Sexual penetration of a child under the age of 16. The offence of sexual intercourse-sexual penetration of a child between 10 and 16 is contained within Section 66C of the Crimes Act 1900 (NSW)(henceforth, the Act). The Section reflects the premise that children, under the age of 16 are not mature enough to consent to meaningful sexual penetration and thus, the law, takes the position of parens patriae.
The definition of ‘sexual intercourse’ for the purpose of this offence is defined as the penetration of the genitals of a female or the anus or mouth of any person by the body of another person or an object manipulated by another person. Sexual intercourse also includes cunnilingus.
This serious crime is made indictable under Section 66C of the Act. Thereby, the subsections 1-4 are separated into acts against children who are between 10 and 14 and those who are between 14 and 16.
- For a child between 10 and 14: If any person has sexual intercourse with a child who is 10 or above and under the age of 14 is liable to imprisonment for 16 years (S 66C (1))
- For a child between 14 and 16: If any person has sexual intercourse with a child who is 14 or above and under the age of 16 is liable to imprisonment for 10 years (S 66C (3))
If aggravating circumstances exist,
- For a child between 10 and 14: If aggravating circumstances exist, the period of imprisonment is 20 years (S 66C (2))
- For a child between 14 and 16: If aggravating circumstances exist, the period of imprisonment is 12 years (S 66C (4))
As per the Act, the aggravating circumstances (specified below) may increase the duration of imprisonment for both, children between the ages of 10 and 14, and those between the ages of 14 and 16. Notably, consent is not a mitigating factor or defence. Children are to be protected from sexual conduct, even if they are willing participants.
A Aggravating Circumstances
The Act denotes ‘circumstances of aggravation’ to mean: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive person or instrument or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
As such, the most significant aspect which determines whether a particular offence is to be places in the spectrum of offences which pertain to sexual intercourse with children is the degree to which the offender is seen to have exploited the youth of the victim (R v Sea (1990) NSWCCA). This is reflected in Section 66C, Subsection 5 (h) which refers to the alleged offender depriving the alleged victim of his/her liberty for a period before of after the commission of such an offence.
Moreover, the Act provides that a person is ‘under the authority of another person’ if the person is in the care, or under the supervision or authority, of the other person as seen in Section 66C, Subsection 5(d). Similarly, in relation to Section 66C, Subsection 5(f), the Act provides that a person has a “cognitive impairment” if the person has: an intellectual disability, developmental disorder, neurological disorder, Dementia, a severe mental illness or a brain injury that results in the person requiring supervision or social habilitation in connection with daily life activities.
Further, it is an obvious aggravating feature if the offender was in a position of trust and violated that trust by sexually assaulting the child as noted in the case of R v Muldoon. In essence, this breach of trust is intended to encompass those who, by virtue of an established and ongoing relationship that involves care, supervision or authority, may be in a position to exploit or take advantage of the influence which grows out of the relationship. Legal right or power is not required for the relationship to prove sufficient. This includes, but is not limited to relationships which involve students and teachers, family friends, foster parents, employers, health professionals, counsellors and youth workers.
It should be noted that an attempt to commit such an act bears the same consequence as actually committing the act as provided by in Section 66D of the Act.
B Evidence Required
The onus rests on the prosecution to prove that sexual intercourse with a child under the age of 16 has occurred. In order to do prove such an occurrence, the prosecution may, among other things call up numerous types of evidence. These include recorded interviews with the alleged victim, and complaint evidence, such as what the child said to another in relation to the incident. Factual evidence, such as DNA evidence and medical examination of the complaint may also be called upon. Often times, evidence introduced by the prosecution also includes an electronically recorded interview with a suspected person (ERISP).
Therefore, if you have been charged with a sex offence of sexual penetration of a child under the age of 16, it is essential that you see an expert criminal lawyer immediately. If you are pleading guilty to the offence, there may be ways by which you could minimise your sentence through the help of an experienced Sexual Assault Defence lawyer.