Untitled document

Crimes Amendment (Sexual Offences) Act 2016

No. 47 of 2016

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Crimes Act 1958

3Subdivision (5) of Division 1 of Part I of the Crimes Act 1958 substituted

4Consent

5Section 35 substituted

6Objectives of Subdivisions 8A to 8G

7Guiding principles

8Heading to Subdivision (8A) of Division 1 of Part I of the Crimes Act 1958 substituted

9Sections 37C to 37H repealed

10Rape

11Rape by compelling sexual penetration

12Sexual assault

13Sexual assault by compelling sexual touching

14Threat to commit a sexual offence

15Subdivision (8A) of Division 1 of Part I of the Crimes Act 1958 amended

16Division 1 of Part I of the Crimes Act 1958 amended

17Abrogation of obsolete rules of law

18Repeal of Subdivisions (13) and (14) of Division 1 of Part I

19Maximum term of imprisonment for certain common law offences

20Confidentiality

21Alternative verdicts for certain charges of sexual offences

22New section 629 inserted

23Schedule 8—forensic sample offences

Part 3—Amendment of Summary Offences Act 1966

24Obscene, indecent, threatening language and behaviour etc. in public

25Section 19 substituted

Part 4—Amendment of Jury Directions Act 2015

26Application of Division

27Direction on consent

28Direction on reasonable belief in consent

29What must be proved beyond reasonable doubt

30New clause 2 of Schedule 1 inserted

Part 5—Amendment of certain Acts

31Accident Towing Services Act 2007

32Bus Safety Act 2009

33Child Wellbeing and Safety Act 2005

34Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

35Confiscation Act 1997

36Confiscation Act 1997—new section 191 inserted

37Criminal Procedure Act 2009

38Education and Training Reform Act 2006

39Evidence (Miscellaneous Provisions) Act 1958

40Judicial Proceedings Reports Act 1958

41Sentencing Act 1991

42Serious Sex Offenders (Detention and Supervision) Act 2009

43Sex Offenders Registration Act 2004

44Sex Work Act 1994

45Summary Offences Act 1966

46Transport (Compliance and Miscellaneous) Act 1983

47Victims of Crime Assistance Act 1996

48Victoria Police Act 2013

49Working with Children Act 2005

Part 6—Repeal of amending Act

50Repeal of amending Act

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Endnotes

1      General information

Crimes Amendment (Sexual Offences) Act 2016

No. 47 of 2016

[Assented to 6 September 2016]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Crimes Act 1958 in relation to sexual and certain other offences; and

(b)to amend the Summary Offences Act 1966 in relation to sexual exposure and indecent, offensive and insulting behaviour; and

(c)to amend the Jury Directions Act 2015 in relation to directions on consent, and reasonable belief in consent, in sexual offence cases; and

(d)to make minor amendments to certain Acts.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day.

Part 2—Amendment of Crimes Act 1958

3Subdivision (5) of Division 1 of Part I of the Crimes Act 1958 substituted

For Subdivision (5) of Division 1 of Part I of the Crimes Act 1958 substitute—

"(5) Corpses

34BSexual activity with the corpse of a human being

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

(a)A intentionally engages in an activity involving the corpse of a human being; and

(b)the activity is sexual.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)For the purposes of subsection (1)—

(a)an activity is sexual if it would involve sexual penetration as defined by section 35A were the corpse a person;

(b)an activity may be sexual due to—

(i)the area of A's body or of the corpse involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female, the breasts; or

(ii) the fact that A seeks or gets sexual arousal or sexual gratification from the activity; or

(iii) any other aspect of the activity, including the circumstances in which it takes place.

Notes

1     Exceptions apply to this offence—see section 34BD.

2     A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 34BE.

34BARemoval of body parts from the corpse of a human being

(1)A person (A) commits an offence if A intentionally removes a body part from the corpse of a human being.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

Note

Exceptions apply to this offence—see section 34BD.

34BBOffensive conduct involving human remains

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

(a)A intentionally engages in conduct involving human remains; and

(b)the conduct is offensive.

(2)A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).

(3)An offence against subsection (1) is a summary offence.

(4)For the purposes of subsection (1), conduct is offensive if, in all the circumstances,

it is likely to arouse significant anger, resentment, outrage, disgust or repulsion in the minds of reasonable persons.

(5)In this section—

human remains has the same meaning as in the Cemeteries and Crematoria Act 2003.

Notes

1     Exceptions apply to this offence—see section 34BD.

2     A mistaken but honest and reasonable belief that the conduct was not offensive is not a defence to this offence—see section 34BE.

34BCLocation of corpse or human remains immaterial

(1)For the purposes of sections 34B and 34BA, it is immaterial whether the corpse is in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.

(2)For the purposes of section 34BB, it is immaterial whether the human remains are in a public cemetery within the meaning of the Cemeteries and Crematoria Act 2003 or at any other place.

34BDExceptions

A does not commit an offence against a provision of this Subdivision if A's conduct occurs in the course of—

(a)a procedure carried out in good faith for the purpose of preparing the corpse or human remains for cremation or for interment within the meaning of the Cemeteries and Crematoria Act 2003; or

(b)any other lawful procedure carried out in good faith for medical, hygienic, scientific, forensic or law enforcement purposes.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.

34BENo defence of mistaken but honest and reasonable belief that activity was not sexual or conduct was not offensive

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a)for an offence against section 34B(1)—the activity was not sexual; or

(b)for an offence against section 34BB(1)—the conduct was not offensive.

Note

The reference to A in this section is a reference to the same A referred to in the offence provisions in this Subdivision.".

4Consent

Section 34C of the Crimes Act 1958 is repealed.

5Section 35 substituted

For section 35 of the Crimes Act 1958 substitute—

"35   Definitions

(1)In Subdivisions (8A) to (8FA)—

animal means any animal (other than a human being), whether vertebrate or not;

care, supervision or authority—see section 37;

consent—see section 36;

domestic partner of a person means—

(a)a person who is in a registered domestic relationship with the person; or

(b)a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender or gender identity);

Note

See also subsection (2).

sexual, in relation to an activity—see section 35D;

sexual, in relation to touching—see section 35B;

sexual penetration—see section 35A;

take part in a sexual act—see section 35C;

touching—see section 35B;

vagina includes—

(a)the external genitalia; and

(b)a surgically constructed vagina.

(2)For the purposes of the definition of domestic partner in subsection (1)—

(a)registered domestic relationship has the same meaning as in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

35ASexual penetration

(1)A person (A) sexually penetrates another person (B) if—

(a)A introduces (to any extent) a part of A's body or an object into B's vagina; or

(b)A introduces (to any extent) a part of A's body or an object into B's anus; or

(c)A introduces (to any extent) their penis into B's mouth; or

(d)A, having introduced a part of A's body or an object into B's vagina, continues to keep it there; or

(e)A, having introduced a part of A's body or an object into B's anus, continues to keep it there; or

(f)A, having introduced their penis into B's mouth, continues to keep it there.

(2)A person sexually penetrates themselves if—

(a)the person introduces (to any extent) a part of their body or an object into their own vagina; or

(b)the person introduces (to any extent) a part of their body or an object into their own anus; or

(c)having introduced a part of their body or an object into their own vagina, they continue to keep it there; or

(d)having introduced a part of their body or an object into their own anus, they continue to keep it there.

(3)A person (A) sexually penetrates an animal if A engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (B).

(4)A person (B) is sexually penetrated by an animal if B engages in conduct with the animal that would involve sexual penetration as defined by subsection (1) were the animal another person (A).

(5)In relation to sexual penetration of an animal, a reference to the vagina or anus includes a reference to any similar part.

Note

References to A and B are included to help readers understand the definition of sexual penetration. The same technique is used in the offence provisions involving sexual penetration. There is no connection between the A and B referred to in one section and the A and B referred to in another section.

35BTouching

(1)Touching may be done—

(a)with any part of the body; or

(b)with anything else; or

(c)through anything, including anything worn by the person doing the touching or by the person touched.

(2)Touching may be sexual due to—

(a)the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b)the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c)any other aspect of the touching, including the circumstances in which it is done.

