributed, so long as some or all of the material was distributed in Victoria.

Notes

1 Section 51A(2)(b) provides for the ways in which material may be distributed.

2 Exceptions apply to this offence—see sections 51J, 51K and 51M.

3 Defences apply to this offence—see sections 51L, 51P, 51Q and 51R.

4 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51E Administering a website used to deal with child abuse material

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

(a) A administers, or assists in the administration of, a website; and

(b) the website is used by another person to deal with child abuse material; and

(i) intends that the website be used by another person to deal with child abuse material; or

(ii) is aware that the website is being used by another person to deal with child abuse material.

Examples

1 A manages membership of a website. A intends that the website be used by other persons to view child abuse material.

2 A monitors traffic through a website and ensures that the web server hardware and software are running correctly. A is aware that the website is being used by other persons to download child abuse material.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) It is not necessary to prove the identity of the person using the website to deal with child abuse material.

(4) It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria or that a computer or device used in connection with administering the website was outside Victoria, so long as—

(a) the person using the website to deal with child abuse material was in Victoria; or

(b) the computer or device used to deal with child abuse material was in Victoria.

(5) It is immaterial that the person using the website to deal with child abuse material was outside Victoria or that the computer or device used to deal with child abuse material was outside Victoria, so long as—

(a) some or all of the conduct constituting an offence against subsection (1) occurred in Victoria; or

(b) a computer or device used in connection with administering the website was in Victoria.

Notes

1 Exceptions apply to this offence—see sections 51J, 51K and 51S.

2 Defences apply to this offence—see section 51L.

3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51F Encouraging use of a website to deal with child abuse material

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

(a) A is 18 years of age or more; and

(b) A encourages another person to use a website; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) In determining whether A has encouraged another person to use a website to deal with child abuse material, it is not necessary to prove—

(a) the identity of the person encouraged to use the website to deal with child abuse material; or

(b) that another person in fact used the website to deal with child abuse material; or

(c) if another person did in fact use the website to deal with child abuse material, that it was A's encouragement that caused the person to do so.

(4) Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

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

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

Notes

1 If an adult uses a child as an innocent agent to encourage another person to use a website, intending that the other person use the website to deal with child abuse material, the adult commits an offence against subsection (1).

2 Exceptions apply to this offence—see sections 51J and 51K.

3 A defence applies to this offence—see section 51L.

4 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51G Possession of child abuse material

(1) A person (A) commits an offence if A knowingly possesses child abuse material.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1), A possesses child abuse material that is electronic material if A controls access to the material whether or not A has physical possession of the electronic material.

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

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

Examples

1 A has an online storage account for electronic material accessible with a username and password. A has control of what is stored in the account and can move material around within the account or delete material from the account. A has an electronic folder in the account that A has titled 'personal' in which A puts some electronic child abuse material. A knowingly has possession of child abuse material.

2 In an online chat A is given a password for a joint email account that is shared with multiple users that A doesn't know. A logs into the email account and views emails that contain child abuse material images. While logged in A has the ability to view, move or delete emails that contain child abuse material. A continues to access the email account to view images. A knowingly has possession of child abuse material.

Notes

1 Exceptions apply to this offence—see sections 51J, 51K and 51M.

2 Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q, 51R and 51T.

3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51H Accessing child abuse material

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

(a) A intentionally accesses material; and

(b) the material is child abuse material; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1), the ways in which A accesses material may include—

(a) viewing material; or

(b) displaying material by an electronic medium or any other output of the material by an electronic medium.

Notes

1 Exceptions apply to this offence—see sections 51J, 51K and 51M.

2 Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q and 51R.

3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51I Assisting a person to avoid apprehension

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

(a) A intentionally provides information to another person (B); and

(b) A intends that B use the information for the purpose of avoiding or reducing the likelihood of apprehension for an offence committed by B against section 51B(1), 51C(1), 51D(1), 51E(1), 51F(1), 51G(1) or 51H(1).

Examples

1 A provides information to B about how to use a website to deal with child abuse material anonymously or how to encrypt electronic material containing child abuse material.

2 A provides information to B about how to delete electronic material that records information about B's identity.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) It is not necessary to prove—

(a) the identity of the person to whom the information was provided; or

(b) that the information was actually used by the other person.

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

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

(6) For the purposes of subsections (4) and (5), information is provided by A to B at the place where A is at the time of giving that information irrespective of where B is at the time of receiving that information.

