Indecent Act With or In the Presence of a Child Under the Age of 16

by Doogue + George Criminal Defence Lawyers

Indecent Act With a Child Under 16 can cover a wide variety of offending. This is because there are is such a wide range of behaviours that can be considered indecent. To be considered indecent, the act needs to have a sexual connotation, or the person’s purpose needs to have been sexual gratification. The offence came into force on 5 August 1991.

Statutory provisions

Section 47 of the Crimes Act 1958 (Vic) (“the Act”) prohibits an indecent act with or in the presence of a child under the age of 16. Pursuant to section 47, an accused person commits this offence if they:

  1. Committed or were a party to the commission of the act;
  2. Wilfully;
  3. The act was indecent;
  4. The act was with or in the presence of the complainant; and
  5. The complainant was a child under the age of 16.

Consent is not a defence to the charge of indecent act unless:

  1. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
  2. The accused was not more than 2 years older than the child; or
  3. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.

Jurisdictional limits: Indecent Act With a Child Under 16

Indecent Act With or In the Presence of a Child Under the Age of 16 will be heard by a judge and jury in the County Court or by a magistrate in the Magistrates’ Court. That depends on the Magistrates’ Court considering it appropriate and the accused consenting.

In making this determination, the magistrate will consider:

  1. the seriousness of the charge
  2. the adequacy of sentences available to the court (the maximum term of imprisonment that a magistrate can impose for a single offence is two years imprisonment and the maximum aggregate (total) sentence that a magistrate can impose is five years imprisonment)
  3. whether a co-accused is charged with the same offence
  4. any other matters the court considers relevant.

Elements of Indecent Act With or In the Presence of a Child Under 16

There are five elements that constitute the offence. The prosecution must prove each of them ‘beyond reasonable doubt’ in order to prove their case against the accused person. If the prosecution is unable to do this, the accused is not guilty of the offence.

If the offence of Indecent Act With a Child Under 16 was alleged to have been committed before 22 October 2014, then there is a sixth element of the offence which relates to whether or not the accused and the complainant were married.

Element 1: The accused committed or was party to the commission of the act

The prosecution need not prove that the accused performed the physical act themselves to prove Indecent Act With or In the Presence of a Child Under the Age of 16. It is enough if they were ‘party to’ the act in some way. Whether or not an accused was ‘party to’ an act can be a complicated legal question.

Element 2: The accused did so wilfully

This element is focused upon the accused’s state of mind.

The accused must wilfully commit, or wilfully be a part to the commission of the Indecent Act With or In the Presence of a Child Under the Age of 16. It seems likely that the term ‘wilfully’ means intentionally.

The question of whether the accused person must wilfully perform the indecent act, or wilfully perform the indecent act with or in the presence of a child, has not been judicially determined.

Element 3: The act was indecent

The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety, an affront to modesty, or an act which right-minded persons would consider to be contrary to community standards of decency. The test of indecency has remained broad because ‘indecent acts are as various as the human imagination’.

In R v Harkin, the court found that there needs to be a sexual connotation for an act to be indecent. However even where no objective sexual connotation arises from the act, if the offender’s purpose was sexual gratification, his or her intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.

In Curtis v The Queen, the accused had urged two complainants, each aged 14, to kiss. It was common ground that their participation was consensual. On appeal it was argued that there could be no act of indecency in two teenagers of the same age kissing each other. However, the court disagreed and found that it was open for the jury to decide that the indecency did not arise from the act of kissing but in the instigation of the act by a 24-year old man for his own sexual gratification.

Indecent act covers sexual acts other than sexual penetration (which is rape).

Element 4: The accused committed the act with or in the presence of the complainant

‘With’

‘With’ takes the meaning of against or directed towards. It does not mean with the consent of.