35CTaking part in a sexual act

A person takes part in a sexual act if—

(a)the person is sexually penetrated or sexually touched—

(i)by another person; or

(ii)by an animal; or

(b)the person sexually penetrates or sexually touches—

(i)another person; or

(ii)themselves; or

(iii)an animal.

35DSexual activity

An activity may be sexual due to—

(a)the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b)the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or

(c)any other aspect of the activity, including the circumstances in which it is engaged in.

Example

A watches pornography in the presence of A's daughter (B) and her friend (C).

36Consent

(1)For the purposes of Subdivisions (8A) to (8E), consent means free agreement.

(2)Circumstances in which a person does not consent to an act include, but are not limited to, the following—

(a)the person submits to the act because of force or the fear of force, whether to that person or someone else;

(b)the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;

(c)the person submits to the act because the person is unlawfully detained;

(d)the person is asleep or unconscious;

(e)the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

(f)the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

Note

This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

(g)the person is incapable of understanding the sexual nature of the act;

(h)the person is mistaken about the sexual nature of the act;

(i)the person is mistaken about the identity of any other person involved in the act;

(j)the person mistakenly believes that the act is for medical or hygienic purposes;

(k)if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;

(l)the person does not say or do anything to indicate consent to the act;

(m)having given consent to the act, the person later withdraws consent to the act taking place or continuing.

36AReasonable belief in consent

(1)Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.

(2)Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.

36BEffect of intoxication on reasonable belief

(1)In determining whether a person who is intoxicated has a reasonable belief at any time—

(a)if the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time; and

(b)if the intoxication is not self-induced, regard must be had to the standard of a reasonable person who is intoxicated to the same extent as that person and who is in the same circumstances as that person at the relevant time.

(2)For the purposes of this section, intoxication is self-induced unless it came about—

(a)involuntarily; or

(b)because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or

(c)from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or

(d)from the use of a drug for which a prescription is not required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.

(3)However, intoxication that comes about in the circumstances referred to in subsection (2)(c) or (d) is self-induced if the person using the drug knew, or had reason to believe, when taking the drug that it would significantly impair the person's judgement or control.

37Care, supervision or authority

(1)Without limiting the circumstances in which a child is under the care, supervision or authority of a person, a person (A) has a child (B) under their care, supervision or authority if A is—

(a)B's parent or step-parent; or

(b)B's teacher; or

(c)B's employer; or

(d)B's youth worker; or

(e)B's sports coach; or

(f)B's counsellor; or

(g)B's health professional; or

(h)a person who has parental responsibility (within the meaning of the Children, Youth and Families Act 2005) for B; or

(i)a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to B or has authority over B; or

(j)an out of home carer (within the meaning given by section 74 of the Children, Youth and Families Act 2005) of B; or

(k)a police officer acting in the course of their duty in respect of B; or

(l)employed in, or providing services in, a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of their duty in respect of B.

(2)In this section—

parent includes—

(a)a parent by operation of the Adoption Act 1984; and

(b)a parent by operation of the Status of Children Act 1974;

step-parent, in relation to a person, includes the spouse or domestic partner of the person's parent.".

6Objectives of Subdivisions 8A to 8G

In section 37A(b) of the Crimes Act 1958, after "persons with a cognitive impairment" insert "or mental illness".

7Guiding principles

In section 37B(c) of the Crimes Act 1958, after "persons with a cognitive impairment" insert "or mental illness".

8Heading to Subdivision (8A) of Division 1 of Part I of the Crimes Act 1958 substituted

For the heading to Subdivision (8A) of Division 1 of Part I of the Crimes Act 1958 substitute—

"(8A) Rape, sexual assault and associated sexual offences".

9Sections 37C to 37H repealed

Sections 37C to 37H of the Crimes Act 1958 are repealed.

10Rape

(1)Section 38(3) of the Crimes Act 1958 is repealed.

(2)At the foot of section 38 of the Crimes Act 1958 insert—

"Note

An exception applies to this offence—see section 48A.".

11Rape by compelling sexual penetration

(1)For section 39(1) of the Crimes Act 1958 substitute—

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

(a)A intentionally causes another person (B)—

(i)to sexually penetrate A; or

(ii)to sexually penetrate themselves; or

(iii)to sexually penetrate another person (C) or an animal; or

(iv)to be sexually penetrated by C or by an animal; and

(b)B does not consent to the sexual penetration; and

(c)A does not reasonably believe that B consents to the sexual penetration.".

(2)Section 39(3) of the Crimes Act 1958 is repealed.

(3)At the foot of section 39 of the Crimes Act 1958 insert—

"Note

Exceptions apply to this offence—see section 48A.".

12Sexual assault

(1)Section 40(3) and (4) of the Crimes Act 1958 is repealed.

(2)For the note at the foot of section 40 of the Crimes Act 1958 substitute—

"Notes

1      An exception applies to this offence—see section 48A.

2     A mistaken but honest and reasonable belief that the touching was not sexual is not a defence to this offence—see section 48B.".

13Sexual assault by compelling sexual touching

(1)For section 41(1)(a) of the Crimes Act 1958 substitute—

"(a)A intentionally causes another person (B)—

(i)to touch A; or

(ii)to touch themselves; or

(iii)to touch another person (C) or an animal; or

(iv)to be touched by C or by an animal; and".

(2)Section 41(3) and (4) of the Crimes Act 1958 is repealed.

(3)For the note at the foot of section 41 of the Crimes Act 1958 substitute—

"Notes

1     Exceptions apply to this offence—see section 48A.

2     A mistaken but honest and reasonable belief that the touching was not sexual is not a defence to this offence—see section 48B.".

14Threat to commit a sexual offence

(1)In section 43(2) of the Crimes Act 1958—

(a)in paragraph (b)(v), for "animal." substitute "animal;";

(b)after paragraph (b) insert—

"(c)to cause B or C, without B or C's consent, to be sexually penetrated or sexually touched by another person or by an animal.".

(2)For section 43(4) of the Crimes Act 1958 substitute—

"(4)For the purposes of this section, a threat may be made by words or conduct and may be explicit or implicit.".

(3)The note at the foot of section 43 of the Crimes Act 1958 is repealed.

15Subdivision (8A) of Division 1 of Part I of the Crimes Act 1958 amended

After section 43 of the Crimes Act 1958 insert—

"44   Procuring sexual act by threat

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

(a)A makes a threat to another person (B) that A will cause harm of any kind to B, another person or an animal; and

(b)A intends that B will believe, or believes that B will probably believe, that A will cause that harm; and

(c)as a result of A's threat, B or another person takes part (whether at the time the threat is made or at a later time) in a sexual act with A or another person; and

(d)A intends that, as a result of A's threat, an outcome mentioned in paragraph (c) will occur.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)For the purposes of subsection (1), a threat may be made by words or conduct and may be explicit or implicit.

(4)For the purposes of subsection (1)(c), a person who takes part in a sexual act with A or another person may or may not be the person to whom A has threatened to cause harm.

Note

See section 35C for the meaning of taking part in a sexual act.

45Procuring sexual act by fraud

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

(a)A makes a false or misleading representation; and

(b)A knows that—

(i)the representation is false or misleading; or

(ii)the representation is probably false or misleading; and

(c)as a result of A's representation, another person (B) takes part (whether at the time the representation is made or at a later time) in a sexual act with A or another person; and

(d)A intends that, as a result of A's representation, an outcome mentioned in paragraph (c) will occur.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)For the purposes of subsection (1), a false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit.

Note

See section 35C for the meaning of taking part in a sexual act.

46Administration of an intoxicating substance for a sexual purpose

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

(a)A—

(i)administers an intoxicating substance to another person (B); or

(ii)causes B to take an intoxicating substance; or

(iii)causes another person (C) to administer an intoxicating substance to B; and

(b)A intends that the intoxicating substance—

(i)will impair B's capacity to give, withhold or withdraw consent to taking part in a sexual act; and

(ii)will facilitate B taking part in a sexual act with A or another person.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)In this section—

intoxicating substance includes any substance that affects a person's senses or understanding.

Note

See section 35C for the meaning of taking part in a sexual act.

