4. Sexual Offences Against Children and Child Abuse Material (Victoria)¶
Crimes Act 1958 (Vic). Extracted from study notes. SS = standard sentence; SORA = Sex Offenders Registration Act 2004 (Vic) class; SA = Sentencing Act 1991 (Vic); Category ½ = Sentencing Act offence category. “Contrary to community standards” does not turn on consent.
Child sexual penetration offences (Subdiv 8B)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 49A | Sexual penetration of a child under 12 | (1) A intentionally sexually penetrates B, or causes/allows penetration (s 35A); (2) B is under 12. (Consent and reasonable belief as to age not in issue.) | Level 2 / 25 yrs / SS 10 yrs / Class 1 — mandatory custodial s 5(2G) SA SORA: Class 1 Standard sentence: SS 10 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(v)). |
| s 49B | Sexual penetration of a child under 16 | (1) A intentionally sexually penetrates B, or causes/allows penetration (s 35A); (2) B is under 16. | Level 4 / 15 yrs / SS 6 yrs / Class 1 SORA: Class 1 Standard sentence: SS 6 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(va)). |
| s 49C | Sexual penetration of a child aged 16/17 under care, supervision or authority | (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 (C) to be sexually penetrated by C; and (b) B is— (i) a child aged 16 or 17 years; and (ii) under A's care, supervision or authority. |
Level 5 / 10 yrs / Class 1 SORA: Class 1 Standard sentence: NO. Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viiia)). |
Incest (Subdiv 8C)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 50C | Sexual penetration of child or lineal descendant | (1) A intentionally sexually penetrates B, or causes/allows penetration; (2) B is A's child or lineal descendant (s 50A); (3) A knows B is A's child or lineal descendant. | Level 2 / 25 yrs / if victim U18: SS 10 yrs / Category 1 (SA, mandatory custodial s 5(2G)) / Class 1 (SORA) SORA: Class 1 Standard sentence: SS 10 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viiia)). |
| s 50D | Sexual penetration of step-child | (1) A intentionally sexually penetrates B, or causes/allows penetration; (2) B is a child or lineal descendant of A's spouse or domestic partner; (3) A knows that fact. | Level 2 / 25 yrs / if victim U18: SS 10 yrs / Category 1 (SA, mandatory custodial s 5(2G)) / Class 1 (SORA) SORA: Class 1 CONFIRMED (Sch 1 cl 1 — penetration catch-all). Standard sentence: SS 10 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(iva)). |
Child sexual assault / sexual activity offences (Subdiv 8B)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 49D | Sexual assault of a child under 16 | (1) A intentionally touches B, or causes/allows touching; (2) B is under 16; (3) the touching is sexual (s 35B); (4) the touching is contrary to community standards. | Level 5 / 10 yrs / SS 4 yrs / Class 2 SORA: Class 2 Standard sentence: SS 4 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES |
| s 49E | Sexual assault of a child aged 16/17 under CSA | (1) A intentionally touches B; (2) B is 16 or 17; (3) B under A's CSA; (4) touching is sexual; (5) contrary to community standards. |
Level 6 / 5 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viiiab)). |
| s 49F | Sexual activity in the presence of a child under 16 | (1) A intentionally engages in sexual activity; (2) another person (B) is present (incl. 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). (3) A knows B is, or probably is, present; (4) B under 16; (5) contrary to community standards. |
Level 5 / 10 yrs / SS 4 yrs / Class 2 SORA: Class 2 Standard sentence: SS 4 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES clause 1(a)(viia) |
| s 49G | Sexual activity in the presence of a child aged 16/17 under CSA | (1) A intentionally engages in sexual activity; (2) B present; (3) A knows B is, or probably is, present; (4) B is 16 or 17; (5) under A's CSA; (6) contrary to community standards. | Level 6 / 5 yrs / Class 2 SORA: Class 2 CONFIRMED (Sch 2 cl 7). Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viiib)). |
| s 49H | Causing a child under 16 to be present during sexual activity | (1) B engages in sexual activity; (2) A intentionally causes or allows C to be present; (3) C is under 16; (4) contrary to community standards. | Level 5 / 10 yrs / SS 4 yrs / Class 2 SORA: Class 2 Standard sentence: SS 4 yrs Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viib)). |
| s 49I | Causing a child aged 16/17 to be present during sexual activity | (1) B engages in sexual activity; (2) A intentionally causes or allows C to be present; (3) C is 16 or 17; (4) under A's CSA; (5) contrary to community standards. | Level 6 / 5 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1). |
| s 49J | Persistent sexual abuse of a child under 16 | (1) A sexually abuses B on at least 3 occasions during a period — each occasion a specified offence, identified with specificity; (2) B under 16 for the whole period. | Level 2 / 25 yrs / SS 10 yrs / Class 1 — mandatory imprisonment s 5(2G) if after 20.3.18; Director's consent required SORA: Class 1 Standard sentence: SS 10 yrs (s 49J(2A); Category 1 — mandatory custodial s 5(2G)). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(viii)). |
Encouraging / grooming / preparatory offences (Subdiv 8B)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 49K | Encouraging a child under 16 to engage in or be involved in sexual activity | (1) A encourages B to engage in or be involved in sexual activity; (2) activity is sexual; (3) B under 16; (4) A gets sexual arousal or gratification from the encouragement or the activity. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1). |
