36. Care, Supervision or Authority — and "Contrary to Community Standards" (Vic)¶
Scope and currency
Cheat sheet · Crimes Act 1958 (Vic) ss 37, 49C, 49E, 49F, 49L, 49M, 49X, 49ZA, 49ZC · Evidence Act 2008 (Vic) s 55
Care, supervision or authority is a relational element, and it is proved as a question of fact, not status. Section 37(1) of the Crimes Act 1958 (Vic) deems a child to be under another person's care, supervision or authority in a list of enumerated relationships, but that list is expressly non-exhaustive. Where the accused does not fall within a listed category, the common law test in R v Howes (2000) 2 VR 141 still captures anyone who, by virtue of an established and ongoing relationship, is in a position to exploit or take advantage of the influence that grows out of it — and the relationship need not be formal or founded on any legal right or power, because de facto control or supervision is sufficient. The second element this sheet covers, that conduct be contrary to community standards of acceptable conduct, is a separate element the prosecution must prove beyond reasonable doubt in addition to proving the conduct was sexual.
GATE 1 — Is the accused within an enumerated s 37(1) category?¶
The deeming provision: Under s 37(1) Crimes Act 1958 (Vic), the concept of a child being under the care, supervision or authority of a person is non-exhaustively defined. A child (B) is under the care, supervision or authority of a person (A) if A falls within one of the categories listed below. Because the definition is inclusive rather than exhaustive, falling outside every category does not end the inquiry — it simply moves you to Gate 2.
The enumerated s 37(1) relationships¶
| Category | As enacted |
|---|---|
| Parent or step-parent | A is B's parent or step-parent. |
| Teacher | A is B's teacher. |
| Employer | A is B's employer. |
| Youth worker | A is B's youth worker. |
| Sports coach | A is B's sports coach. |
| Counsellor | A is B's counsellor. |
| Health professional | A is B's health professional. |
| Person with parental responsibility | A is a person who has parental responsibility for B within the meaning of the Children, Youth and Families Act 2005 (Vic). |
| Religious or spiritual figure | A is a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however described, who provides care, advice or instruction to B, or has authority over B. |
| Out of home carer | A is an out of home carer of B within the meaning of s 161A Children, Youth and Families Act 2005 (Vic). |
| Police officer | A is a police officer acting in the course of their duty in respect of B. |
| Custodial staff | A is employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of their duty in respect of B. |
GATE 2 — If not enumerated, apply the Howes test¶
GATE 2 Is there an established and ongoing relationship capable of exploitation?
The common law test survives alongside s 37(1). Because the s 37(1) categories are non-exhaustive, an accused who does not fit a specified category may still be captured as a question of fact. The benchmark test remains R v Howes (2000) 2 VR 141, endorsed in Little v The Queen VSCA 62: the offence covers those who, by virtue of an established and ongoing relationship, are in a position to exploit or take advantage of the influence that grows out of it. The relationship need not be formal or based on any legal right or power — de facto control or supervision is sufficient. → The meaning of the three words: the jury applies the ordinary disjunctive meaning of "care, supervision or authority", and coercive power is not required (Howes; Little). "Authority" means the "power to influence the conduct and actions of others; personal or practical influence" (Little). "Care" can simply mean "looking after someone, taking care of them" (King v The Queen VSCA 206). → A standing relationship is not a light switch: a current standing relationship such as teacher and pupil cannot be turned "on and off" at the whim of the parties. The position of responsibility continues to subsist, giving rise to a capacity to exploit that influence (Howes). It is therefore no answer that the relationship was not being actively exercised at the moment of the offending. → De facto and ad hoc relationships count: a person who assumes de facto control, support or supervision over a child is caught even if they have no legal custody and no delegation of responsibility occurred (R v Macfie VSCA 173). An overnight stay in which the accused accepts responsibility for the child when a parent leaves can create an ad hoc relationship of care and supervision (King). → Worked application — private art-therapy provider: almost certainly captured. Such a provider gives professional therapeutic services in loco parentis, which constitutes "oversight with a view to protection, preservation or guidance", and depending on qualifications may also fall within the express categories of counsellor or health professional under s 37(1)(f) and (g). → Worked application — informal mentor: capable of being captured under the general non-deemed application where there is an established and ongoing informal relationship in which the mentor has assumed de facto care, supervision or authority, creating a position of responsibility and a "power to influence the conduct and actions" of the child.