Aside from a situation where the accused committed an indecent act by making physical contact with the other party, a person may also commit an act of indecency even though he or she plays a totally passive role. The English Court of Appeal upheld the conviction of an accused, when a girl of 8 put a hand on his penis and left it there for five minutes and he did nothing overtly to encourage the child. Such inactivity could amount to an invitation to continue and these circumstances constituted a positive act to make out the offence.

‘In the presence of…’

There is no requirement that there be any physical contact between the accused and the victim at all. The words require the presence of the child in the proximity of the accused. In R v Coffey, the accused requested the child to perform a strip dance down to his underpants and whilst the child performed, he fondled his penis. This constituted an indecent act in the presence of a child.

Element 5: The complainant was under the age of 16 years

The prosecution must establish that the conduct occurred when the complainant was under 16 years of age.

Possible defences: Indecent Act With a Child Under 16

Consent and belief that the complainant was older than 16

Consent is available as a defence where the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older.

Consent and married

The accused may also defend the allegations on the basis that they are married to the complainant, and the complainant consented. The accused must prove to the court, on the balance of probabilities, that they believed that they were married to the complainant at the time of the relevant conduct.

Consent and not more than 2 years older than the complainant

An accused may also defend the matter if they were no more than 2 years older than the complainant and the complainant consented.

If the age gap is in issue, generally the prosecution must prove beyond reasonable doubt either that there was no consent, or that the age gap is over 2 years.

An age difference of not more than 2 years is measured from the dates of birth of the complainant and the offender. The court does not round off the ages of the parties to the whole number of years.

For example, if, on the date of the offence of Indecent Act With a Child Under 16, the victim is aged 13 years and 5 months and the accused is aged 15 years and 6 months, the accused is more than 2 years older than the child and so consent is not a defence.

Importantly, section 47(3) of the Act states that if consent is in dispute, the prosecution carries the burden of proving the lack of consent.

If the offence is alleged to have been committed before 1 December 2006, the defence does not need to prove (on balance) either that they believe they were married to the complainant or that they believed on reasonable grounds that the child was 16 or older. For pre-December 2006 offences, if there is an evidentiary basis to support either or both of these defences, then the prosecution must disprove the matter, beyond reasonable doubt.

Other defences for Indecent Act With a Child Under 16

Other defences include wrongful identification, mental impairment, and duress.

Cases wherein the complainant is lying are also not uncommon. This can often be the case in historical matters where the complainant’s allegations surface years down the track often borne out of anger or revenge, sadly enough. In such a case where there is a factual dispute, the prosecution bear the burden of proving matters alleged beyond reasonable doubt.

Sentencing outcomes in the Magistrates’ Courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Indecent Act With a Child Under 16 matters in the Magistrates’ Court between July 2011 to June 2014. Over the three-year period, 271 cases were before the Court. 21.0% of people sentenced received a period of imprisonment, 15.1% received a wholly-suspended period of imprisonment, 4.4% received a partially-suspended sentence, 6.3% received a fine, and about 43.9% received some form of community-based order.

The most common length of imprisonment imposed was between 12 and 18 months with 22.8% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Indecent Act With Child Under 16 matters in the County and Supreme Courts between July 2009 to June 2014. Over the five year period, 1,697 cases were before the Court. 83.4% of people sentenced received a period of imprisonment, 5.4% received a wholly-suspended period of imprisonment, 3.2% received a partially-suspended sentence, and about 6.2% received some form of community-based order.

The most common length of imprisonment imposed was between 1 and 2 years with 46.6% sentenced within that range.

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore for all offences committed on or after 1 September 2013, they will not have this available as a sentencing option.

 

Have you been charged with the offence of Indecent Act With or In the Presence of a Child Under the Age of 16? Get legal advice from a criminal defence lawyer. Doogue + George Defence Lawyers has accredited criminal law specialists who are experienced in sexual offence cases including child sex offence charges.

To view case studies related to this offence, visit this page where this article was originally published: https://www.criminal-lawyers.com.au/offences/indecent-act-with-child-under-age-16.



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