7.3.7 - HistoricalSexual Offences[1]

7.3.7.3.1 - Bench Notes: Sexual Offences Against Children (Pre 1/1/92)

Overview

  1. The scope of the various sexual offences against children under the Crimes Act 1958 has changed over time. These can be divided into four discrete periods:
  2. Offences committed between 1 April 1959and 28 February 1981;
  3. Offences committed between 1 March 1981 and 4 August 1991;
  4. Offences committed between 5 August 1991 and 31 December 1991; and
  5. Offences committed on or after 1 January 1992.
  1. These Bench Notes examine the directions a judge must give when:
  2. A person is charged with a sexual offence against a child on or after 1 January 2010; and
  3. The offence is alleged to have been committed before 1 January 1992.
  1. The Bench Notes are divided into three broad areas:
  2. Sexual offences against a child under 10;
  3. Sexual offences against a child aged between 10 and 16;
  4. Sexual offences against a child aged between 16 and 18.

Sexual Offences Against a Child Under 10

Elements

  1. There are three elements to the statutory offences concerning children under 10. The prosecution must prove that:

i)The accused took part in an a proscribed sexual act with the complainant;

ii)The accused intended to take part in a proscribed sexual act; and

iii)The complainant was under the age of 10 at the time the proscribed sexual act took place (Crimes Act 1958 s46 (pre 1/3/1981), s47 (1/3/1981 – 4/8/1991), s45 (5/8/1991 – 31/12/1991)).

  1. Consent has never been a defence to this offence (Crimes Act 1958 s49 (pre 1/3/1981), s47 (1/3/1981 - 4/8/1991), s45 (5/8/1991 – 31/12/1991)).

Taking Part in a Proscribed Act of Sexual Penetration

  1. Over time, the nature of the proscribed sexual act has changed:
  2. Prior to 1 March 1981, the offence prohibited “unlawful carnal knowledge and abuse” of girls (Crimes Act 1958 s46);
  3. From 1 March 1981 to 4 August 1991, the offence prohibited “taking part in an act of sexual penetration”, and that phrase was defined by statute (the first statutory definition);
  4. From 5 August 1991 to 31 December 1991, a new statutory definition of “sexual penetration” applied to the offence (the second statutory definition).

Unlawful Carnal Knowledge and Abuse

  1. At common law, carnal knowledge only consisted of penetration of a vagina by a penis. Other forms of sexual penetration were dealt with under the offence of indecent assault (see, on similar though not identical legislation, R v McCormack [1969] 2 QB 442).
  2. This element was met when there was any penetration of the complainant’s labia by the penis (R v Lines (1844) 1 Car & K 393; Randall v R (1991) 53 A Crim R 380; R v DD (2007) 19 VR 143).
  3. From 5 August 1991, the Crimes Act 1958 defined vagina to include a surgically constructed vagina. It is unclear whether the common law recognised penetration of an artificially constructed sexual organ as sexual penetration (see R v Cogley [1989] VR 799; R v Harris & McGuiness (1988) 17 NSWLR 158).
  4. This element was met by penetration “to any extent”. Consequently:
  5. The penetration only needed to be slight or fleeing; and
  6. It was not necessary for the prosecution to prove that semen was emitted (see Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108; R v Pryor [2001] QCA 341).
  7. The meaning of the terms “unlawful” and “abuse” in the phrase “unlawful carnal knowledge and abuse” are not clear.
  8. While the term “unlawful” may mean “outside the bounds of marriage”, there is also authority indicating that the term is surplusage (compare R v R [1992] 1 AC 599 and R v Champan [1959] 1 QB 100, though neither case concerned the specific Victorian provisions).
  9. As a matter of prudence, the charge assumes that the prosecution must prove that the accused and complainant were not married in order to prove “unlawful carnal knowledge and abuse”.
  10. It is not necessary to use the phrase “carnal knowledge” when directing the jury about this element. The judge may instead use the term “sexual penetration”, as long as he or she limits the meaning of that phrase to its common law meaning (R v DD (2007) 19 VR 143).

