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Sydney Teacher Accused of Sexual Offences Against a Student

by Sonia Hickey & Ugur Nedim

A Sydney teacher will face Downing Centre Court next month over allegations of having sexual intercourse with a student.

The teacher is currently on conditional bail and has been stood down by his employer, Raddam House; an exclusive private school with campuses at Woollahra and Bondi in Sydney’s eastern suburbs.

34-year old senior biology teacher, Ben Fenner, was investigated by police after a complaint was made by a former student that the pair engaged in sexual intercourse while she was 17-years old and under his tutorship. He was then charged with 11 counts of having sexual intercourse with a person under ‘special care’.

The school has issued a statement saying that it regards the matter as extremely serious, that it will not tolerate any form of inappropriate or illegal conduct by its staff members, and is determined to support the former student.

In correspondence to parents, the school has advised that “pending resolution of due legal process, teacher Ben Fenner will not play any further role at the school”.

Offence of sexual intercourse with a person under care

The ‘age of consent’ in New South Wales is generally 16 years, but the law makes clear that persons above that age are unable to provide consent in certain situations despite being above that age.

One of those situations is where a person over the age of 16 but under 18 is under ‘special care’.

In that regard, section 73 of the Crimes Act 1900 (NSW) provides that:

(1) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 16 years and under the age of 17 years,

is liable to imprisonment for 8 years.

(2) Any person who has sexual intercourse with a young person who:

(a) is under his or her special care, and

(b) is of or above the age of 17 years and under the age of 18 years,

is liable to imprisonment for 4 years.

What is sexual intercourse?

Sexual intercourse is defined by section 61H of the Crimes Act as:

  • sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
  • any part of the body of another person, or
  • any object manipulated by another person, or
  • sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
  • cunnilingus, or
  • the continuation of any of the above conduct.

What is a relationship of ‘special care’?

The law states that relationship of special care exists where:

(a) the offender is the step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim, or

(b) the offender is a member of the teaching staff of the school at which the victim is a student, or

(c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or

(d) the offender is a custodial officer of an institution of which the victim is an inmate, or

(e) the offender is a health professional and the victim is a patient of the health professional.

A statutory defence to the charge is that the parties were married at the time.

Section 72B of the Crimes Act defines ‘member of the teaching staff’ as:

(a) a teacher at the school, or

(b) the principal or a deputy principal at the school, or

(c) any other person employed at the school who has students at the school under his or her care or authority.

Charged with a sexual offence?

If you have been accused of a sexual offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a conference with an experienced defence lawyer who will advise you about the law, your options and the best way forward.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist and Principal at Sydney Criminal Lawyers®, Australia's leading team of criminal and traffic defence lawyers.

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