| s 49L | Encouraging a child aged 16/17 under CSA to engage in or be involved in sexual activity | (1) A (18+) encourages B to engage in or be involved in sexual activity; (2) activity is sexual; (3) B is 16 or 17; (4) under A's CSA; (5) A gets sexual arousal or gratification. | Level 6 / 5 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(xvc)). |
| s 49M | Grooming a child under 16 for sexual conduct | (1) A (18+) communicates with B (a child under 16), or with a person having CSA of B; (2) with the intention of facilitating B's engagement or involvement in a sexual offence with A or another adult. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(ixa)). |
| s 49N | Loitering near schools etc. by sexual offender | (1) A found guilty of a relevant offence; (2) A loiters at or near a place; (3) place is a school/children's service/education-care premises, or a public place frequented by children with children present; (4) A knows the nature of the place. | Level 6 / 5 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES |
| s 49O | Failure by a person in authority to protect a child from sexual offence | (1) A occupies a position in a relevant organisation; (2) substantial risk a relevant child will be the victim of a sexual offence by an associated adult; (3) A knows the risk exists; (4) A has the power/responsibility to reduce or remove it; (5) A negligently fails to do so. | Level 6 / 5 yrs / SORA unclassed SORA: Not listed (SORA unclassed) Standard sentence: no standard sentence (consistent). |
| s 49P | Abduction or detention of a child under 16 for a sexual purpose | (1) A takes away or detains B; (2) B under 16; (3) without the consent of the person with lawful charge of B; (4) intending B take part in a sexual act; (5) knowledge of B's age and the absence of consent. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(xiv)). |
Sexual performance offences (Subdiv 8B)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 49Q | Causing or allowing a sexual performance involving a child | (1) A intentionally causes or allows B (a child under 18) to take part in a sexual performance; (2) in circumstances involving any person receiving payment, reward or other benefit. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES clause 1(a)(xvij) |
| s 49R | Inviting or offering a sexual performance involving a child (two discrete offences) | Inviting: (1) A invites B to take part in a sexual performance; (2) involving payment/reward/benefit; (3) B under 18. Offering: (1) A offers to C that B will take part; (2) payment/reward/benefit; (3) B under 18. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). |
| s 49S | Facilitating sexual offences against a child | (1) A engages in conduct aiding/facilitating/contributing to B engaging in sexual conduct re a child (a specified Vic or Cth offence); (2) with the intention of obtaining a benefit; (3) A intends, or knows conduct will/probably will, so aid or facilitate. | Level 3 / 20 yrs / Class 1 SORA: Class 1 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(ix)). |
Child abuse material (Subdiv 8D)¶
| Section | Offence | Brief elements | Penalty / SS / SORA |
|---|---|---|---|
| s 51B | Involving a child in the production of child abuse material | (1) A intentionally involves B in the production of material; (2) B is a child; (3) A knows B is, or probably is, a child; (4) material is CAM; (5) A knows it is, or probably is, CAM. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(xvih)). |
| s 51C | Production of child abuse material | (1) A intentionally produces material; (2) material is CAM; (3) A knows it is, or probably is, CAM. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(xvig)). |
| s 51D | Distributing child abuse material | (1) A intentionally distributes material; (2) material is CAM; (3) A knows it is, or probably is, CAM. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1). |
| s 51E | Administering a website used to deal with child abuse material | (1) A administers or assists in administering a website; (2) the website is used by another to deal with CAM; (3) A intends it be so used, or is aware it is being so used. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1). |
| s 51F | Encouraging use of a website to deal with child abuse material | (1) A is 18 or older; (2) A encourages another person to use a website; (3) A intends that person use it to deal with CAM. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES |
| s 51G | Possession of child abuse material | (1) A knowingly possesses, or controls access to, material; (2) material is CAM; (3) A knows it is, or probably is, CAM. |
Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1). |
| s 51H | Accessing child abuse material | (1) A intentionally accesses material; (2) material is CAM; (3) A knows it is, or probably is, CAM. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES (Sch 1 cl 1(a)(xvihb)). |
| s 51I | Assisting a person to avoid apprehension | (1) A intentionally provides information to B; (2) intending B use it to avoid or reduce the likelihood of apprehension for an offence by B against ss 51B–51H. | Level 5 / 10 yrs / Class 2 SORA: Class 2 Standard sentence: no standard sentence (consistent). Serious offender (Sentencing Act 1991 Sch 1 serious sexual offence): YES clause 1(a)(xviic) of the Act. However, the schedule contains an important exception: the offence is not a serious offender offence if it only relates to child abuse material that depicts or describes a child as a victim of cruelty or physical abuse, and where that torture, cruelty, or abuse is not sexual in nature |
- Class 2 under Schedule 2 SORA, but registrable only where the material is sexual in nature (as opposed to material that solely depicts non-sexual physical cruelty or torture).*
29 distinct offence provisions (30 chargeable offences counting s 49R's inviting and offering limbs separately).