7.3.7 - Historical Sexual Offences1
7.3.7.3.1 - Bench Notes: Sexual Offences Against
Children (Pre 1/1/92)
Overview
1.
2.
3.
The scope of the various sexual offences against children under the
Crimes Act 1958 has changed over time. These can be divided into
four discrete periods:

Offences committed between 1 April 1959 and 28 February
1981;

Offences committed between 1 March 1981 and 4 August 1991;

Offences committed between 5 August 1991 and 31 December
1991; and

Offences committed on or after 1 January 1992.
These Bench Notes examine the directions a judge must give when:

A person is charged with a sexual offence against a child on or
after 1 January 2010; and

The offence is alleged to have been committed before 1 January
1992.
The Bench Notes are divided into three broad areas:

Sexual offences against a child under 10;

Sexual offences against a child aged between 10 and 16;

Sexual offences against a child aged between 16 and 18.
Sexual Offences Against a Child Under 10
Elements
4.
1
There are three elements to the statutory offences concerning
children under 10. The prosecution must prove that:
i)
The accused took part in an a proscribed sexual act with the
complainant;
ii)
The accused intended to take part in a proscribed sexual act;
This document was last updated on 19 March 2015.
1
and
iii)
5.
The complainant was under the age of 10 at the time the
proscribed sexual act took place (Crimes Act 1958 s46 (pre
1/3/1981), s47 (1/3/1981 – 4/8/1991), s45 (5/8/1991 –
31/12/1991)).
Consent has never been a defence to this offence (Crimes Act 1958
s49 (pre 1/3/1981), s47 (1/3/1981 - 4/8/1991), s45 (5/8/1991 –
31/12/1991)).
Taking Part in a Proscribed Act of Sexual Penetration
6.
Over time, the nature of the proscribed sexual act has changed:

Prior to 1 March 1981, the offence prohibited “unlawful carnal
knowledge and abuse” of girls (Crimes Act 1958 s46);

From 1 March 1981 to 4 August 1991, the offence prohibited
“taking part in an act of sexual penetration”, and that phrase
was defined by statute (the first statutory definition);

From 5 August 1991 to 31 December 1991, a new statutory
definition of “sexual penetration” applied to the offence (the
second statutory definition).
Unlawful Carnal Knowledge and Abuse
7.
At common law, carnal knowledge only consisted of penetration of a
vagina by a penis. Other forms of sexual penetration were dealt with
under the offence of indecent assault (see, on similar though not
identical legislation, R v McCormack [1969] 2 QB 442).
8.
This element was met when there was any penetration of the
complainant’s labia by the penis (R v Lines (1844) 1 Car & K 393;
Randall v R (1991) 53 A Crim R 380; R v DD (2007) 19 VR 143).
9.
From 5 August 1991, the Crimes Act 1958 defined vagina to include
a surgically constructed vagina. It is unclear whether the common
law recognised penetration of an artificially constructed sexual organ
as sexual penetration (see R v Cogley [1989] VR 799; R v Harris &
McGuiness (1988) 17 NSWLR 158).
10. This element was met by penetration “to any extent”. Consequently:

The penetration only needed to be slight or fleeing; and

It was not necessary for the prosecution to prove that semen
was emitted (see Randall v R (1991) 53 A Crim R 380;
Anderson v R [2010] VSCA 108; R v Pryor [2001] QCA 341).
11. The meaning of the terms “unlawful” and “abuse” in the phrase
“unlawful carnal knowledge and abuse” are not clear.
2
12. While the term “unlawful” may mean “outside the bounds of
marriage”, there is also authority indicating that the term is
surplusage (compare R v R [1992] 1 AC 599 and R v Champan
[1959] 1 QB 100, though neither case concerned the specific
Victorian provisions).
13. As a matter of prudence, the charge assumes that the prosecution
must prove that the accused and complainant were not married in
order to prove “unlawful carnal knowledge and abuse”.
14. It is not necessary to use the phrase “carnal knowledge” when
directing the jury about this element. The judge may instead use the
term “sexual penetration”, as long as he or she limits the meaning of
that phrase to its common law meaning (R v DD (2007) 19 VR 143).
“Sexual Penetration”: The First Definition (1/3/81- 4/8/91)
15. From 1 March 1981 to 4 August 1991, the Crimes Act stated that
“sexual penetration” was:

