Sexual Act with a Child Under 10 Years of Age

Sexual Act With a Child Under 10 years of Age is an offence under section 66DC of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that you intentionally:

1. You carried out a sexual act with or towards a child under the age of 10 years, or
2. You carried out a sexual act in the presence of a child who is under the age of 10 and the presence of the child was a source of sexual arousal or gratification, or
3. You incited the child to carry out a sexual act with or towards you, or
4. You incited a third person to carry out a sexual act with or towards the child, or
5. You incited the child to carry out a sexual act with or towards a third person.

‘Sexual act’ is defined as any act, other than sexual touching, which is carried out in circumstances where a reasonable person would consider it sexual.

Matters considered when deciding whether an act is sexual include:

1. Whether the area of the body involved is the person’s genital area, anal area or, in the case of a female, or a transgender or intersex person identifying as female, the breasts, or
2. Whether the acts is for sexual arousal or sexual gratification, or
3. Whether any other aspect or circumstance makes it sexual.

Conduct which may amount to a sexual act includes:

1. Masturbating,
2. Inciting another to masturbate,
3. Carrying out a simulated sexual act, and
4. Inciting another to carry out a simulated sexual act.

An act is not sexual if it is carried out for a genuine medical or hygienic purpose.

Duress is a defence to the charge.