“Sexual Penetration”: The First Definition (1/3/81- 4/8/91)

  1. From 1 March 1981 to 4 August 1991, the Crimes Act stated that “sexual penetration” was:
  2. The introduction (to any extent) of a person’s penis into the vagina, anus or mouth of another person of either sex; or
  3. The introduction (to any extent) of an object that is not part of the body, and which was manipulated by a person of either sex, into the vagina or anus of another person of either sex, other than as part of some generally accepted medical treatment (Crimes Act 1958 s2A).
  4. This definition removed the gendered nature of the offence, which previously could only be committed by a male against a female. Under this definition:
  5. Both males and females can be the victim of the offence; and
  6. Both males and females can commit the offence, by using an object that is not part of the body.
  7. It is unclear whether this definition uses the medical meaning of “vagina” (being the membranous passage or channel leading from the uterus to the vulva), or whether it should be interpreted in a manner consistent with the common law understanding of “sexual penetration” (which includes penetration of the external genitalia) (compare R v Lines (1844) 1 Car & K 393 and Holland v R (1993) 117 ALR 193. See also Randall v R (1991) 53 A Crim R 380 and R v AG (1997) 129 ACTR 1).[2] In cases where this is relevant, judges will need to engage in a process of statutory construction and will need to consider principles concerning the interpretation of ambiguous penal statutes and the interference with fundamental rights (see Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia (1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
  8. As was the case at common law, under this definition:
  9. The penetration only needed to be slight or fleeting (penetration “to any extent”) (Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108); and
  10. The prosecution did not need to prove the emission of semen (Crimes Act 1958 s2A).
  11. It is not sufficient for the relevant body part to have simply been touched. It must have been penetrated to some extent (Anderson v R [2010] VSCA 108).
  12. Subject to the statutory exception regarding penetration by an object as part of accepted medical treatment, the purpose of the penetration is irrelevant. It need not have been committed for the purposes of sexual gratification (R v Dunn 15/4/1992 CA NSW).

“Sexual Penetration”: The Second Definition (5/8-31/12/91)

  1. From 5 August 1991 to 31 December 1991, the Crimes Act stated that “sexual penetration” was:
  2. The introduction of a person’s penis into the vagina, anus or mouth of another person, whether or not there was emission of semen; or
  3. The introduction of a part of a person’s body other than the penis into the vagina or anus of another person, other than in the course of an appropriate and generally accepted medical or hygienic procedure; or
  4. The introduction of an object into the vagina or anus of another person, other than in the course of an appropriate and generally accepted medical or hygienic procedure (Crimes Act 1958 s37).

“Taking Part” in an Act of Sexual Penetration

  1. For offences committed from 1 March 1981 to 31 December 1991, the prosecution must prove that the accused “took part” in an act of sexual penetration (Crimes Act 1958 s47 (1/3/1981 – 4/8/1991), s45 (5/8/1991 – 31/12/1991)).
  2. Both parties to an act of sexual penetration are deemed to have “taken part” in that act (Crimes Act 1958 s2A (1/3/1981 – 4/8/1991), s37 (5/8/1991 – 31/12/1991)).
  3. This means that an accused may be found guilty of the offence whether he or she was sexually penetrating the complainant or was being sexually penetrated by the complainant (see R v JC [2000] ACTSC 72 and Randall v R (1991) 53 A Crim R 380).

Directing the Jury About the Meaning of “Vagina”

  1. The common law definition of vagina (and possibly the statutory definitions: see above) includes “the external genitalia”. It has been held that this phrase is not within ordinary usage and needs more explanation (R v AJS (2005) 12 VR 563; Anderson v R [2010] VSCA 108; R v MG [2010] VSCA 97).
  2. Consequently, where penetration is in issue, the judge should explain to the jury in precise and simple terms, what would constitute penetration of the vagina, and summarise the evidence that relates to that issue (R v AJS (2005) 12 VR 563. See also Randall v R (1991) 53 A Crim R 380; Anderson v R [2010] VSCA 108; R v MG [2010] VSCA 97).

Identifying the Penetrative Act

  1. While in most cases the prosecution will be able to particularise the method of penetration (e.g., the complainant was penetrated by a penis), in some cases this will not be possible. In such cases, it will be sufficient for the prosecution to particularise the method of penetration by reference to the relevant possibilities (e.g., the complainant was penetrated by a penis, a bodily part or some other object) (R v Castles (Ruling No.1) [2007] VSC 561).
  2. Where alternative possible methods of penetration are left to the jury, they do not need to unanimously agree about which of those methods was used. They only need to unanimously agree that penetration took place (R v Castles (Ruling No.1) [2007] VSC 561).

