Causing a child under the age of 16 to be present during sexual activity
49H Causing a child under the age of 16 to be present during sexual activity
S. 49H inserted by No. 47/2016 s. 16.
A person (A) commits an offence if—
another person (B) engages in an activity; and
the activity is sexual; and
another person (C) is present when B engages in the activity; and
A intentionally causes or allows C to be present when B engages in the activity; and
C is a child under the age of 16 years; and
A's causing or allowing C to be present when B engages in the activity is contrary to community standards of acceptable conduct.
A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
S. 49H(2A) inserted by No. 34/2017 s. 31(1).
The standard sentence for an offence against subsection (1) is 4 years.
Whether or not causing or allowing C to be present when B engages in the activity is contrary to community standards of acceptable conduct depends on the circumstances.
For the purposes of subsection (3)—
the circumstances include—
the purpose of the activity; and
whether A seeks or gets sexual arousal or sexual gratification from B engaging in the activity or from the presence of C;
the circumstances do not include—
whether C consents—
to being present when B engages in the activity; or
to B engaging in the activity; or
whether A believes that C consents—
to being present when B engages in the activity; or
to B engaging in the activity.
For the purposes of subsection (1), when B engages in an activity, C may be present—
in person; or
by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by C in real time or close to real time.
It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as C was in Victoria at the time at which that conduct occurred.
It is immaterial that C 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 causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.
Note 4 to s. 49H inserted by No. 34/2017 s. 31(2).
4 See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.
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