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It is an indictable offense in Victoria to have sexual penetration of a child who is under 16 years of age.

The penalties differ with the age of the victim. If the victim at the time of the commission of the offense was 12 years old or under the offender is liable for imprisonment of a maximum of 25 years.

If the child is between 12 and 16 years of age and is under the supervision, care or authority of the accused, the penalty is a maximum imprisonment of 15 years. If the child is between 12 and 16 years of age but is not under the supervision, care or authority of the accused, the penalty is imprisonment 10 years maximum.

The crime of sexual penetration of a child under age 16 is provided for under Section 45 of the Crimes Act 1958. From a reading of the provision it is immediately apparent that the lower the age of the victim the higher is the penalty and there is not even a qualification if the victim is below 12 years of age.

This is unlike the case if the child is between 12 and 16 years of age because there is a qualification whether the child is under the care, supervision or authority of the accused. The Crimes Act enumerates the persons considered to have the care, supervision or authority over a child below 16 years of age.

Section 35 of the Crimes Act provides the definition of sexual penetration which the prosecution must prove that the accused committed against the child victim. Whether the child has consented to the act or not is irrelevant for this offence. Hence, it is not an effective defence for the accused that the child has consented to the sexual penetration.

However, the defence of the accused might prosper if he can prove to the satisfaction of the Court that the child consented to the act and:

  • He had reasonable grounds to believe that the child was above 16 years old;
  • The accused was no more than two years older than the child; or
  • The accused believed that he was married to the child.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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