47Abduction or detention for a sexual purpose

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

(a)A—

(i)takes away or detains another person (B); or

(ii)causes B to be taken away or detained by another person; and

(b)B does not consent to being taken away or detained; and

(c)A knows that—

(i)B does not consent to being taken away or detained; or

(ii)B probably does not consent to being taken away or detained; and

(d)A intends that—

(i)B will take part in a sexual act with A or another person (C) or both; or

(ii)A or C will marry B (whether or not B consents to being married).

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)It is immaterial that the law prohibits or would not recognise (for whatever reason) a marriage between A and B or between C and B.

Note

See section 35C for the meaning of taking part in a sexual act.

48Sexual activity directed at another person

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

(a)A engages in an activity; and

(b)the activity is sexual; and

(c)another person (B) sees the activity or a part of the activity; and

(d)A knows that B will see, or will probably see, the activity or a part of the activity; and

(e)A—

(i)intends that B will experience fear or distress from seeing the activity or a part of the activity; or

(ii)knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

Note

A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 48B.

48AExceptions—medical, hygienic, veterinary, agricultural or scientific purposes

(1)A does not commit an offence against—

(a)section 38(1) or 40(1)—if the sexual penetration or touching (as the case requires) is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes; or

(b)section 39(1) or 41(1)—if the sexual penetration or touching (as the case requires) is of a person and is caused by A to be done in the course of a procedure carried out in good faith for medical or hygienic purposes.

(2)A does not commit an offence against section 39(1) or 41(1)—if the sexual penetration or touching (as the case requires) is of an animal and is caused by A to be done in the course of a procedure being carried out in good faith for veterinary or agricultural purposes or scientific research purposes.

Note

The reference to A in this section is a reference to the same A referred to in sections 38, 39, 40 and 41.

48BNo defence of mistaken but honest and reasonable belief that touching or activity was not sexual

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a)for an offence against section 40(1) or 41(1)—the touching was not sexual; or

(b)for an offence against section 48(1)—the activity was not sexual.

Note

The reference to A in this section is a reference to the same A referred to in sections 40, 41 and 48.".

16Division 1 of Part I of the Crimes Act 1958 amended

For Subdivisions (8B), (8C), (8D), (8E), (8EAA), (8EA) and (8F) of Division 1 of Part I of the Crimes Act 1958 substitute—

"(8B) Sexual offences against children

49ASexual penetration of a child under the age of 12

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

(a)A intentionally—

(i)sexually penetrates another person (B); or

(ii)causes or allows B to sexually penetrate A; or

(iii)causes B—

(A)to sexually penetrate themselves; or

(B)to sexually penetrate another person (C); or

(C)to be sexually penetrated by C; and

(b)B is a child under the age of 12 years.

(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

Notes

1     An exception applies to this offence—see section 49T.

2     A mistaken but honest and reasonable belief that B was 12 years of age or more is not a defence to this offence—see section 49ZC.

49BSexual penetration of a child under the age of 16

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

(a)A intentionally—

(i)sexually penetrates another person (B); or

(ii)causes or allows B to sexually penetrate A; or

(iii)causes B—

(A)to sexually penetrate themselves; or

(B)to sexually penetrate another person (C); or

(C)to be sexually penetrated by C; and

(b)B is a child under the age of 16 years.

(2)A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

Notes

1     An exception applies to this offence—see section 49T.

2     Defences apply to this offence—see sections 49V and 49W.

49CSexual penetration of a child aged 16 or 17 under care, supervision or authority

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

(a)A intentionally—

(i)sexually penetrates another person (B); or

(ii)causes or allows B to sexually penetrate A; or

(iii)causes B—

(A)to sexually penetrate themselves; or

(B)to sexually penetrate another person (C); or

(C)to be sexually penetrated by C; and

(b)B is—

(i)a child aged 16 or 17 years; and

(ii)under A's care, supervision or authority.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Notes

1     Exceptions apply to this offence—see sections 49T and 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

49DSexual assault of a child under the age of 16

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

(a)A intentionally—

(i)touches another person (B); or

(ii)causes or allows B to touch A; or

(iii)causes B—

(A)to touch, or to continue to touch, themselves; or

(B)to touch, or to continue to touch, another person (C); or

(C)to be touched, or to continue to be touched, by C; and

(b)B is a child under the age of 16 years; and

(c)the touching is—

(i)sexual; and

(ii)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).

(3)Whether or not the touching 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 touching; and

(ii)whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b)the circumstances do not include—

(i)whether B consents to the touching; or

(ii)whether A believes that B consents to the touching.

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 touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

49ESexual assault of a child aged 16 or 17 under care, supervision or authority

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

(a)A intentionally—

(i)touches another person (B); or

(ii)causes or allows B to touch A; or

(iii)causes B—

(A)to touch, or to continue to touch, themselves; or

(B)to touch, or to continue to touch, another person (C); or

(C)to be touched, or to continue to be touched, by C; and

(b)B is—

(i)a child aged 16 or 17 years; and

(ii)under A's care, supervision or authority; and

(c)the touching is—

(i)sexual; and

(ii)contrary to community standards of acceptable conduct.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)Whether or not the touching 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 touching; and

(ii)whether A seeks or gets sexual arousal or sexual gratification from the touching;

(b)the circumstances do not include—

(i)whether B consents to the touching; or

(ii)whether A believes that B consents to the touching.

Notes

1     An exception applies to this offence—see section 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

3     A mistaken but honest and reasonable belief that the touching was not sexual or contrary to community standards of acceptable conduct is not a defence to this offence—see section 49ZC.

49FSexual activity in the presence of a child under the age of 16

(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).

(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.

49GSexual activity in the presence of a child aged 16 or 17 under care, supervision or authority

(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—

(i)a child aged 16 or 17 years; and

(ii)under A's care, supervision or authority; 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 6 imprisonment (5 years maximum).

(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 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

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.

49HCausing a child under the age of 16 to be present during sexual activity

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

(a)another person (B) engages in an activity; and

(b)the activity is sexual; and

(c)another person (C) is present when B engages in the activity; and

(d)A intentionally causes or allows C to be present when B engages in the activity; and

(e)C is a child under the age of 16 years; and

(f)A's causing or allowing C to be present when B engages in the activity 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).

(3)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.

(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 B engaging in the activity or from the presence of C;

(b)the circumstances do not include—

(i)whether C consents—

(A)to being present when B engages in the activity; or

(B)to B engaging in the activity; or

(ii)whether A believes that C consents—

(A)to being present when B engages in the activity; or

(B)to B engaging in the activity.

(5)For the purposes of subsection (1), when B engages in an activity, C 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 C 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 C was in Victoria at the time at which that conduct occurred.

(7)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.

49ICausing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity

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

(a)another person (B) engages in an activity; and

(b)the activity is sexual; and

(c)another person (C) is present when B engages in the activity; and

(d)A intentionally causes or allows C to be present when B engages in the activity; and

(e)C is—

(i)a child aged 16 or 17 years; and

(ii)under A's care, supervision or authority; and

(f)A's causing or allowing C to be present when B engages in the activity is contrary to community standards of acceptable conduct.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)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.

(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 B engaging in the activity or from the presence of C;

(b)the circumstances do not include—

(i)whether C consents—

(A)to being present when B engages in the activity; or

(B)to B engaging in the activity; or

(ii)whether A believes that C consents—

(A)to being present when B engages in the activity; or

(B)to B engaging in the activity.

(5)For the purposes of subsection (1), when B engages in an activity, C 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 C 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 C was in Victoria at the time at which that conduct occurred.

(7)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 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

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.

49JPersistent sexual abuse of a child under the age of 16

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

(a)A sexually abuses another person (B) on at least 3 occasions during a particular period; and

(b)B is a child under the age of 16 years during the whole of that period.

(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3)It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.

(4)It is not necessary to prove conduct constituting sexual abuse with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that conduct instead of an offence against subsection (1).

(5)For the purposes of subsection (1), A sexually abuses B if A engages in conduct that would involve the commission by A of any of the following—

(a)an offence against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences);

(b)an offence against section 49A(1) (sexual penetration of a child under the age of 12);

(c)an offence against section 49B(1) (sexual penetration of a child under the age of 16);

(d)an offence against section 49D(1) (sexual assault of a child under the age of 16);

(e)an offence against section 49F(1) (sexual activity in the presence of a child under the age of 16);

(f)an offence against section 49H(1) (causing a child under the age of 16 to be present during sexual activity);

(g)an offence against a provision of Subdivision (8C) (incest).