GATE 3 — Currency: does the relationship exist at the time of the offending?¶
GATE 3 The relationship must be contemporaneous
A former relationship, standing alone, will not do. A person who was the child's schoolteacher but has ceased to teach at that school is not automatically captured by the statutory category of "teacher" under s 37(1)(b). In Thomas Lydgate (a pseudonym) v The Queen VSCA [2014] 144 the Court of Appeal established that the prosecution cannot rely solely on a former standing relationship — such as principal and student, or teacher and pupil — to satisfy the element. The statutory offence uses the present tense ("is under the care, supervision or authority"), which requires currency or contemporaneity between the relationship and the sexual conduct at the time of the offending. To hold that the mere status of "former teacher" sufficed would impermissibly extend the statutory reach of the offence. → But the former teacher is not immune: evidence of the former relationship is admissible under s 55 Evidence Act 2008 (Vic) as relevant background or circumstantial context. It may be used to prove that the accused exploited the power imbalance and influence originating in the former relationship to establish a new, contemporaneous ad hoc or de facto relationship of care, supervision or authority at the time of the offending. → The forensic consequence: on a former-relationship fact pattern the real contest is not whether the old relationship existed but whether a new one was created. Direct the evidence to the establishment of the fresh relationship, because that is what the Crown must now prove.
The offences in which the element appears¶
| Section | Offence and elements | Maximum |
|---|---|---|
| s 49C | Sexual penetration of a child aged 16 or 17 under care, supervision or authority. A intentionally sexually penetrates B; or causes or allows B to sexually penetrate A; or causes B to sexually penetrate themselves, another person (C), or be sexually penetrated by C. B is a child aged 16 or 17. B is under A's care, supervision or authority. | Level 5 — 10 years |
| s 49E | Sexual assault of a child aged 16 or 17 under care, supervision or authority. A intentionally touches B; or causes or allows B to touch A; or causes B to touch or continue to touch themselves, another person (C), or B to be touched or continue to be touched by C. B is a child aged 16 or 17. B is under A's care, supervision or authority. The touching is sexual. The touching is contrary to community standards of acceptable conduct. | Level 6 — 5 years |
| s 49F | Sexual activity in the presence of a child under the age of 16. A intentionally engages in an activity. The activity is sexual. Another person (B) is present when A engages in it. A knows B is, or probably is, present. B is a child under 16. Engaging in the activity in B's presence is contrary to community standards of acceptable conduct. Under s 49F(2A) the standard sentence is 4 years. | Level 5 — 10 years |
| s 49L | Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity. A is 18 or more. A encourages B to engage in or be involved in an activity. The activity is sexual. B is aged 16 or 17. B is under A's care, supervision or authority. A seeks or gets sexual arousal or gratification from the encouragement or from the sexual activity encouraged. | Level 6 — 5 years |
| s 49M | Grooming for sexual conduct with a child under the age of 16. A is 18 or more. A communicates, by words or conduct (whether or not a response is made), with B (a child under 16) or with another person (C) under whose care, supervision or authority B is. A intends the communication to facilitate B engaging in or being involved in the commission of a sexual offence by A or by another person aged 18 or more. | Level 5 — 10 years |
Identical section numbers exist in the Summary Offences Act 1966 — check which Act you are in
The same numbers govern entirely separate summary offences: s 49C being disguised with unlawful intent (2 years); s 49E escaping from lawful custody (2 years); and s 49F contravening certain conduct conditions of bail undertakings (3 months). This matters practically, because s 49F of the Summary Offences Act is the bail-condition offence that was inserted into Schedule 3 of the Bail Act 1977 on 26 August 2025 — a different provision entirely from s 49F of the Crimes Act.