The introduction (to any extent) of a person’s penis into the
vagina, anus or mouth of another person of either sex; or

The introduction (to any extent) of an object that is not part of
the body, and which was manipulated by a person of either sex,
into the vagina or anus of another person of either sex, other
than as part of some generally accepted medical treatment
(Crimes Act 1958 s2A).
16. This definition removed the gendered nature of the offence, which
previously could only be committed by a male against a female.
Under this definition:

Both males and females can be the victim of the offence; and

Both males and females can commit the offence, by using an
object that is not part of the body.
17. It is unclear whether this definition uses the medical meaning of
“vagina” (being the membranous passage or channel leading from
the uterus to the vulva), or whether it should be interpreted in a
manner consistent with the common law understanding of “sexual
penetration” (which includes penetration of the external genitalia)
(compare R v Lines (1844) 1 Car & K 393 and Holland v R (1993)
117 ALR 193. See also Randall v R (1991) 53 A Crim R 380 and R v
AG (1997) 129 ACTR 1).2 In cases where this is relevant, judges will
need to engage in a process of statutory construction and will need
to consider principles concerning the interpretation of ambiguous
If the legislation uses the medical definition, cases in which only the external
genitalia have been penetrated will need to be charged as indecent assault
instead.
2
3
penal statutes and the interference with fundamental rights (see
Coco v R (1994) 179 CLR 427; Bropho v State of Western Australia
(1990) 171 CLR 1; Beckwith v R (1976) 135 CLR 569).
18. As was the case at common law, under this definition:

The penetration only needed to be slight or fleeting (penetration
“to any extent”) (Randall v R (1991) 53 A Crim R 380;
Anderson v R [2010] VSCA 108); and

The prosecution did not need to prove the emission of semen
(Crimes Act 1958 s2A).
19. It is not sufficient for the relevant body part to have simply been
touched. It must have been penetrated to some extent (Anderson v
R [2010] VSCA 108).
20. Subject to the statutory exception regarding penetration by an object
as part of accepted medical treatment, the purpose of the
penetration is irrelevant. It need not have been committed for the
purposes of sexual gratification (R v Dunn 15/4/1992 CA NSW).
“Sexual Penetration”: The Second Definition (5/8-31/12/91)
21. From 5 August 1991 to 31 December 1991, the Crimes Act stated
that “sexual penetration” was:

The introduction of a person’s penis into the vagina, anus or
mouth of another person, whether or not there was emission of
semen; or

The introduction of a part of a person’s body other than the
penis into the vagina or anus of another person, other than in
the course of an appropriate and generally accepted medical or
hygienic procedure; or