Note

A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.

51J Exception—administration of the law

A does not commit a child abuse material offence (other than an offence against section 51I(1)) if the conduct is engaged in by A in good faith in the course of official duties of A—

(a) connected with the administration of the criminal justice system, including the investigation or prosecution of offences; or

(b) as an employee of the Department of Justice and Regulation who is authorised to engage in that conduct by the Secretary to that Department.

Note

The reference to A in this section is a reference to the same A referred to in the child abuse material offence provisions.

51K Exception—classification

A does not commit a child abuse material offence (other than an offence against section 51I(1)) in respect of material that, at the time at which the offence is alleged to have been committed, was classified other than RC or would, if classified, have been classified other than RC.

Notes

1 The reference to A in this section is a reference to the same A referred to in the child abuse material offence provisions.

2 Under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, a classification of RC means Refused Classification.

51L Defence of artistic merit or public benefit

(1) It is a defence to a charge for a child abuse material offence (other than an offence against section 51I(1)) if—

(a) the material—

(i) was not produced with the involvement of a person who was, at the time it was produced, under the age of 18 years; and

(ii) possesses artistic merit; or

(b) the material is of public benefit.

(2) For the purposes of subsection (1)(b), material that is of public benefit includes material that is for a genuine medical, legal, scientific or educational purpose.

Examples

1 A is a university lecturer in psychology. During a lecture on abnormal psychology, A shows a lecture slide with examples of textual child abuse material to illustrate the type of material associated with an abnormal psychological profile. The lecture slide is of public benefit.

2 A is a photojournalist in a war zone. A takes a photo of a child victim of torture and submits it to a news organisation for publication. The photo is of public benefit.

(3) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(a)(ii) or (b).

Notes

1 The reference to A in this section is a reference to the same A referred to in the child abuse material offence provisions.

2 An evidential burden applies to the matter referred to in subsection (1)(a)(i).

51M Exceptions applying to children

(1) A does not commit an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) A is a child; and

(b) the child abuse material is an image; and

Example

A is 15 years old and takes a photograph of themselves. A stores the photograph on their mobile phone. The offences in 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) do not apply to A in respect of the image.

Note

Section 51O may apply if A is an adult.

(2) A does not commit an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) A is a child; and

(b) the child abuse material is an image; and

Example

The image depicts the child (A) being raped by another person. The offences in sections 51B(1), 51C(1), 51D(1), 51G(1) and 51H(1) do not apply to A in respect of the image.

(3) In subsections (1) and (2), a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

Note

References to A in this section are references to the same A referred to in sections 51B, 51C, 51D, 51G and 51H.

51N Defence applying to children

(1) It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) A is a child; and

(b) the child abuse material is an image; and

(d) the image—

(i) does not depict an act that is a criminal offence punishable by imprisonment; or

(ii) depicts an act that is a criminal offence punishable by imprisonment but A reasonably believes that it does not; and

(e) at the time of the conduct constituting the offence—

(i) A was not more than 2 years older than the youngest child depicted in the image; or

(ii) A reasonably believed that they were not more than 2 years older than the youngest child depicted in the image.

Examples

1 The image depicts A taking part in an act of sexual penetration with another child who is not more than 2 years younger. Both are consenting to the act. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.

2 The image depicts a child being sexually penetrated. A is a child and A reasonably believes that the image depicts a consensual sexual relationship between two 16 year olds and is therefore not a criminal offence. A also reasonably believes that A is not more than 2 years older than the youngest child depicted in the image. A is not guilty of an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) in respect of the image.

(2) In subsection (1), a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

(3) A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection (1)(d)(ii) and (e)(ii).

Notes

1 References to A in this section are references to the same A referred to in sections 51B, 51C, 51D, 51G and 51H.

2 An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c), (d)(i) and (e)(i).

51O Defence—image of oneself

(1) It is a defence to a charge for an offence against section 51B(1), 51C(1), 51G(1) or 51H(1) if—

(a) the child abuse material is an image; and

(b) the image depicts A as a child; and

(d) A does not distribute the image to any other person.

(2) In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

(3) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(b).