Consent, knowledge and the statutory defences¶
| Question | Answer |
|---|---|
| Is consent a defence to ss 49C, 49E or 49L? | No. These provisions exist to protect children from exploitation by those in positions of trust. Even if the child fully, freely and voluntarily participated in or initiated the sexual activity, their consent is completely irrelevant to criminal liability. |
| What must the accused know about the relationship? | The prosecution must prove the accused knew the relevant primary facts that established the relationship — for example that the child was their student or employee, or that they had assumed responsibility for looking after them overnight. If the accused was genuinely unaware of the factual foundation of the relationship (for instance, did not recognise the child as their stepchild), guilt cannot be established. |
| Must the accused know the legal characterisation? | No. It is not necessary for the prosecution to prove that the accused knew or believed those facts carried the legal classification of "care, supervision or authority". |
| Reasonable belief the child was NOT under care — s 49ZA | Under s 49ZA(1) it is a complete defence if the accused proves on the balance of probabilities that, at the time of the conduct, they reasonably believed B was not under their care, supervision or authority. The accused bears the legal burden. |
| Mistake as to age — s 49X | Under s 49X(1) it is a complete defence to a charge under s 49C(1), 49E(1) or 49L(1) that the accused reasonably believed B was 18 years of age or more. Under s 49X(4) the accused bears the legal burden on the balance of probabilities. Reasonableness depends on the circumstances, which the statute expressly provides include any steps the accused took to find out the child's age. |
| How is "reasonableness" of the age belief assessed? | In line with Curtis v The Queen VSCA 102, where the child made no representations about their age, the accused must identify specific aspects of the child's appearance, demeanour or behaviour that induced the belief. A passive assumption of age, without active reasonable steps to verify, will generally fail. |
Case law — care, supervision or authority¶
| Case | Facts | What happened | What was decided |
|---|---|---|---|
| R v Howes (2000) 2 VR 141 | Rodney Howes, a school teacher, taught the 17-year-old complainant in Year 11 and Year 12. On a non-school day they consensually met at a university open day in Melbourne. She went with him to his flat, where sexual penetration took place. The complainant testified she did not feel under his supervision at the time. | Convicted at trial under the former s 48(1). Applied for leave to appeal conviction, arguing the care relationship had to be actively exercised at the exact moment of penetration. | Appeal dismissed. Juries must apply the ordinary disjunctive meaning of the three words, and coercive power is not required. A current standing relationship such as teacher and pupil is not a light switch and cannot be turned on and off at the parties' whim — the position of responsibility continues to subsist, giving rise to a capacity to exploit that influence. |
| R v Macfie [2000] VSCA 173 | John Macfie, a truck driver, took in a 13-year-old ward of the State who had run away from state care. She stayed continuously with him for a month, sleeping in his home, truck and hut, and dozens of acts of sexual intercourse occurred. Macfie argued s 47A did not apply because he was not her legal guardian and care had not been delegated to him. | Convicted of maintaining a sexual relationship with a child under his care, supervision or authority. Appealed against conviction. | Appeal dismissed. A person who assumes de facto control, support or supervision is caught even without legal custody and without any delegation. Macfie was in loco parentis, treating her as his "charge" — giving protective oversight, preservation or guidance. Occasional acts of resistance by the child do not negate the ongoing relationship of de facto care. |
| King v The Queen [2012] VSCA 206 | Arthur King was a tennis coach and part-owner of a tennis centre who had coached the 16-year-old complainant since she was 14. He also ran a fashion company. Under the guise of an informal modelling and photography shoot, the girl was dropped off by her mother to stay overnight at King's house, where sexual activity occurred. King argued he was not her "employer" under s 49(4)(e) and so was not captured. | Convicted under s 49 of committing an indecent act with a 16-year-old child under his care, supervision or authority. Appealed against conviction. | Appeal dismissed. The prosecution did not need to satisfy the strict "employer" category in s 49(4). There was overwhelming evidence of a de facto ad hoc relationship arising from the overnight stay: King accepted responsibility for her when her mother left, and admitted to police he supervised her, including forbidding her from drinking alcohol. "Care" can simply mean looking after someone, taking care of them. |
| Thomas Lydgate (a pseudonym) v The Queen [2014] VSCA 144 | Lydgate was the Principal of a school where the 17-year-old complainant was a student in 2012, and a care relationship existed while he held that office. He was suspended and later resigned. After his resignation they commenced a three-month sexual relationship. | The trial judge reserved six questions of law for the Court of Appeal on whether a former principal–pupil relationship was admissible or could satisfy the element post-resignation. | Questions answered in the negative / remitted. The relationship must exist currently and contemporaneously with the offending. A former standing relationship, once fully terminated, cannot substitute for the element or prove it on its own. However, the former relationship is admissible under s 55 Evidence Act 2008 to show how the accused used the psychological influence growing out of it to establish a new contemporaneous ad hoc or de facto relationship. |