The introduction of an object into the vagina or anus of another
person, other than in the course of an appropriate and generally
accepted medical or hygienic procedure (Crimes Act 1958 s37).
“Taking Part” in an Act of Sexual Penetration
22. For offences committed from 1 March 1981 to 31 December 1991,
the prosecution must prove that the accused “took part” in an act of
sexual penetration (Crimes Act 1958 s47 (1/3/1981 – 4/8/1991),
s45 (5/8/1991 – 31/12/1991)).
23. Both parties to an act of sexual penetration are deemed to have
“taken part” in that act (Crimes Act 1958 s2A (1/3/1981 –
4/8/1991), s37 (5/8/1991 – 31/12/1991)).
24. This means that an accused may be found guilty of the offence
whether he or she was sexually penetrating the complainant or was
4
being sexually penetrated by the complainant (see R v JC [2000]
ACTSC 72 and Randall v R (1991) 53 A Crim R 380).
Directing the Jury About the Meaning of “Vagina”
25. The common law definition of vagina (and possibly the statutory
definitions: see above) includes “the external genitalia”. It has been
held that this phrase is not within ordinary usage and needs more
explanation (R v AJS (2005) 12 VR 563; Anderson v R [2010] VSCA
108; R v MG [2010] VSCA 97).
26. Consequently, where penetration is in issue, the judge should explain
to the jury in precise and simple terms, what would constitute
penetration of the vagina, and summarise the evidence that relates
to that issue (R v AJS (2005) 12 VR 563. See also Randall v R (1991)
53 A Crim R 380; Anderson v R [2010] VSCA 108; R v MG [2010]
VSCA 97).
Identifying the Penetrative Act
27. While in most cases the prosecution will be able to particularise the
method of penetration (e.g., the complainant was penetrated by a
penis), in some cases this will not be possible. In such cases, it will
be sufficient for the prosecution to particularise the method of
penetration by reference to the relevant possibilities (e.g., the
complainant was penetrated by a penis, a bodily part or some other
object) (R v Castles (Ruling No.1) [2007] VSC 561).
28. Where alternative possible methods of penetration are left to the
jury, they do not need to unanimously agree about which of those
methods was used. They only need to unanimously agree that
penetration took place (R v Castles (Ruling No.1) [2007] VSC 561).
Intention to Take Part in the Proscribed Sexual Act
29. The second element requires the accused to have intended to take
part in the proscribed sexual act (Crimes Act 1958 s45(1)).
30. The intention must have been to sexually penetrate or be
penetrated. An intent to commit an indecent assault is not sufficient
(Anderson v R [2010] VSCA 108).
31. There will often be no issue about whether the act was intentional.
For example, if there is evidence that the penetration took place over
an extended period of time, there will ordinarily be no doubt about
the accused’s mental state (Anderson v R [2010] VSCA 108).
32. However, in some cases intent will be in issue. Where this is so, it is
of paramount importance that the jury be directed about the
prosecution’s obligation to establish intent beyond reasonable doubt
(R v AJS (2005) 12 VR 563; MG v R [2010] VSCA 97; Anderson v R
[2010] VSCA 108).
5
33. For example, a clear direction about intention will be necessary
where it is possible that any penetration that occurred was
accidental. Such a possibility must be excluded for this element to be
proven (Anderson v R [2010] VSCA 108; R v AJS (2005) 12 VR 563).
Child Under 10
34. The third element requires the prosecution to prove that the
complainant was under the age of 10 at the time the relevant act
took place (Crimes Act 1958 s45(1)).
35. As this is an element of the offence, the jury must find the accused
not guilty if it cannot be satisfied beyond reasonable doubt that the
complainant was under 10 at the time of the offence (compare
Crimes Act 1958 s45 as amended by Crimes (Amendment) Act
2000).
Sexual Offences Against Children Aged 10 to 16
36. While the name of the offence for unlawful sexual acts with children
aged 10 to 16 has changed over time, the basic elements of the
offence have remained the same. The prosecution must prove that:
i)
The accused took part in a proscribed sexual act with the
complainant;
ii)
The accused intended to take part in that proscribed sexual act;
iii)
The complainant was under the age of 16 at the time the
proscribed sexual act took place; and
iv)
The accused was not married to the complainant.
Taking Part in a Proscribed Sexual Act
37. Over time, the nature of the proscribed sexual act has changed:

Prior to 1 March 1981, the offence prohibited “unlawful carnal
knowledge and abuse” of girls (Crimes Act 1958 s46);

From 1 March 1981 to 4 August 1991, the offence prohibited
“taking part in an act of sexual penetration”, and that phrase
was defined by statute (the first statutory definition);