Notes

1 References to A in this section are references to the same A referred to in sections 51B, 51C, 51G and 51H.

2 An evidential burden applies to the matters referred to in subsection (1)(a), (c) and (d).

3 Sections 51M(1) or (2) or 51N may apply if A is a child.

51P Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent

(1) It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) the child abuse material is an image; and

(b) at the time at which the image was first made, the child (B) whose depiction in the image makes it child abuse material—

(i) was aged 16 or 17 years; and

(ii) was not, or had not been, under A's care, supervision or authority; and

(d) A did not distribute the image to any person other than B; and

(e) A is not more than 2 years older than B; and

(f) at the time of the conduct constituting the offence, A reasonably believed that B consented to that conduct.

(2) In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves B in producing.

(3) For the purposes of subsection (1)(b), the reference to the time at which the image was first made does not include a reference to any later time at which a copy, reproduction or alteration of the image is made.

(4) A bears the burden of proving (on the balance of probabilities) the matters referred to in subsection (1)(e) and (f).

Notes

1 References to A and B in this section are references to the same A and B referred to in sections 51B, 51C, 51D, 51G and 51H.

2 An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c) and (d).

51Q Defence—marriage or domestic partnership

(1) It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) the child abuse material is an image; and

(b) the image is child abuse material because of its depiction of another person (B); and

(d) A does not distribute the image to any person other than B; and

(e) at the time at which the image was first made—

(i) B was 16 or 17 years of age; and

(ii) either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(iii) where A was B's domestic partner, if B was under A's care, supervision or authority, the domestic partnership commenced before B came under A's care, supervision or authority; and

(f) at the time of the conduct constituting the offence—

(i) either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(ii) A reasonably believed that B consented to the conduct constituting the offence.

(2) In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

(3) For the purposes of subsection (1)(e), the reference to the time at which the image was first made does not include a reference to any later time at which a copy, reproduction or alteration of the image is made.

(4) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(f)(ii).

Notes

1 References to A and B in this section are references to the same A and B referred to in sections 51B, 51C, 51D, 51G and 51H.

2 An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c), (d), (e) and (f)(i).

3 See section 36 for the meaning of consent.

51R Defence—reasonable belief in marriage or domestic partnership

(1) It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

(a) the child abuse material is an image; and

(b) the image is child abuse material because of its depiction of another person (B); and

(d) A does not distribute the image to any person other than B; and

(e) at the time at which the image was first made, A reasonably believed that—

(i) B was 16 or 17 years of age; and

(ii) either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(iii) where A was B's domestic partner, if B was under A's care, supervision or authority, the domestic partnership commenced before B came under A's care, supervision or authority; and

(f) at the time of the conduct constituting the offence, A reasonably believed that—

(i) either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

(ii) B consented to that conduct.

(2) In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

(4) A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(e) and (f).

Notes

1 References to A and B in this section are references to the same A and B referred to in sections 51B, 51C, 51D, 51G and 51H.

2 An evidential burden applies to the matters referred to in subsection (1)(a), (b), (c) and (d).

3 See section 36 for the meaning of consent.

51S Defence—reasonable steps to prevent use of a website for child abuse material

(1) It is a defence to a charge for an offence against section 51E(1) if A, on becoming aware that the website is being used, or has been used, by another person to deal with child abuse material, takes all reasonable steps in the circumstances to prevent any person from being able to use the website to deal with child abuse material.

(2) In determining whether A has taken all reasonable steps in the circumstances for the purposes of subsection (1), regard must be had to whether A did any of the following as soon as it was practicable to do so—

(a) shut the website down;

(b) modified the operation of the website so that it could not be used to deal with child abuse material;

(c) notified a police officer that the website is being, or has been, used to deal with child abuse material and complied with any reasonable directions given to A by a police officer as to what to do in relation to that use of the website;

(d) notified a relevant industry regulatory authority that the website is being, or has been, used to deal with child abuse material and complied with any reasonable directions given to A by that authority as to what to do in relation to that use of the website.

Note

The reference to A in this section is a reference to the same A referred to in section 51E.

51T Defence—unsolicited possession

It is a defence to a charge for an offence against section 51G(1) for A to prove on the balance of probabilities that—

(a) A did not intentionally come into possession of child abuse material; and

(b) on becoming aware of having come into possession of child abuse material, A, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possessing the material.

Note

The reference to A in this section is a reference to the same A referred to in section 51G.

51U No defence of mistaken but honest and reasonable belief that child abuse material not offensive

It is not a defence to a charge for a child abuse material offence that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being, in the circumstances, offensive.

Note

The reference to A in this section is a reference to the same A referred to in the child abuse material offence provisions.

