Text as at 26 April 2026

This provision has not been checked by a human. The text below was read automatically from the official PDF and has not yet been verified against it, so it may differ from the provision as published — in its wording, its numbering, or where one provision ends and the next begins. For the authorised text, see legislation.vic.gov.au.

49H Causing a child under the age of 16 to be present during sexual activity

(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).

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

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

(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.

1An exception applies to this offence—see section 49U.

2A defence applies to this offence—see section 49W.

3A 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.

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