From 5 August 1991 to 31 December 1991, a new statutory
definition of “sexual penetration” applied (the second statutory
definition).
38. These changes are described above in relation to the first element of
“Sexual Offences Against a Child Under 10”.
6
Intention to Take Part in the Proscribed Sexual Act
39. The second element requires the accused to have intended to take
part in the proscribed sexual act (Crimes Act 1958 s48(1)).
40. This is identical to the second element of sexual penetration of a
child aged under 10 (see above).
Child Aged between 10 and 16
41. The third element requires the prosecution to prove that the
complainant was between the age of 10 and 16 at the time the
proscribed sexual act took place (Crimes Act 1958 s48(1)).
42. As this is an element of the offence, the jury must find the accused
not guilty if it cannot be satisfied beyond reasonable doubt that the
complainant was aged between 10 and 16 at the time of the offence
(compare Crimes Act 1958 s45 as amended by Crimes (Amendment)
Act 2000).
Child and Accused Not Married
43. For offences committed between 1 March 1981 and 1 January 1992,
there is a fourth element. The prosecution must prove that the
accused and the complainant were not married to one another
(Crimes Act 1958 s48).
44. It is unclear whether this is also a requirement for offences
committed before 1 March 1981. This will depend on whether the
word “unlawful” in the phrase “unlawful carnal knowledge” means
“outside marriage”, or is mere surplusage (see “Unlawful Carnal
Knowledge and Abuse” above).
Date of Offence
45. Prior to 5 August 1991, a statutory limitation period of 12 months
applied to this offence if the complainant was aged 12 or above.
46. On 22 October 2014, section 74 of the Crimes Amendment (Sexual
Offences and Other Matters) Act 2014 commenced. This provision
introduced Criminal Procedure Act 2009 section 7A and abolished
“any immunity from prosecution arising because of the time limit”
which previously applied in relation to these offences. The result is
that for trials conducted after 22 October 2014, the prosecution does
not need to prove that the complainant was under the age of 12 at
the date of the offence. The prosecution will only need to prove that
the child was aged between 10 and 16 at the date of the offence.
Aggravating Circumstances
47. The Crimes Act 1958 has always included an aggravated form of the
offence of sexual penetration of a child aged 10 to 16, for cases in
which the accused was in a position of trust or authority over the
7
complainant.
48. The precise form of this aggravating circumstance has changed over
time:

Prior to 1 March 1981, the aggravating circumstance was that
the accused was a schoolmaster or teacher and the complainant
was his pupil;

From 1 March 1981 to 31 December 1991, the aggravating
circumstance was that the complainant was, either generally or
at the time of the offence, under the care, supervision or
authority of the accused.
49. In the absence of a clarifying statutory provision,3 it is likely that the
imposition of an increased maximum penalty for offences committed
in these circumstances means that the aggravated form of the
offence is a separate offence from the basic offence of sexual
penetration of a child aged between 10 and 16. If that is correct,
then the prosecution must specifically charge the aggravated offence
in the indictment, and the judge must direct the jury on the
aggravating circumstance as an element of that offence (see R v
Satalich (2001) 3 VR 231; R v Courtie [1984] AC 463; R v Hassett
(1994) 76 A Crim R 19).
Care, Supervision or Authority
50. The words “care, supervision or authority” are to be given their
ordinary grammatical meaning (R v Howes (2000) 2 VR 141). For
further information on this point, see Bench Notes: Sexual
Penetration of a Child Under 16.
Defences
51. The available statutory defences to the various sexual offences
against children aged between 10 and 16 have changed over time.
52. Many of these defences concern the existence of consent or the
accused’s belief in the complainant’s consent. Where consent is in
issue, the judge must direct the jury in accordance with the current
statutory provisions on consent. The transitional provisions on the
legislation that introduced changes to the law on consent state that
the legislative changes apply to all proceedings commenced after the
amending legislation, regardless of when the alleged offence was
committed (see Crimes (Rape) Act 1991 s9 and Crimes Act 1958
s609). For information on the current meaning of consent, see Bench
Notes: Consent and Awareness of Non-Consent.
3
Compare Crimes Act 1958 s45(5) in the current version of the Act.
8
Offences Committed Before 1 March 1981
53. Prior to 1 March 1981, consent was not a defence unless the girl was
older than or of the same age as the defendant (Crimes Act 1958
s49).
Offences Committed 1 March 1981 to 4 August 1991
54. From 1 March 1981 to 4 August 1991, consent was only a defence if:

