Section 48 of the Crimes Act 1958 (Vic) sets out the offence of sexual penetration of a 16 or 17 year old child. In Victoria, the maximum penalty is 10 years imprisonment. Like all sexual offences involving children it is a serious offence. A finding of guilt in relation to an offence of this nature will result in mandatory registration on the Sex Offenders Register.
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To prove this offence, the prosecution must establish the following beyond reasonable doubt:
- The accused took part in an act of sexual penetration with the complainant;
- The accused intended to take part in that act of sexual penetration;
- The complainant was either 16 or 17 years of age at the time that the act of sexual penetration took place;
- The accused and the complainant were not married at the time; and
- The complainant was under the accused’s care, supervision or authority at the time that the act of sexual penetration took place.
What constitutes ‘care, supervision or authority’ is not exhaustively defined within the Act. Section 48(4) does however provide a list of relationships considered to fall within the meaning, some include the child’s: teacher; foster parent; legal guardian; religious representative; employer; counsellor; member of the police force or corrections; and coach. The question of whether a person is under the ‘care, supervision or authority’ of the accused is a question of fact for the jury to determine.
The relationship of ‘care, supervision or authority’ does not need to be based on a legal right or specific power. Instead, it is targeted at those persons who have an on-going relationship with a child (involving care, supervision or authority) and who are able to take advantage of the influence which develops from the relationship.
Importantly, the prosecution is not required to prove that the act of sexual penetration was connected with or arose out of the relationship of ‘care, supervision or authority’. It is enough for the prosecution to establish that there was a relationship of ‘care, supervision or authority’ existing at the time the act of sexual penetration was committed.