51V Use of random sample evidence in child abuse material cases

(1) An authorised classifier, in connection with any proceeding for a child abuse material offence, may conduct an examination of a random sample of seized material.

(2) In the proceeding for the child abuse material offence concerned, evidence adduced by the prosecution of any of the authorised classifier's findings as to the nature and content of the random sample is admissible as evidence of the nature and content of the whole of the material from which the random sample was taken.

(3) Accordingly, it is open to a court to find that any type of child abuse material found by an authorised classifier to be present in a particular proportion in the random sample is present in the same proportion in the material from which the random sample was taken.

(4) A certificate of an authorised classifier that certifies the following is admissible in proceedings for a child abuse material offence as evidence of the matters certified—

(a) that the authorised classifier conducted an examination of a random sample of seized material;

(b) the findings of the authorised classifier as to the nature and content of the random sample.

(5) A certificate signed by a person purporting to be an authorised classifier is, in the absence of evidence to the contrary, taken to be a certificate of an authorised classifier.

(6) Evidence is admissible under this section only if the court is satisfied that an Australian legal practitioner representing the accused, or the accused, has been given a reasonable opportunity to inspect the seized material.

(7) This section does not affect the operation of any provision of the Criminal Procedure Act 2009 that restricts inspection by an accused of evidence that is child abuse material.

Note

See sections 46(3), 125(3) and 185A of the Criminal Procedure Act 2009 .

(8) The regulations may make further provision for or with respect to the taking and admissibility of random sample evidence under this section, including by providing for—

(a) the circumstances or classes of case in which the prosecutor may adduce evidence of the findings of an authorised classifier under this section; and

(b) the procedure for taking and examining random samples of material; and

(9) In this section—

"seized material", in relation to a proceeding for a child abuse material offence, means material—

(a) that came into the possession of a police officer in the course of the exercise of functions as a police officer; and

(b) some of which is alleged to be child abuse material that is the subject of the proceeding.

Note

Section 177 of the Evidence Act 2008 provides for the adducing of expert evidence by the tendering of a certificate.

51W Application for child abuse material disposal order

(1) The Director of Public Prosecutions or a police officer may apply to a court for a child abuse material disposal order in respect of a seized thing, or of electronic material contained in a seized thing, that—

(a) was the subject of a criminal proceeding for a child abuse material offence in relation to which—

(i) the charge was discontinued, withdrawn or permanently stayed; or

(ii) the person charged was acquitted or found not guilty (including because of mental impairment) of the charge; or

(iii) the charge was dismissed; or

(iv) the person charged was released on an undertaking under section 75 of the Sentencing Act 1991 ; or

(b) was not the subject of a criminal proceeding.

Note

Sections 77 and 78 of the Confiscation Act 1997 apply to the disposal of child abuse material where a person is convicted of an offence set out in Schedule 1 to that Act.

(2) The court to which an application under subsection (1) is to be made is—

(a) the court in which the proceeding was at the time at which the event mentioned in subsection (1)(a)(i) to (iv) occurred; or

(b) the Magistrates' Court.

(3) The applicant must give written notice of an application under subsection (1) to every person whom the applicant has reason to believe has an interest in the seized thing or in the electronic material contained in the seized thing.

(4) A notice under subsection (3) must be given by ordinary service at least 14 days before the return date.

(5) The court may waive the requirement under subsection (3) to give notice if satisfied either—

(a) that all persons who have an interest mentioned in that subsection have appeared before the court; or

(b) that it is fair to waive the requirement despite a person who has such an interest not having appeared before the court.

(6) At any time before the final determination of the application, the court may require the applicant to give notice of the application to any person, in any manner and within any period that the court thinks fit.

(7) The following persons are entitled to appear and give evidence at the hearing of the application—

(a) any person notified under subsection (3) or (6);

(b) any other person who claims an interest in the seized thing or in electronic material contained in the seized thing.

(8) However, the fact that a person mentioned in subsection (7) has not appeared before the court does not prevent the court from making a child abuse material disposal order.

(9) In this section, ordinary service and return date have the same meanings as in the Criminal Procedure Act 2009 .

51X Child abuse material disposal order

(1) On an application under section 51W, the court may order that the seized thing, or the electronic material contained in the seized thing, to which the application relates be—

(a) forfeited to the State; and

(b) destroyed or disposed of in a manner determined by the court and specified in the order.