Intention to Take Part in the Proscribed Sexual Act

  1. The second element requires the accused to have intended to take part in the proscribed sexual act (Crimes Act 1958 s45(1)).
  2. The intention must have been to sexually penetrate or be penetrated. An intent to commit an indecent assault is not sufficient (Anderson v R [2010] VSCA 108).
  3. There will often be no issue about whether the act was intentional. For example, if there is evidence that the penetration took place over an extended period of time, there will ordinarily be no doubt about the accused’s mental state (Anderson v R [2010] VSCA 108).
  4. However, in some cases intent will be in issue. Where this is so, it is of paramount importance that the jury be directed about the prosecution’s obligation to establish intent beyond reasonable doubt (R v AJS (2005) 12 VR 563; MG v R [2010] VSCA 97; Anderson v R [2010] VSCA 108).
  5. For example, a clear direction about intention will be necessary where it is possible that any penetration that occurred was accidental. Such a possibility must be excluded for this element to be proven (Anderson v R [2010] VSCA 108; R v AJS (2005) 12 VR 563).

Child Under 10

  1. The third element requires the prosecution to prove that the complainant was under the age of 10 at the time the relevant act took place (Crimes Act 1958 s45(1)).
  2. As this is an element of the offence, the jury must find the accused not guilty if it cannot be satisfied beyond reasonable doubt that the complainant was under 10 at the time of the offence (compare Crimes Act 1958 s45 as amended by Crimes (Amendment) Act 2000).

Sexual Offences Against Children Aged 10 to 16

  1. While the name of the offence for unlawful sexual acts with children aged 10 to 16 has changed over time, the basic elements of the offence have remained the same. The prosecution must prove that:

i)The accused took part in a proscribed sexual act with the complainant;

ii)The accused intended to take part in that proscribed sexual act;

iii)The complainant was under the age of 16 at the time the proscribed sexual act took place; and

iv)The accused was not married to the complainant.

Taking Part in a Proscribed Sexual Act

  1. Over time, the nature of the proscribed sexual act has changed:
  2. Prior to 1 March 1981, the offence prohibited “unlawful carnal knowledge and abuse” of girls (Crimes Act 1958 s46);
  3. From 1 March 1981 to 4 August 1991, the offence prohibited “taking part in an act of sexual penetration”, and that phrase was defined by statute (the first statutory definition);
  4. From 5 August 1991 to 31 December 1991, a new statutory definition of “sexual penetration” applied (the second statutory definition).
  5. These changes are described above in relation to the first element of “Sexual Offences Against a Child Under 10”.

Intention to Take Part in the Proscribed Sexual Act

  1. The second element requires the accused to have intended to take part in the proscribed sexual act (Crimes Act 1958 s48(1)).
  2. This is identical to the second element of sexual penetration of a child aged under 10 (see above).

Child Aged between 10 and 16

  1. The third element requires the prosecution to prove that the complainant was between the age of 10 and 16 at the time the proscribed sexual act took place (Crimes Act 1958 s48(1)).
  2. As this is an element of the offence, the jury must find the accused not guilty if it cannot be satisfied beyond reasonable doubt that the complainant was aged between 10 and 16 at the time of the offence (compare Crimes Act 1958 s45 as amended by Crimes (Amendment) Act 2000).

Child and Accused Not Married

  1. For offences committed between 1 March 1981 and 1 January 1992, there is a fourth element. The prosecution must prove that the accused and the complainant were not married to one another (Crimes Act 1958 s48).
  2. It is unclear whether this is also a requirement for offences committed before 1 March 1981. This will depend on whether the word “unlawful” in the phrase “unlawful carnal knowledge” means “outside marriage”, or is mere surplusage (see “Unlawful Carnal Knowledge and Abuse” above).

Date of Offence

  1. Prior to 5 August 1991, a statutory limitation period of 12 months applied to this offence if the complainant was aged 12 or above.
  2. On 22 October 2014, section 74 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 commenced. This provision introduced Criminal Procedure Act 2009 section 7A and abolished “any immunity from prosecution arising because of the time limit” which previously applied in relation to these offences. The result is that for trials conducted after 22 October 2014, the prosecution does not need to prove that the complainant was under the age of 12 at the date of the offence. The prosecution will only need to prove that the child was aged between 10 and 16 at the date of the offence.