| Little v The Queen VSCA 62 | Mark Little owned a house where his employee, 18-year-old JC, was residing. The 17-year-old complainant (JC's girlfriend) stayed at the house for several days. The prosecution alleged Little had "authority" because he set house rules, paid bills, and JC was dependent on him. | The trial judge refused a permanent stay. Little appealed the interlocutory decision to the Court of Appeal. | Leave to appeal refused — stay properly denied. The majority held that juries apply the ordinary disjunctive meaning of the three words; that "authority" means the "power to influence the conduct and actions of others; personal or practical influence"; and that there was sufficient evidence of de facto authority because the complainant was a guest in his home, subject to his house rules and his ability to permit or forbid her presence. |
| McPhillamy v The Queen [2018] HCA 52 | McPhillamy was convicted of sexual offences against "A", a cathedral altar boy. The prosecution led tendency evidence that in 1985, while an assistant housemaster at a boarding school, he had sexually abused vulnerable homesick boys in his care. | Convicted; the Court of Criminal Appeal dismissed his appeal. He appealed to the High Court. | Appeal allowed, convictions quashed. The tendency evidence lacked significant probative value because of a qualitative mismatch between the two relationships: the formal care and supervision of an assistant housemaster over vulnerable boarders in 1985 had little in common with the limited, ritualistic and fleeting contact between an acolyte and an altar boy during cathedral services in 1995–1996. The acolyte–altar boy relationship was not one of care, supervision or authority. |
| Pell v The Queen [2020] HCA 12 | Cardinal George Pell was convicted of sexual offences against two 13-year-old cathedral choirboys. The prosecution asserted the choirboys were under his authority as Archbishop of Melbourne. | The Court of Appeal dismissed his appeal. He appealed to the High Court. | Appeal allowed, convictions quashed. The High Court did not decide the appeal on the care, supervision or authority element, resolving it instead on the physical impossibility of the offences occurring on the unchallenged evidence of cathedral routines. Treat it as context, not as authority on the element. |
"Contrary to community standards of acceptable conduct"¶
THE TEST Where it lives and how it works
There is no single defining section — it is enacted offence by offence. The phrase is not defined in a single overarching section of the Crimes Act 1958 (Vic). It is a statutory element enacted and governed within the individual offence provisions where it appears. It applies to child sexual exploitation offences under Subdivision (8B) — including ss 49D(1)©(ii), 49E(1)©(ii), 49F(1)(f), 49G(1)(f), 49H(1)(f) and 49I(1)(g) — to intimate image offences under Subdivision (8FAAB), including ss 53R(1)(d) and 53S(1)(d), and to the public order offence of grossly offensive public conduct under Division 2C, at s 195K(1)(a). The evaluative mechanism is mirrored across these provisions. Taking s 49F(3) and (4) as the representative example, the statute provides: "(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: - the purpose of the activity; and - 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." The same structure applies to s 49E(3) and (4) for sexual assault of a child aged 16 or 17 under care, supervision or authority: the circumstances include the purpose of the touching and whether A seeks or gets sexual arousal or gratification from it and strictly exclude consent and belief in consent. → It is a separate element, on the Crown: the prosecution bears the legal burden and must establish it beyond reasonable doubt. It and the "sexual" element are cumulative — the Crown must prove both that the touching or activity was sexual and that it was contrary to community standards of acceptable conduct. A touch may be sexual yet not contrary to community standards, for example consensual sexual activity between peer teenagers of similar age, which is protected by specific statutory exceptions. → Mistake about it is no defence — s 49ZC: the Act strictly enacts that a mistaken but honest and reasonable belief that the touching or activity was not sexual, or was not contrary to community standards of acceptable conduct, is not a defence. This prevents an accused relying on a mistake of fact as to the moral or social acceptability of their conduct. → It is objective: the standard is objective, assessed according to contemporary community standards (Sabet v The Queen VSCA 124, on the analogous standard of indecency).
Jury directions¶
There is no specific JDA direction on the phrase. There is no specific statutory direction in the Jury Directions Act 2015 (Vic) that defines or instructs the jury on how to apply "contrary to community standards of acceptable conduct". The trial judge must direct on the elements using the ordinary meanings and the statutory inclusions and exclusions set out in the Crimes Act itself, in line with the standard directions in the Judicial College of Victoria's Criminal Charge Book. Do not confuse this with JDA s 47(3)(d), which applies where an accused's reasonable belief in consent is in issue and permits a party to request a direction that the jury must consider what the community would reasonably expect of the accused in the circumstances — that direction is confined to the reasonableness of a belief in consent.