(6)Nothing in this section affects the operation of any exception or defence applicable or available to A in respect of the offence constituting the sexual abuse.

(7)If, on the trial of A for an offence against subsection (1), the jury is not satisfied that A is guilty of that offence but is satisfied that A engaged in conduct during the particular period that constitutes one or more instances of an offence against a provision referred to in subsection (5)—

(a)the jury—

(i)must find A not guilty of the offence against subsection (1); and

(ii)may find A guilty of the one or more instances of an offence against a provision referred to in subsection (5); and

(b)A is liable to the penalty for any offence of which, in accordance with this subsection, A is found guilty.

(8)Subsection (7) does not restrict the operation of section 239 of the Criminal Procedure Act 2009.

(9)A prosecution for an offence under subsection (1) must not be commenced without the consent of the Director of Public Prosecutions.

49KEncouraging a child under the age of 16 to engage in, or be involved in, sexual activity

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

(a)A is 18 years of age or more; and

(b)A encourages another person (B) to engage in, or be involved in, an activity; and

(c)the activity is sexual; and

(d)B is a child under the age of 16 years; and

(e)A seeks or gets sexual arousal or sexual gratification from—

(i)the encouragement; or

(ii)the sexual activity that is encouraged.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)For the purposes of subsection (1) encouraging may be done—

(a)in person; or

(b)by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000.

(4)It is not necessary to prove—

(a)that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b)that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c)if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5)Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

(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.

(8)In this section—

encourage includes suggest, request, urge and demand.

Notes

1     A defence applies to this offence—see section 49W.

2     A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 49ZC.

49LEncouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity

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

(a)A is 18 years of age or more; and

(b)A encourages another person (B) to engage in, or be involved in, an activity; and

(c)the activity is sexual; and

(d)B is—

(i)a child aged 16 or 17 years; and

(ii)under A's care, supervision or authority; and

(e)A seeks or gets sexual arousal or sexual gratification from—

(i)the encouragement; or

(ii)the sexual activity that is encouraged.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)For the purposes of subsection (1) encouraging may be done—

(a)in person; or

(b)by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000.

(4)It is not necessary to prove—

(a)that B in fact engaged in, or was involved in, the sexual activity that was encouraged; or

(b)that any sexual activity that B engaged in, or was involved in, was the same activity that was encouraged; or

(c)if B in fact engaged in, or was involved in, sexual activity (whether or not the same activity that was encouraged)—that A was present during that activity.

(5)Despite anything to the contrary in Division 12, it is not an offence for a person to attempt to commit an offence against subsection (1).

(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.

(8)In this section—

encourage includes suggest, request, urge and demand.

Notes

1     An exception applies to this offence—see section 49Y.

2     Defences apply to this offence—see sections 49X, 49Z and 49ZA.

3     A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence—see section 49ZC.

49MGrooming for sexual conduct with a child under the age of 16

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

(a)A is 18 years of age or more; and

(b)A communicates, by words or conduct (whether or not a response is made to the communication), with—

(i)another person (B) who is a child under the age of 16 years; or

(ii)another person (C) under whose care, supervision or authority B is; and

(c)A intends that the communication facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)A does not intend to facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more if, were the conduct constituting the sexual offence to occur, A or the other person would satisfy an exception, or have a defence, to that sexual offence.

(4)It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B or C was, or B and C were, in Victoria at the time at which that conduct occurred.

(5)It is immaterial that B or C was, or B and C were, 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 that conduct occurred.

(6)It is immaterial that A, B and C were all outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A intended that the sexual offence would occur in Victoria.

(7)In this section—

communication includes an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000;

sexual offence means—

(a)an offence against a provision of Subdivision (8A), this Subdivision (other than section 49K(1) or this section), (8C), (8D), (8E), (8F) or (8FA); or

(b)an attempt to commit an offence covered by paragraph (a); or

(c)an assault with intent to commit an offence referred to in paragraph (a).

49NLoitering near schools etc. by sexual offender

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

(a)A has been found guilty of a relevant offence; and

(b)A loiters at or near a place; and

(c)the place is—

(i)a school, a children's service centre or an education and care service premises; or

(ii)a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering; and

(d)A knows that the place is—

(i)a school, a children's service centre or an education and care service premises; or

(ii)a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)In this section—

children's services centre means a place at which a children's service within the meaning of the Children's Services Act 1996 operates;

education and care service premises means a place at which an education and care service (other than a family day care service) within the meaning of the Education and Care Services National Law (Victoria) educates or cares for children;

relevant offence means—

(a)a sexual offence; or

(b)murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or

(c)an offence against—

(i)section 5, 6, 7 or 11 of the Sex Work Act 1994; or

(ii)section 6, 7, 8 or 9 of the Prostitution Regulation Act 1986; or

(iii)section 59(1)(a) or (b) or 60 inserted in this Act on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991; or

(iv)section 19 of the Summary Offences Act 1966; or

(v)any of the following provisions as in force at any time before its repeal—

(A)section 60A of the Classification of Films and Publications Act 1990;

(B)section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995;

(C)section 168A, 168B or 168C of the Police Offences Act 1958; or

(vi)a provision referred to in paragraphs (dam), (dama) or (dan) of clause 1 of Schedule 1 to the Sentencing Act 1991 or of attempting to commit an offence against a provision referred to in paragraph (dama); or

(vii)section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) or of attempting to commit an offence against section 51C(1);

sexual offence means—

(a)an offence against section 38(1), 39(1), 40(1), 41(1), 47(1), 48(1), 49A(1), 49B(1), 49C(1), 49D(1), 49E(1), 49F(1), 49G(1), 49H(1), 49I(1), 49J(1), 49O(1), 50C(1), 50D(1) or 50F(1); or

(b)an offence against a provision referred to in clause 7A, 7B, 8, 9, 10, 11A 11B, 11D(b), 11D(c), 11D(d), 11D(g), 11D(h), 11E, 11F or 12 of Schedule 8; or

(c)an offence against section 44(1), (2) or (4) (incest) as inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016; or

(d)an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b) or (c).

(4)If A has at any time been found guilty of an offence against a law of another State or a Territory of the Commonwealth which creates an offence substantially similar to a sexual offence, that finding of guilt must be taken for the purposes of this section to be a finding of guilt of a sexual offence.

Note

An exception applies to this offence—see section 49ZB.

49OFailure by a person in authority to protect a child from a sexual offence

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

(a)A occupies a position within, or in relation to, a relevant organisation; and

(b)there is a substantial risk that a relevant child will become the victim of a sexual offence committed by another person who is—

(i)18 years of age or more; and

(ii)a person associated with the relevant organisation; and

(c)A knows that the risk exists; and

(d)A, by reason of A's position, has the power or responsibility to reduce or remove that risk; and

(e)A negligently fails to reduce or remove that risk.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)For the purposes of subsection (1), a person negligently fails to reduce or remove a risk if that failure involves a great falling short of the standard of care that a reasonable person would exercise in the circumstances.

(4)For the avoidance of doubt, in a prosecution for an offence against subsection (1), it is not necessary to prove that a sexual offence has been committed.

(5)It is immaterial that some or all of the circumstances constituting an offence against subsection (1) occurred outside Victoria, so long as the relevant child was in Victoria at any time while the substantial risk referred to in subsection (1)(b) existed.

(6)It is immaterial that both A and the relevant child were outside Victoria at the time at which some or all of the circumstances constituting an offence against subsection (1) occurred, so long as the sexual offence was at risk of occurring in Victoria.