Aggravating Circumstances

  1. The Crimes Act 1958 has always included an aggravated form of the offence of sexual penetration of a child aged 10 to 16, for cases in which the accused was in a position of trust or authority over the complainant.
  2. The precise form of this aggravating circumstance has changed over time:
  3. Prior to 1 March 1981, the aggravating circumstance was that the accused was a schoolmaster or teacher and the complainant was his pupil;
  4. From 1 March 1981 to 31 December 1991, the aggravating circumstance was that the complainant was, either generally or at the time of the offence, under the care, supervision or authority of the accused.
  5. In the absence of a clarifying statutory provision,[3] it is likely that the imposition of an increased maximum penalty for offences committed in these circumstances means that the aggravated form of the offence is a separate offence from the basic offence of sexual penetration of a child aged between 10 and 16. If that is correct, then the prosecution must specifically charge the aggravated offence in the indictment, and the judge must direct the jury on the aggravating circumstance as an element of that offence (see R v Satalich (2001) 3 VR 231; R v Courtie [1984] AC 463; R v Hassett (1994) 76 A Crim R 19).

Care, Supervision or Authority

  1. The words “care, supervision or authority” are to be given their ordinary grammatical meaning (R v Howes (2000) 2 VR 141). For further information on this point, see Bench Notes: Sexual Penetration of a Child Under 16.

Defences

  1. The available statutory defences to the various sexual offences against children aged between 10 and 16 have changed over time.
  2. Many of these defences concern the existence of consent or the accused’s belief in the complainant’s consent. Where consent is in issue, the judge must direct the jury in accordance with the current statutory provisions on consent. The transitional provisions on the legislation that introduced changes to the law on consent state that the legislative changes apply to all proceedings commenced after the amending legislation, regardless of when the alleged offence was committed (see Crimes (Rape) Act 1991 s9 and Crimes Act 1958 s609). For information on the current meaning of consent, see Bench Notes: Consent and Awareness of Non-Consent.

Offences Committed Before 1 March 1981

  1. Prior to 1 March 1981, consent was not a defence unless the girl was older than or of the same age as the defendant (Crimes Act 1958 s49).

Offences Committed 1 March 1981 to 4 August 1991

  1. From 1 March 1981 to 4 August 1991, consent was only a defence if:
  2. The accused believed on reasonable grounds that the complainant was of or above the age of 16 years; or
  3. The accused was not more than 2 years older than the complainant (Crimes Act 1958 s48(4)).
  4. The accused also had a discrete defence if he or she believed, on reasonable grounds, that he or she was married to the complainant at the time of the alleged offence (Crimes Act 1958 s48(5)).

Offences Committed 5 August 1991 to 31 December 1991

  1. From 5 August 1991 to 31 December 1991, consent was a defence only if:
  2. The accused believed on reasonable grounds that the complainant was of or above the age of 16 years;
  3. The accused was not more than 2 years older than the complainant; or
  4. The accused believed on reasonable grounds that he or she was married to the child (Crimes Act 1958 s46(2)).
  5. During this period, having a belief in marriage was no longer a discrete defence. Instead, such a belief was merely a precondition for the availability of a defence of consent.

Age Difference

  1. For offences committed between 1 March 1981 and 31 December 1991, consent is available as a defence if the accused is not more than two years older than the complainant.
  2. This defence is not available where the accused’s actual age exceeds the complainant’s by anything more than 24 months. The availability of the defence is not determined by a measure limited to whole-years (Stannard v DPP [2010] VSCA 165).
  3. It is unclear whether a similar limitation applies to offences committed before 1 March 1981, where the defence of consent was available if the complainant was older than or the same age as the accused. In particular, it is not clear whether “the same age” means having the same date of birth, or includes the situation where the accused and complainant are, at the time of the alleged offence, the same age as measured in whole-years.

Reasonable Grounds

  1. For there to be “reasonable grounds” for a state of mind (such as a belief), there must exist facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104).

Burden of Proof

  1. Where there is an evidentiary basis for the defence of consent, the prosecution must disprove the existence of consent, or the grounds for a consent defence being available, beyond reasonable doubt (R v Mark & Elmazovski [2006] VSCA 251; R v Deblasis [2007] VSCA 297; R v Fagone [2008] VSCA 175. Cf R v Douglas [1985] VR 721).
  2. Judges should carefully explain the burden of proof to the jury in a way they can understand (R v Fagone [2008] VSCA 175).

Intoxication