Note

A child abuse material disposal order that relates to a seized thing that is child abuse material results in forfeiture of the seized thing. A child abuse material disposal order that relates to electronic material that is contained in a seized thing results in forfeiture of the electronic material only.

(2) The court may only make a child abuse material disposal order—

(a) if satisfied, on the balance of probabilities, that—

(i) the seized thing is, or the electronic material contained in the seized thing includes, child abuse material; and

(ii) the return to a person of the seized thing, or of the electronic material contained in the seized thing, may result in the commission of a child abuse material offence; or

(b) if satisfied, on the balance of probabilities, that—

(i) the seized thing contains encrypted or password protected electronic material; and

(ii) there are reasonable grounds to believe that the electronic material includes child abuse material.

(3) The court has power to give any direction necessary to give effect to a child abuse material disposal order made by it.

(4) Without affecting any other right of appeal, a person who has an interest in a seized thing, or in electronic material contained in a seized thing, may appeal against a child abuse material disposal order made in respect of it.

(5) An appeal is to be made by a person in the same manner as if the person had been convicted, by the court that made the order, of a child abuse material offence and the order were, or were part of, the sentence imposed in respect of that offence.

(6) On appeal—

(a) the child abuse material disposal order may be confirmed, discharged or varied; or

(b) the matter may be remitted for re-hearing to the court that made the order with or without any direction in law.

(7) A child abuse material disposal order is stayed during the appeal period.

(8) In this section—

"appeal period" means the period permitted under the Criminal Procedure Act 2009 for commencing an appeal of a kind mentioned in subsection (5) or, if such an appeal is commenced within that period, the determination of the appeal.

51Y Disposal of thing or material by consent

Nothing in section 51W or 51X prevents the destruction or disposal of a seized thing that is, or of electronic material contained in a seized thing that includes, child abuse material with the consent of all persons who have an interest in the thing or material.

(8E) Sexual offences against persons with a cognitive impairment or mental illness

52A Definitions

In this Subdivision—

"cognitive impairment" includes impairment because of intellectual disability, dementia, neurological disorder or brain injury;

"intellectual disability" has the same meaning as in the Disability Act 2006 ;

"mental illness" has the same meaning as in the Mental Health Act 2014 ;

"residential service" includes—

(a) a residential service within the meaning of the Disability Act 2006 ; and

(b) a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010 ; and

"service provider" includes—

(a) a disability service provider within the meaning of the Disability Act 2006 ; and

(b) a residential service; and

(d) a person who, or a body that, delivers treatment or support services to persons with a cognitive impairment or mental illness;

"treatment or support services" means any of the following delivered in a professional capacity—

(a) mental health treatment;

(b) medical treatment;

(d) personal care or support services;

Example

A worker supporting a person with a cognitive impairment to undertake tasks such as bathing and dressing.

"worker" means a person—

(a) who delivers, assists in delivering, or who manages the delivery of, services to persons with a cognitive impairment or mental illness; and

Example

A cook at a supported residential service.

(b) who does so for or on behalf of a service provider (whether paid or unpaid); and

Example

A volunteer bus driver for a mental health service.

(c) who is not a person with a cognitive impairment or mental illness who receives treatment or support services from that service provider.

52B Sexual penetration of a person with a cognitive impairment or mental illness

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

(a) A intentionally—

(i) sexually penetrates another person (B); or

(ii) causes or allows B to sexually penetrate A; or

(iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C) or an animal; or

(b) B has a cognitive impairment or mental illness; and

(i) provides treatment or support services to B; or

(ii) is a worker for a service provider that provides treatment or support services to B.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Notes

1 Exceptions apply to this offence—see sections 52F and 52G.

2 Defences apply to this offence—see sections 52H, 52I and 52J.

3 A mistaken but honest and reasonable belief of certain matters is not a defence against this offence—see section 52K.

52C Sexual assault of a person with a cognitive impairment or mental illness

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

(a) A intentionally—

(i) touches another person (B); or

(ii) causes or allows B to touch A; or

(iii) causes B—

(A) to touch, or to continue to touch, themselves; or

(B) to touch, or to continue to touch, another person (C) or an animal; or

(b) B has a cognitive impairment or mental illness; and

(i) provides treatment or support services to B; or

(ii) is a worker for a service provider that provides treatment or support services to B; and

(d) the touching is—

(i) sexual; and

(ii) 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 the touching 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 touching; and

(ii) whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b) the circumstances do not include—

(i) whether B consents to the touching; or

(ii) whether A believes that B consents to the touching.