(7)In this section—

person associated, in relation to a relevant organisation, includes but is not limited to a person who is an officer, employee, manager, owner, volunteer, contractor or agent of the organisation but does not include a person only because the person receives services from the organisation;

relevant child means a child (whether identifiable or not) under the age of 16 years who is, or may come, under the care, supervision or authority of a relevant organisation;

relevant organisation means—

(a)an organisation that exercises care, supervision or authority over children, whether as its primary function or otherwise, and includes but is not limited to—

(i)a church; and

(ii)a religious body; and

(iii)a school; and

(iv)an education and care service within the meaning of the Education and Care Services National Law (Victoria); and

(v)a children's service within the meaning of the Children's Services Act 1996; and

(vi)an out of home care service within the meaning of the Children, Youth and Families Act 2005; and

(vii)a hospital; and

(viii)a government department; and

(ix)a government agency; and

(x)a municipal council; and

(xi)a public sector body; and

(xii)a sporting group; and

(xiii)a youth organisation; and

(xiv)a charity or benevolent organisation; or

(b)an organisation that, in accordance with an agreement or arrangement with an organisation referred to in paragraph (a), is required or permitted to engage in activities associated with the care, supervision or authority over children exercised by the organisation referred to in paragraph (a);

sexual offence means—

(a)an offence against a provision of Subdivision (8A), this Subdivision (other than this section), (8C), (8D), (8E), (8F) or (8FA); or

(b)an attempt to commit an offence covered by paragraph (a) (other than section 49K); or

(c)an assault with intent to commit an offence covered by paragraph (a).

49PAbduction or detention of a child under the age of 16 for a sexual purpose

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

(a)A—

(i)takes away or detains another person (B); or

(ii)causes B to be taken away or detained by another person; and

(b)B is a child under the age of 16 years; and

(c)the person who has lawful charge of B (C) does not consent to B being taken away or detained; and

(d)A knows that—

(i)B is a child under the age of 16 years; or

(ii)B is probably a child under the age of 16 years; and

(e)A knows that—

(i)C does not consent to B being taken away or detained; or

(ii)C probably does not consent to B being taken away or detained; and

(f)A intends B will take part in a sexual act with A or another person or both; and

(g)B taking part in the sexual act would involve the commission by A, or the other person, or both, of an offence against section 38(1), 39(1), 40(1), 41(1) or a provision of this Subdivision (other than this section).

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

Note

See section 35C for the meaning of taking part in a sexual act.

49QCausing or allowing a sexual performance involving a child

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

(a)A intentionally causes or allows another person (B) to take part in a sexual performance; and

(b)the sexual performance occurs in circumstances that involve any person receiving payment, reward or other benefit (whether before or after the performance) in respect of the performance; and

(c)B is a child under the age of 18 years.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)In this section—

sexual performance means a live performance (whether in person or by an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000) that is, or could reasonably be considered to be, for the sexual arousal or sexual gratification of any person.

Notes

1     A defence applies to this offence—see section 49X.

2     A mistaken but honest and reasonable belief that the sexual performance did not occur in circumstances that involved payment, reward or other benefit to any person is not a defence to this offence—see section 49ZC.

49RInviting or offering a sexual performance involving a child

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

(a)A intentionally—

(i)invites another person (B) to take part in a sexual performance; or

(ii)offers to a third person that B will take part in a sexual performance; and

(b)the invitation or offer involves any person receiving payment, reward or other benefit (whether before or after the performance) in respect of the performance; and

(c)B is a child under the age of 18 years.

(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3)In this section—

sexual performance means a live performance (whether in person or by an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000) that is, or could reasonably be considered to be, for the sexual arousal or sexual gratification of any person.

Notes

1     A defence applies to this offence—see section 49X.

2     A mistaken but honest and reasonable belief that the invitation or offer did not involve payment, reward or other benefit to any person is not a defence to this offence—see section 49ZC.

49SFacilitating a sexual offence against a child

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

(a)A engages in conduct that aids, facilitates or contributes in any way to another person (B) engaging in sexual conduct (whether or not in Victoria) in relation to a child; and

(b)A engages in the conduct with the intention of obtaining a benefit for A or another person (C); and

(c)A—

(i)intends that the conduct will aid, facilitate or contribute in any way to B engaging in sexual conduct in relation to a child; or

(ii)knows that the conduct will, or probably will, aid, facilitate or contribute in any way to B engaging in sexual conduct in relation to a child; and

(d)B's engaging in sexual conduct in relation to a child—

(i)constitutes an offence against section 38(1), 39(1), 40(1), 41(1) or a provision of this Subdivision (other than this section); or

(ii)constitutes an offence against a provision of Division 272 of Chapter 8 of the Criminal Code of the Commonwealth; or

(iii)takes place outside Victoria but would, if the conduct occurred in Victoria, constitute an offence against a provision covered by subparagraph (i) whether or not it constitutes an offence in the place in which it takes place.

(2)A person who commits an offence against subsection (1) is liable to level 3 imprisonment (20 years maximum).

(3)For the purposes of subsection (1), conduct that aids, facilitates or contributes in any way to another person engaging in sexual conduct in relation to a child includes—

(a)making travel arrangements; and

(b)causing or allowing a child to enter or remain on premises which A owns, occupies, manages or assists in managing.

Note

A mistaken but honest and reasonable belief that B's engaging in sexual conduct in relation to a child did not constitute an offence or, if the conduct takes place outside Victoria, would not constitute an offence, is not a defence to this offence—see section 49ZC.

49TException to sexual penetration offences—medical or hygienic purposes

A does not commit an offence against section 49A(1), 49B(1) or 49C(1) if A's conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes.

Note

The reference to A in this section is a reference to the same A referred to in sections 49A, 49B and 49C.

49UExceptions to offences against children under 16—similarity in age

(1)A does not commit an offence against section 49D(1) or 49F(1) if, at the time at which the offence is alleged to have been committed—

(a)A is not more than 2 years older than B; and

(b)B is 12 years of age or more.

(2)A does not commit an offence against section 49H(1) if, at the time at which the offence is alleged to have been committed—

(a)A is not more than 2 years older than C; and

(b)C is 12 years of age or more.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49D, 49F and 49H.

49VDefence to offence against a child under 16—similarity in age

It is a defence to a charge for an offence against section 49B(1) if, at the time of the conduct constituting the offence—

(a)A was not more than 2 years older than B; and

(b)B was 12 years of age or more; and

(c)B consented to the sexual penetration.

Note

References to A and B in this section are references to the same A and B referred to in section 49B.

49WDefences to offences against children under 16—reasonable belief as to age

(1)It is a defence to a charge for an offence against section 49B(1), 49D(1) or 49F(1) if, at the time of the conduct constituting the offence—

(a)B was 12 years of age or more; and

(b)A reasonably believed that B was 16 years of age or more.

(2)It is a defence to a charge for an offence against section 49H(1) if, at the time of the conduct constituting the offence—

(a)C was 12 years of age or more; and

(b)A reasonably believed that C was 16 years of age or more.

(3)It is a defence to a charge for an offence against section 49K(1) if, at the time of the conduct constituting the offence, A reasonably believed that B was 16 years of age or more.

(4)A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(b), (2)(b) or (3).

Notes

1      References to A, B and C in this section are references to the same A, B and C referred to in sections 49B, 49D, 49F, 49H and 49K.

2     Whether or not A reasonably believed that B or C was 16 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out B or C's age.

3     An evidential burden applies to the matters referred to in subsections (1)(a) and (2)(a).

49XDefences to offences against children aged 16 or 17 or under 18—reasonable belief as to age

(1)It is a defence to a charge for an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time of the conduct constituting the offence, A reasonably believed that B was 18 years of age or more.

(2)It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence, A reasonably believed that C was 18 years of age or more.

(3)It is a defence to a charge for an offence against section 49Q(1) or 49R(1) if, at the time of the conduct constituting the offence—

(a)B was 12 years of age or more; and

(b)A reasonably believed that B was 18 years of age or more.

(4)A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1), (2) or (3)(b).

Notes

1     References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I, 49L, 49Q and 49R.

2     Whether or not A reasonably believed that B or C was 18 years of age or more depends on the circumstances. The circumstances include any steps that A took to find out B or C's age.

3     An evidential burden applies to the matter referred to in subsection (3)(a).

49YExceptions to offences against children aged 16 or 17—marriage or domestic partnership

(1)A does not commit an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time at which the offence is alleged to have been committed—

(a)A and B are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b)A—

(i)is not more than 5 years older than B; and

(ii)is B's domestic partner and the domestic partnership commenced before B came under A's care, supervision or authority.

