CRIMES ACT 1958 - SECT 49F Sexual activity in the presence of a child under the age of 16

CRIMES ACT 1958 - SECT 49F

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

        (a)     A intentionally engages in an activity; and

        (b)     the activity is sexual; and

        (c)     another person (B) is present when A engages in the activity; 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).

S. 49F(2A) inserted by No. 34/2017 s. 30(1).

    (2A)     The standard sentence for an offence against subsection (1) is 4 years.

    (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.

Note 4 to s. 49F inserted by No. 34/2017 s. 30(2).

4     See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

S. 49G inserted by No. 47/2016 s. 16.