Notes

1 An exception applies to this offence—see section 52G.

2 Defences apply to this offence—see sections 52H, 52I and 52J.

3 A mistaken but honest and reasonable belief of certain matters is not a defence against this offence—see section 52K.

52D Sexual activity in the presence of a person with a cognitive impairment or mental illness

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

(a) A intentionally engages in an activity; and

(b) the activity is sexual; and

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

(e) B has a cognitive impairment or mental illness; and

(f) A—

(i) provides treatment or support services to B; or

(ii) is a worker for a service provider that provides treatment or support services to B; and

(g) 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.

Notes

1 An exception applies to this offence—see section 52G.

2 Defences apply to this offence—see sections 52H, 52I and 52J.

3 A mistaken but honest and reasonable belief of certain matters is not a defence against this offence—see section 52K.

52E Causing a person with a cognitive impairment or mental illness 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

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

(e) C has a cognitive impairment or mental illness; and

(f) A—

(i) provides treatment or support services to C; or

(ii) is a worker for a service provider that provides treatment or support services to C; and

(g) 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.

Notes

1 An exception applies to this offence—see section 52G.

2 Defences apply to this offence—see sections 52H, 52I and 52J.

3 A mistaken but honest and reasonable belief of certain matters is not a defence against this offence—see section 52K.

52F Exceptions to sexual penetration offence—medical, hygienic, veterinary, agricultural or scientific purposes

A does not commit an offence against section 52B(1) if—

(a) the sexual penetration is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes; or

(b) the sexual penetration is of an animal and is caused by A to be done in the course of a procedure being carried out in good faith for veterinary or agricultural purposes or scientific research purposes.

Example

A is a support worker assisting B on a farm. B assists in birthing a calf. During this process, A causes B to insert B's hand into the cow's vagina. A has not committed an offence against section 52B(1).

Note

The reference to A in this section is a reference to the same A referred to in section 52B.

52G Exception—marriage or domestic partnership

A does not commit an offence against a provision of this Subdivision if, at the time at which the offence is alleged to have been committed—

(a) A and the person who has a cognitive impairment or mental illness are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A is the domestic partner of the person who has a cognitive impairment or mental illness.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

52H Defence—reasonable belief in marriage or domestic partnership

(a) A and the person who has a cognitive impairment or mental illness were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b) A was the domestic partner of the person who has a cognitive impairment or mental illness.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

52I Defence—reasonable belief a person does not have a cognitive impairment or mental illness

It is a defence to a charge for an offence against a provision of this Subdivision for A to prove on the balance of probabilities that, at the time of the conduct constituting the offence, A reasonably believed that the person who has a cognitive impairment or mental illness did not have a cognitive impairment or mental illness.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

52J Defence—reasonable belief the service provider does not provide treatment or support services to the person with a cognitive impairment or mental illness

If A is a worker for a service provider, it is a defence to a charge for an offence against a provision of this Subdivision for A to prove on the balance of probabilities that, at the time of the conduct constituting the offence, A reasonably believed that the service provider was not providing treatment or support services to the person who has a cognitive impairment or mental illness.

Notes

1 The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

2 The prosecution is required to prove that A is a worker for a service provider—see sections 52B, 52C, 52D and 52E.

52K No defence of mistaken but honest and reasonable belief of certain matters

(1) It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a) for an offence against section 52B(1), 52C(1) or 52D(1)—A did not provide treatment or support services to B or was not a worker for a service provider; or

(b) for an offence against section 52E(1)—A did not provide treatment or support services to C or was not a worker for a service provider.

(2) It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a) for an offence against section 52C(1)—the touching was not—

(i) sexual; or

(ii) contrary to community standards of acceptable conduct; or

(b) for an offence against section 52D(1)—

(i) the activity was not sexual; or

(ii) engaging in the activity in the presence of B was not contrary to community standards of acceptable conduct; or

(i) the activity was not sexual; or

(ii) A's causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 52B, 52C, 52D and 52E.

(8F) Sexual servitude

53A Definitions

In this Subdivision—

"commercial sexual services" means services for commercial benefit involving the use or display of the body of the person providing the services for the sexual arousal or sexual gratification of others;

"threat" means—

(a) threat of force; or

(b) threat to cause a person's deportation; or

(c) threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of commercial sexual services;

Example

A brothel manager may have reasonable grounds to threaten to dismiss a sex worker who is regularly late for work.