(2)A does not commit an offence against section 49I(1) if, at the time at which the offence is alleged to have been committed—

(a)A and C are married to each other and the marriage is recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b)A—

(i)is not more than 5 years older than C; and

(ii)is C's domestic partner and the domestic partnership commenced before C came under A's care, supervision or authority.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

49ZDefences to offences against children aged 16 or 17—reasonable belief as to marriage or domestic partnership

(1)It is a defence to a charge for an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time of the conduct constituting the offence—

(a)A reasonably believed that A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b)A—

(i)was not more than 5 years older than B; and

(ii)reasonably believed that A was B's domestic partner and that the domestic partnership commenced before B came under A's care, supervision or authority.

(2)It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence—

(a)A reasonably believed that A and C were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth; or

(b)A—

(i)was not more than 5 years older than C; and

(ii)reasonably believed that A was C's domestic partner and that the domestic partnership commenced before C came under A's care, supervision or authority.

(3)A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(a) or (b)(ii) or (2)(a) or (b)(ii).

Notes

1     References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

2     An evidential burden applies to the matters referred to in subsections (1)(b)(i) and (2)(b)(i).

49ZADefences to offences against children aged 16 or 17—reasonable belief as to care, supervision or authority

(1)It is a defence to a charge for an offence against section 49C(1), 49E(1), 49G(1) or 49L(1) if, at the time of the conduct constituting the offence, A reasonably believed that B was not under A's care, supervision or authority.

(2)It is a defence to a charge for an offence against section 49I(1) if, at the time of the conduct constituting the offence, A reasonably believed that C was not under A's care, supervision or authority.

(3)A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1) or (2).

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49C, 49E, 49G, 49I and 49L.

49ZBException to loitering offence

A does not commit an offence against section 49N(1) if A has a reasonable excuse for loitering at or near a place referred to in section 49N(1)(c).

Note

The reference to A in this section is a reference to the same A referred to in section 49N.

49ZCNo defence of mistaken but honest and reasonable belief of certain matters

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that—

(a)for an offence against section 49A(1)—B was 12 years of age or more; or

(b)for an offence against section 49D(1) or 49E(1)—the touching was not—

(i)sexual; or

(ii)contrary to community standards of acceptable conduct; or

(c)for an offence against section 49F(1) or 49G(1)—

(i)the activity was not sexual; or

(ii)engaging in the activity in the presence of B was not contrary to community standards of acceptable conduct; or

(d)for an offence against section 49H(1) or 49I(1)—

(i)the activity was not sexual; or

(ii)A's causing or allowing C to be present when B engages in the activity was not contrary to community standards of acceptable conduct; or

(e)for an offence against section 49K(1) or 49L(1)—the activity was not sexual; or

(f)for an offence against section 49Q(1)—the sexual performance did not occur in circumstances that involved payment, reward or other benefit to any person in respect of the performance; or

(g)for an offence against section 49R(1)—the invitation or offer did not involve payment, reward or other benefit to any person in respect of the performance; or

(h)for an offence against section 49S(1)—B's engaging in sexual conduct in relation to a child did not constitute an offence or, if the conduct takes place outside Victoria, would not constitute an offence.

Note

References to A, B and C in this section are references to the same A, B and C referred to in sections 49A, 49D, 49E, 49F, 49G, 49H, 49I, 49K, 49L, 49Q, 49R and 49S.

(8C) Incest

50ADefinitions

In this Subdivision—

child, in relation to a person, means—

(a)the person's child by birth; or

(b)the person's genetic child; or

(c)the person's child by operation of the Adoption Act 1984; or

(d)the person's child by operation of the Status of Children Act 1974;

half-sibling, in relation to a person, means a person who shares a common parent with the person;

lineal ancestor, in relation to a person, means a lineal ancestor of the person's parent;

lineal descendant, in relation to a person, means a lineal descendant of the person's child;

parent, in relation to a person, means—

(a)the person's birth parent; or

(b)the person's genetic parent; or

(c)the person's parent by operation of the Adoption Act 1984; or

(d)the person's parent by operation of the Status of Children Act 1974;

sibling, in relation to a person, means a person who has the same parents as the person;

step-parent, in relation to a person, means the spouse or domestic partner of the person's parent, being a person who is not the person's parent.

50BRebuttable presumption as to family relationship

In a proceeding for an offence against a provision of this Subdivision, there is a rebuttable presumption that—

(a)A knows that A is related to B in the way alleged; and

(b)people who are reputed to be related to each other in a particular way are in fact related in that way.

50CSexual penetration of a child or lineal descendant

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

(a)A intentionally—

(i)sexually penetrates another person (B); or

(ii)causes or allows B to sexually penetrate A; and

(b)B is A's child or lineal descendant; and

(c)A knows that B is A's child or lineal descendant.

(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

Notes

1     An exception applies to this offence—see section 50G.

2     A defence applies to this offence—see section 50H.

3     B's consent is not a defence to this offence—see section 50K.

50DSexual penetration of a step-child

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

(a)A intentionally—

(i)sexually penetrates another person (B); or

(ii)causes or allows B to sexually penetrate A; and

(b)B is a child or lineal descendant of A's spouse or domestic partner; and

(c)A knows that B is a child or lineal descendant of A's spouse or domestic partner.

22AAn offence against section 53C(1) of the Crimes Act 1958 (causing another person to provide commercial sexual services in circumstances involving sexual servitude).

23An offence against section 53D(1) of the Crimes Act 1958 (conducting a business in circumstances involving sexual servitude).

23AAn offence against section 53E(1) of the Crimes Act 1958 (aggravated sexual servitude).

24An offence against section 53F(1) of the Crimes Act 1958 (deceptive recruiting for commercial sexual services).

25An offence against section 53G(1) of the Crimes Act 1958 (aggravated deceptive recruiting for commercial sexual services).

26An offence against section 54A(1) of the Crimes Act 1958 (bestiality).".

(3)In items 27 and 28 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009, for "(8EA)" substitute "(8FA)".

(4)For item 33 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 substitute—

"33AAn offence against section 60B(2) of the Crimes Act 1958 (loitering near schools etc.) inserted in the Crimes Act 1958 on 21 December 1993 by section 10 of the Crimes (Amendment) Act 1993 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.".

(5)After item 35 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009 insert—

"35AWithout limiting item 34 or 35, an offence referred to in paragraphs (dab) to (dar) of clause 1 of Schedule 1 to the Sentencing Act 1991 that involves sexual penetration.

35BWithout limiting item 34, 35 or 35A, an offence referred to in paragraph (a)(iv) to (xviii) of clause 1 of Schedule 1 to the Sentencing Act 1991 as in force immediately before their repeal.".

43Sex Offenders Registration Act 2004

(1)In section 34(1) of the Sex Offenders Registration Act 2004—

(a)in paragraph (b)(i), after "item 2" insert "or item 4";

(b)in paragraph (c)(ia), after "item 2" insert "or item 4".

(2)In section 70(2)(e) of the Sex Offenders Registration Act 2004 for "with a cognitive impairment within the meaning of Subdivision (8D)" substitute "with a cognitive impairment or mental illness within the meaning of Subdivision (8E)".

(3)For items 1 and 1A of Schedule 1 to the Sex Offenders Registration Act 2004 substitute—

"1An offence against a provision of Subdivisions (8A) to (8FA) of Division 1 of Part I of the Crimes Act 1958 that involves sexual penetration where the person against whom the offence is committed is a child.".

(4)For items 2 and 3 of Schedule 1 to the Sex Offenders Registration Act 2004 substitute—

"2An offence against section 49J(1) of the Crimes Act 1958 (persistent sexual abuse of a child under the age of 16).

3An offence against section 49S(1) of the Crimes Act 1958 (facilitating a sexual offence against a child).

4An offence against section 47A(1) of the Crimes Act 1958 (persistent sexual abuse of child under the age of 16) inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

5An offence against section 49A(1) of the Crimes Act 1958 (facilitating sexual offences against children) inserted in the Crimes Act 1958 on 13 June 1995 by section 93 of the Sex Work Act 1994 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.".

(5)In item 6 of Schedule 1 to the Sex Offenders Registration Act 2004, for "items 1 to 3" substitute "items 1 to 5".

(6)For item 6AA of Schedule 1 to the Sex Offenders Registration Act 2004 substitute—

"6AAAn offence against section 53E(1) of the Crimes Act 1958 (aggravated sexual servitude).

