Victorian Current Acts

CRIMES ACT 1958 - SECT 49H

    (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).

S. 49H(2A) inserted by No. 34/2017 s. 31(1).

    (2A)     The standard sentence for an offence against subsection (1) is 4 years.

    (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.

Note 4 to s. 49H inserted by No. 34/2017 s. 31(2).

4     See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

S. 49I inserted by No. 47/2016 s. 16.