The accused believed on reasonable grounds that the
complainant was of or above the age of 16 years; or

The accused was not more than 2 years older than the
complainant (Crimes Act 1958 s48(4)).
55. The accused also had a discrete defence if he or she believed, on
reasonable grounds, that he or she was married to the complainant
at the time of the alleged offence (Crimes Act 1958 s48(5)).
Offences Committed 5 August 1991 to 31 December 1991
56. From 5 August 1991 to 31 December 1991, consent was a defence
only if:

The accused believed on reasonable grounds that the
complainant was of or above the age of 16 years;

The accused was not more than 2 years older than the
complainant; or

The accused believed on reasonable grounds that he or she was
married to the child (Crimes Act 1958 s46(2)).
57. During this period, having a belief in marriage was no longer a
discrete defence. Instead, such a belief was merely a precondition for
the availability of a defence of consent.
Age Difference
58. For offences committed between 1 March 1981 and 31 December
1991, consent is available as a defence if the accused is not more
than two years older than the complainant.
59. This defence is not available where the accused’s actual age exceeds
the complainant’s by anything more than 24 months. The availability
of the defence is not determined by a measure limited to wholeyears (Stannard v DPP [2010] VSCA 165).
60. It is unclear whether a similar limitation applies to offences
committed before 1 March 1981, where the defence of consent was
available if the complainant was older than or the same age as the
accused. In particular, it is not clear whether “the same age” means
9
having the same date of birth, or includes the situation where the
accused and complainant are, at the time of the alleged offence, the
same age as measured in whole-years.
Reasonable Grounds
61. For there to be “reasonable grounds” for a state of mind (such as a
belief), there must exist facts which are sufficient to induce that
state of mind in a reasonable person (George v Rockett (1990) 170
CLR 104).
Burden of Proof
62. Where there is an evidentiary basis for the defence of consent, the
prosecution must disprove the existence of consent, or the grounds
for a consent defence being available, beyond reasonable doubt (R v
Mark & Elmazovski [2006] VSCA 251; R v Deblasis [2007] VSCA
297; R v Fagone [2008] VSCA 175. Cf R v Douglas [1985] VR 721).
63. Judges should carefully explain the burden of proof to the jury in a
way they can understand (R v Fagone [2008] VSCA 175).
Intoxication
64. The fact that the accused had used drugs or alcohol may be relevant
to his or her belief that the child was 16 or older (see, e.g., R v
Fagone [2008] VSCA 175).
65. However, this issue only needs to be addressed if there is a factual
foundation for finding that the accused’s drug or alcohol use affected
his or her belief that the child was 16 or older. The mere fact that he
or she had used drugs or alcohol at the relevant time is not sufficient
(R v Fagone [2008] VSCA 175).
66. For further information on the relevance of drug or alcohol use
generally, see Bench Notes: Intoxication.
Accused’s Awareness of the Absence of Consent
67. Unlike the common law offence of rape, it has not been
authoritatively determined whether, in circumstances where consent
is a defence under the Act, the prosecution must prove both that the
complainant was not consenting and that the accused was aware that
the complainant was not consenting.
68. However, despite the ambiguous drafting of the legislation, it is likely
that wherever consent is an issue, mens rea in respect of consent
will also be relevant. This would be consistent with the principles set
down in He Kaw Teh v R (1985) 157 CLR 523 and now applied in
relation to common assault by Parish v DPP [2007] VSC 494.
69. If a mens rea requirement in respect of consent is to be implied, it
will be necessary to determine the form of mens rea that will be
10
sufficient. For rape and indecent assault at common law, the mens
rea associated with consent is awareness that the complainant was
not or might not be consenting (R v Saragozza [1984] VR 187, DPP v
Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118). It has been
assumed that this form of mens rea attaches to the consent element
of all relevant sexual offences, and the charges for these offences
have been drafted accordingly.
70.
11