6ABAn offence against section 60AC(1) of the Crimes Act 1958 (aggravated sexual servitude) inserted in the Crimes Act 1958 on 19 May 2004 by section 3 of the Justice Legislation (Sexual Offences and Bail) Act 2004 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.".

(7)After item 6A(e) of Schedule 1 to the Sex Offenders Act 2004 insert—

"(ea)paragraph (dab) to (dar) (other than (dab)(iii), (dae) and (dalc)) that involves sexual penetration;".

(8)For items 3 to 18A of Schedule 2 to the Sex Offenders Registration Act 2004 substitute—

"3An offence against section 44(1) of the Crimes Act 1958 (procuring sexual act by threat) if the person against whom the offence is committed is a child.

3AAn offence against section 45(1) of the Crimes Act 1958 (procuring sexual act by fraud) if the person against whom the offence is committed is a child.

4An offence against section 46(1) of the Crimes Act 1958 (administration of an intoxicating substance for a sexual purpose) if the person against whom the offence is committed is a child.

4AAn offence against section 47(1) of the Crimes Act 1958 (abduction or detention for a sexual purpose) if the person against whom the offence is committed is a child.

5An offence against section 48(1) of the Crimes Act 1958 (sexual activity directed at another person) if the person against whom the sexual activity is directed is a child.

5AAn offence against section 49D(1) of the Crimes Act 1958 (sexual assault of a child under the age of 16).

6An offence against section 49E(1) of the Crimes Act 1958 (sexual assault of a child aged 16 or 17 under care, supervision or authority).

6AAn offence against section 49F(1) of the Crimes Act 1958 (sexual activity in the presence of a child under the age of 16).

7An offence against section 49G(1) of the Crimes Act 1958 (sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority).

7AAn offence against section 49H(1) of the Crimes Act 1958 (causing a child under the age of 16 to be present during sexual activity).

8An offence against section 49I(1) of the Crimes Act 1958 (causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity).

8AAn offence against section 49K(1) of the Crimes Act 1958 (encouraging a child under the age of 16 to engage in, or be involved in, sexual activity).

9An offence against section 49L(1) of the Crimes Act 1958 (encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity).

9AAn offence against section 49M(1) of the Crimes Act 1958 (grooming for sexual conduct with a child under the age of 16).

10An offence against section 49N(1) of the Crimes Act 1958 (loitering near schools etc. by sexual offender).

10AAn offence against section 49P(1) of the Crimes Act 1958 (abduction or detention of a child under the age of 16 for a sexual purpose).

11An offence against section 49Q(1) of the Crimes Act 1958 (causing or allowing a sexual performance involving a child).

11AAn offence against section 49R(1) of the Crimes Act 1958 (inviting or offering a sexual performance involving a child).

12An offence against section 51B(1) of the Crimes Act 1958 (involving a child in the production of child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

13An offence against section 51C(1) of the Crimes Act 1958 (producing child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

13AAn offence against section 51D(1) of the Crimes Act 1958 (distributing child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

14An offence against section 51E(1) of the Crimes Act 1958 (administering a website used to deal with child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

14AAn offence against section 51F(1) of the Crimes Act 1958 (encouraging use of a website to deal with child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

15An offence against section 51G(1) of the Crimes Act 1958 (possession of child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

15AAn offence against section 51H(1) of the Crimes Act 1958 (accessing child abuse material) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

16An offence against section 51I(1) of the Crimes Act 1958 (assisting a person to avoid apprehension) except if the offence only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A of the Crimes Act 1958, where the torture, cruelty or abuse is not sexual.

16AAn offence against section 52C(1) of the Crimes Act 1958 (sexual assault of a person with a cognitive impairment or mental illness).

17An offence against section 52D(1) of the Crimes Act 1958 (sexual activity in the presence of a person with a cognitive impairment or mental illness) if the person in the presence of whom the sexual activity is engaged in is a child.

17AAn offence against section 52E(1) of the Crimes Act 1958 (causing a person with a cognitive impairment or mental illness to be present during sexual activity) if the person in the presence of whom the sexual activity is engaged in is a child.

18An offence against section 53G(1) of the Crimes Act 1958 (aggravated deceptive recruiting for commercial sexual services).

18AAn offence against section 54A(1) of the Crimes Act 1958 (bestiality).".

(9)In items 19 and 20 of Schedule 2 to the Sex Offenders Registration Act 2004, for "(8EA)" substitute "(8FA)".

(10)Item 25 of Schedule 2 to the Sex Offenders Registration Act 2004 is repealed.

(11)In item 26A of Schedule 2 to the Sex Offenders Registration Act 2004—

(a)for "(ab), (ac), (b), (c), (d) or (e)" substitute "(ab) to (dar) (other than (dab)(iii), (dae) and (dalc)) or (e)";

(b)for "item 6A" substitute "item 4, 5, 6AB or 6A".

(12)For items 1 and 1A of Schedule 3 to the Sex Offenders Registration Act 2004 substitute—

"1An offence against a provision of Subdivisions (8A) to (8FA) of Division 1 of Part I of the Crimes Act 1958 that involves sexual penetration.".

(13)In item 2A of Schedule 3 to the Sex Offenders Registration Act 2004, after paragraph (c) insert—

"(ca)paragraphs (dab)(i), (ia) and (ib), (dag) and (dah);".

(14)For items 3 to 7B of Schedule 4 to the Sex Offenders Registration Act 2004 substitute—

"3An offence against section 44(1) of the Crimes Act 1958 (procuring sexual act by threat).

3AAn offence against section 45(1) of the Crimes Act 1958 (procuring sexual act by fraud).

4An offence against section 46(1) of the Crimes Act 1958 (administration of an intoxicating substance for a sexual purpose).

4AAn offence against section 47(1) of the Crimes Act 1958 (abduction or detention for a sexual purpose).

5An offence against section 52C(1) of the Crimes Act 1958 (sexual assault of a person with a cognitive impairment or mental illness).

5AAn offence against section 52D(1) of the Crimes Act 1958 (sexual activity in the presence of a person with a cognitive impairment or mental illness).

6An offence against section 52E(1) of the Crimes Act 1958 (causing a person with a cognitive impairment or mental illness to be present during sexual activity).

6AAn offence against section 53B(1) of the Crimes Act 1958 (using force, threat etc. to cause another person to provide commercial sexual services).

7An offence against section 53C(1) of the Crimes Act 1958 (causing another person to provide commercial sexual services in circumstances involving sexual servitude).

7AAn offence against section 53D(1) of the Crimes Act 1958 (conducting a business in circumstances involving sexual servitude).

7BAn offence against section 53F(1) of the Crimes Act 1958 (deceptive recruiting for commercial sexual services).".

(15)In items 8 and 9 of Schedule 4 to the Sex Offenders Registration Act 2004, for "(8EA)" substitute "(8FA)".

(16)In item 10A of Schedule 4 to the Sex Offenders Registration Act 2004—

(a)for "(ab), (ac), (b), (c), (d) or (e)" substitute "(ab) to (dar) or (e)";

(b)in paragraph (a), for "item 6A" substitute "item 4, 5, 6AB or 6A".

44Sex Work Act 1994

In section 3(1) of the Sex Work Act 1994, in the definition of sexual penetration, for "section 35" substitute "section 35A".

45Summary Offences Act 1966

(1)For note 1 at the foot of section 41D(2) of the Summary Offences Act 1966 substitute—

"1     Subdivision (8D) of Division 1 of Part I of the Crimes Act 1958 sets out offences in relation to child abuse material.".

(2)In section 41DA(3)(a) of the Summary Offences Act 1966, for "a minor" substitute "a person under the age of 18 years".

46Transport (Compliance and Miscellaneous) Act 1983

(1)In section 86(1) of the Transport (Compliance and Miscellaneous) Act 1983, in the definition of category 1 offence—

(a)in paragraph (a), omit "(within the meaning given by section 35(1) of the Crimes Act 1958)";

(b)in paragraph (e), for "child pornography" substitute "child abuse material".

(2)In section 130A(1) of the Transport (Compliance and Miscellaneous) Act 1983, in paragraph (d) of the definition of tier 1 offence, for "child pornography" substitute "child abuse material".