Case law — community standards and indecency¶
| Case | Facts | Outcome and holding |
|---|---|---|
| Sabet v The Queen VSCA 124 | The case addressed the common law standard of indecency and how it should be formulated to a jury. | The Court of Appeal affirmed that the issue of "indecent circumstances" is objective, assessed according to contemporary community standards. Indecent conduct is conduct "so offensive to contemporary standards of modesty or decency as to be indecent", described synonymously as "unbecoming or offensive to common propriety", "an affront to modesty", or "offending the modesty of the average person". |
| AB v Paulet WL 2965963 (VSC) | AB was convicted on appeal de novo in the County Court of two counts of sexual assault and one of stalking against CD. The first charge arose from AB pulling CD close and kissing her on the cheek at a tram stop after a friendly 35-minute conversation. The second arose from him fleetingly touching CD on the side of her waist from behind, over heavy clothing, while she queued at a shop. | Findings of guilt quashed on judicial review for jurisdictional error. The case marks the lower boundary of the element: fleeting, clothed, socially ambiguous contact was not established as contrary to community standards of acceptable conduct. |
| Contrasting application | Conduct instigated by an adult man for his own sexual gratification. | It was fully open to the jury to find that such conduct was "of a kind which right minded persons would consider to be contrary to community standards of decency". The purpose of the act and whether the accused sought or got sexual gratification are the statutory circumstances that drive the finding. |
The advocate's checklist¶
• Check the enumerated categories first, then do not stop there. The s 37(1) list is non-exhaustive, so a finding that the accused is not a teacher, coach or employer does not end the case — the Howes test still applies as a question of fact.
• Argue currency on any former-relationship fact pattern. Lydgate — the statute is in the present tense, and a terminated relationship cannot on its own prove the element. Force the Crown to identify the new, contemporaneous relationship it says was created.
• Anticipate the s 55 route around Lydgate. The former relationship remains admissible as context to show the accused exploited the residual influence to create a fresh relationship. That is where the Crown will go, so meet it directly.
• Do not concede on the absence of formality. Macfie and King show that de facto care defeats arguments based on the absence of legal custody, delegation, or a formal employment relationship. An overnight stay with accepted responsibility is often enough.
• Remember consent is irrelevant to liability. For ss 49C, 49E and 49L, even full, free and voluntary participation or initiation by the child is completely irrelevant to criminal liability.
• But knowledge of the primary facts is required. The Crown must prove the accused knew the facts founding the relationship. Genuine unawareness of that factual foundation defeats the element — though knowledge of the legal characterisation is not required.
• Identify which statutory defence you are running. s 49ZA is reasonable belief the child was not under care, supervision or authority; s 49X is reasonable belief the child was 18 or more. Both place the legal burden on the accused on the balance of probabilities.
• Build the age defence on specific evidence. Curtis — where the child made no representations about age, point to specific aspects of appearance, demeanour or behaviour, and to steps actually taken to verify age. A passive assumption will fail.
• Treat community standards as a separate element. It is cumulative with "sexual" and must be proved beyond reasonable doubt. Under s 49ZC the accused cannot rely on an honest and reasonable belief that the conduct was not sexual or not contrary to community standards.
• Argue the statutory circumstances, not general morality. The listed circumstances are the purpose of the act and whether the accused sought or got sexual arousal or gratification. Consent and belief in consent are expressly excluded — do not invite the jury to consider them on this element.
Currency watch¶
• 14 August 2026 — built from the source material. Confirm s 37(1) against the current consolidation, as the enumerated categories have been expanded over time and the religious-figure and out-of-home-carer limbs are comparatively recent additions.
• Check the standard sentence — s 49F(2A) sets a 4 year standard sentence for sexual activity in the presence of a child under 16. Standard sentence provisions are amended independently of the offence provisions.
• Cross-check the s 49 numbering — the community standards element appears at slightly different sub-paragraph numbers across ss 49D, 49E, 49F, 49G, 49H and 49I. Read the specific sub-paragraph for the offence charged before citing it.
• Watch the Summary Offences Act overlap — ss 49C, 49E and 49F exist in both Acts with entirely different content. Always name the Act.