"use", in relation to a debt or purported debt, includes impose, arrange, negotiate or refer to the debt or purported debt.

53B Using force, threat etc. to cause another person to provide commercial sexual services

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

(a) A—

(i) uses force against another person (B) or any other person; or

(ii) makes a threat to, or against, B or any other person; or

(iii) unlawfully detains B or any other person; or

(iv) engages in fraud or misrepresentation (including by omission) in relation to B or any other person; or

(v) uses a manifestly excessive debt owed, or purportedly owed, by B or any other person; and

(b) A, by engaging in the conduct referred to in paragraph (a), causes B—

(i) to provide, or to continue to provide, commercial sexual services; or

(ii) to not be free to leave the place or area where B provides commercial sexual services; and

(i) intends that engaging in the conduct referred to in paragraph (a) will cause B—

(A) to provide, or to continue to provide, commercial sexual services; or

(B) to not be free to leave the place or area where B provides commercial sexual services; or

(ii) knows that engaging in the conduct referred to in paragraph (a) will, or probably will, cause B—

(A) to provide, or to continue to provide, commercial sexual services; or

(B) to not be free to leave the place or area where B provides commercial sexual services.

(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

53C Causing another person to provide commercial sexual services in circumstances involving sexual servitude

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

(a) A causes or induces another person (B) to provide, or to continue to provide, commercial sexual services; and

(b) B is not free to stop providing those services, or to leave the place or area where B provides those services, because A or another person (C)—

(i) uses force against B or another person (D); or

(ii) makes a threat to, or against, B or D; or

(iii) unlawfully detains B or D; or

(iv) engages in fraud or misrepresentation (including by omission) in relation to B or D; or

(v) uses a manifestly excessive debt owed, or purportedly owed, by B or D; and

(i) to provide, or to continue to provide, commercial sexual services; or

(ii) to not be free to leave the place or area where B provides commercial sexual services.

(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

53D Conducting a business in circumstances involving sexual servitude

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

(a) A conducts a business that involves the provision of commercial sexual services by another person (B); and

(b) B is not free to stop providing those services, or to leave the place or area where B provides those services, because A or another person (C)—

(i) uses force against B or another person (D); or

(ii) makes a threat to, or against, B or D; or

(iii) unlawfully detains B or D; or

(iv) engages in fraud or misrepresentation (including by omission) in relation to B or D; or

(v) uses a manifestly excessive debt, or purported debt, owed by B or D; and

(i) to provide, or to continue to provide, commercial sexual services; or

(ii) to not be free to leave the place or area where B provides commercial sexual services.

(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

(3) For the purposes of subsection (1), conducting a business includes—

(a) taking any part in the management of the business; or

(b) exercising control or direction over the business; or

53E Aggravated sexual servitude

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

(a) A commits an offence against section 53B(1), 53C(1) or 53D(1); and

(b) the person against whom the offence is committed (B) is under the age of 18 years; and

(2) A person who commits an offence against subsection (1) is liable to level 3 imprisonment (20 years maximum).

53F Deceptive recruiting for commercial sexual services

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

(a) A deceives another person (B) about the fact that an engagement will involve the provision of commercial sexual services by B; and

(b) A intends to induce B to enter into an engagement to provide commercial sexual services.

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

53G Aggravated deceptive recruiting for commercial sexual services

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

(a) A commits an offence against section 53F(1); and

(b) the person against whom the offence is committed (B) is under the age of 18 years; and

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(8FA) Other sexual offences

54A Bestiality

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

(a) sexually penetrates an animal; or

(b) causes or allows an animal to sexually penetrate A.

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

Notes

1 See section 35A(3) for the meaning of sexual penetration of an animal.

2 See section 35A(4) for the meaning of sexual penetration by an animal.

3 An exception applies to this offence—see section 54B.

54B Exception—veterinary, agricultural or scientific research

A does not commit an offence against section 54A(1) if A's conduct occurs in the course of a procedure being carried out by A in good faith for veterinary or agricultural purposes or scientific research purposes.

Note

The reference to A in this section is a reference to the same A referred to in section 54A.

54C Abolition of common law offence of wilful exposure

The offence of wilful exposure at common law is abolished.".

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