47Victims of Crime Assistance Act 1996

In section 3(1) of the Victims of Crime Assistance Act 1996, in paragraph (b) of the definition of relevant offence, for "(8D) or (8E)" substitute "(8E) or (8FA)".

48Victoria Police Act 2013

For item 2.2 of Schedule 4 to the Victoria Police Act 2013 substitute—

"2.2Sexual offences

An offence under section 39(1), 40(1), 41(1), 43(1), 44(1), 45(1), 46(1), 47(1), 49A(1), 49B(1), 49C(1), 49D(1), 49E(1), 49F(1), 49G(1), 49H(1), 49I(1), 49K(1), 49L(1), 49P(1), 50E(1), 50F(1), 51B(1), 51C(1), 51D(1), 51E(1), 51F(1), 51G(1), 51H(1), 51I(1), 52B(1), 52C(1), 52D(1), 52E(1) or 54A(1) of the Crimes Act 1958.

An offence under section 39(1) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 1 January 1992 by section 3 of the Crimes (Rape) Act 1991 and repealed by section 4 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

An offence under section 40(1) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 15 August 1993 by section 20 of the Sentencing (Amendment) Act 1993 and repealed by section 4 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

An offence against any of the following provisions of the Crimes Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016:

(a)section 44(3) or (4) (incest);

(b)section 47(1) (indecent act with child under the age of 16);

(c)section 48(1) (sexual penetration of 16 or 17 year old child);

(d)section 53(1) (administration of drugs etc.);

(e)section 54 (occupier etc. permitting unlawful sexual penetration);

(f)section 55 (abduction or detention);

(g)section 56(1) or (2) (abduction of child under the age of 16);

(h)section 57(1) or (2) (procuring sexual penetration by threats or fraud);

(i)section 59(1) (bestiality).

An offence against section 45(1) of the Crimes Act 1958 (sexual penetration of child under the age of 16) inserted in the Crimes Act 1958 on 22 November 2000 by section 5 of the Crimes (Amendment) Act 2000 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 49(1) of the Crimes Act 1958 (indecent act with 16

or 17 year old child) inserted in the Crimes Act 1958 on 1 December 2006 by section 13 of the Crimes (Sexual Offences) Act 2006 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 51(1) or (2) of the Crimes Act 1958 (sexual offences against persons with a cognitive impairment by providers of medical or therapeutic services) inserted in the Crimes Act 1958 on 1 December 2006 by section 16 of the Crimes (Sexual Offences) Act 2006 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 52(1) or (2) of the Crimes Act 1958 (sexual offences against persons with a cognitive impairment by workers) inserted in the Crimes Act 1958 on 1 December 2006 by section 17 of the Crimes (Sexual Offences) Act 2006 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 53(2) of the Crimes Act 1958 (administration of drugs etc.) inserted in the Crimes Act 1958 on 11 February 2009 by section 3 of the Crimes Legislation Amendment (Food and Drink Spiking) Act 2009 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 58(1), (2) or (3) of the Crimes Act 1958 (procuring sexual penetration of a child) inserted in the Crimes Act 1958 on 1 December 2006 by section 18 of the Crimes (Sexual Offences) Act 2006 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 60A(1) of the Crimes Act 1958 (sexual offence while armed with an offensive weapon) inserted in the Crimes Act 1958 on 15 August 1993 by section 21 of the Sentencing (Amendment) Act 1993 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 68(1) (production of child pornography) or section 69(1) (procurement etc. of minor for child pornography) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 1 January 1996 by section 88 of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 and repealed by section 18 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 70(1) of the Crimes Act 1958 (possession of child pornography) inserted in the Crimes Act 1958 on 22 November 2000 by section 6 of the Crimes (Amendment) Act 2000 and repealed by section 18 of the Crimes Amendment (Sexual Offences) Act 2016.

An offence against section 70AAAB(1) (administering a child pornography website), 70AAAC(1) (encouraging use of a website to deal with child pornography) or 70AAAD(1) (assisting a person to avoid apprehension) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 1 December 2015 by section 6 of the Crimes Amendment (Child Pornography and Other Matters) Act 2015 and repealed by section 18 of the Crimes Amendment (Sexual Offences) Act 2016.".

49Working with Children Act 2005

(1)In section 3(1) of the Working with Children Act 2005, for the definition of child pornography offence substitute—

"child abuse material offence means—

(a)an offence against any of the following provisions of the Crimes Act 1958—

(i)section 51B(1) (involving a child in the production of child abuse material);

(ii)section 51C(1) (producing child abuse material);

(iii)section 51D(1) (distributing child abuse material);

(iv)section 51E(1) (administering a website used to deal with child abuse material);

(v)section 51F(1) (encouraging use of a website to deal with child abuse material);

(vi)section 51G(1) (possession of child abuse material);

(vii)section 51H(1) (accessing child abuse material);

(viii)section 51I(1) (assisting a person to avoid apprehension); or

(b)an offence against section 233BAB(5) or 233BAB(6) of the Customs Act 1901 of the Commonwealth (special offence relating to tier 2 goods) where the goods are goods covered by section 233BAB(1)(h) of that Act; or

(c)an offence referred to in paragraphs (dam), (dama), (dan), (dao), (daoa), (daob), (daq) or (df)(ii), (iii), (iv), (v), (vi) or (vii), of clause 1 of Schedule 1 to the Sentencing Act 1991;".

(2)In sections 13(1)(a) and (b), 14(1)(b), 21AC(1)(a) and (b) and 21AD(1)(b) of the Working with Children Act 2005, for "9 or 14A" substitute "9, 14A or 17".

(3)In section 40(2)(b) of the Working with Children Act 2005, for "a person with impaired mental functioning within the meaning of Subdivision (8D)" substitute "a person with a cognitive impairment or mental illness within the meaning of Subdivision (8E)".

(4)In clauses 1 and 2 of Schedule 1 to the Working with Children Act 2005, for "child pornography" substitute "child abuse material".

(5)In clause 1 of Schedule 2 to the Working with Children Act 2005, for "child pornography" substitute "child abuse material".

(6)In clause 9 of Schedule 2 to the Working with Children Act 2005, for "60B" (where twice occurring) substitute "49N(1)".

(7)In clause 9A of Schedule 2 to the Working with Children Act 2005, for "49C" (where twice occurring) substitute "49O(1)".

(8)After clause 12(a) of Schedule 2 to the Working with Children Act 2005 insert—

"(ab)against section 19 of the Summary Offences Act 1966 if the offence was committed before the commencement of section 25 of the Crimes Amendment (Sexual Offences) Act 2016; or".

(9)After clause 16 of Schedule 2 to the Working with Children Act 2005 insert—

"17An offence against section 49C(2) of the Crimes Act 1958 (failure by person in authority to protect child from sexual offence) inserted in the Crimes Act 1958 on 1 July 2015 by section 3 of the Crimes Amendment (Protection of Children) Act 2014 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 49C(2) of the Crimes Act 1958.

18An offence against section 60B(2) of the Crimes Act 1958 (loitering near schools etc.) inserted in the Crimes Act 1958 on 21 December 1993 by section 10 of the Crimes (Amendment) Act 1993 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 60B(2) of the Crimes Act 1958.".

(10)In clause 2.8 of Schedule 3 to the Working with Children Act 2005, for "60B" (where twice occurring) substitute "49N(1)".

(11)After clause 2.8 of Schedule 3 to the Working with Children Act 2005 insert—

"2.9An offence against section 60B(2) of the Crimes Act 1958 (loitering near schools etc.) inserted in the Crimes Act 1958 on 21 December 1993 by section 10 of the Crimes (Amendment) Act 1993 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 60B(2), in circumstances where the person committing the offence is an adult.".

Part 6—Repeal of amending Act

50Repeal of amending Act

This Act is repealed on 1 July 2018.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 9 June 2016

Legislative Council: 23 June 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958 in relation to sexual offences and certain other offences, to amend the Summary Offences Act 1966 in relation to sexual exposure and indecent, offensive and insulting behaviour, to amend the Jury Directions Act 2015 in relation to directions on consent, and reasonable belief in consent, in sexual offence cases, to make minor amendments to certain Acts and for other purposes."