The disappearance of Masterchef Back to Win series contestant, Ben Ungermann has been solved. Ben Ungermann disappeared from the show, initially stating it was due to personal reasons. This was revealed to be due to an incident which allegedly occurred while filming the series in Melbourne. The allegations were made back in February and sparked the interest of the Victorian sexual crime squad detectives who charged him with two counts of sexual assault. The alleged victim is understood to be 16 at the time.
He is due to face Melbourne’s Magistrates’ Court in 25 June 2020. He is currently living in Queensland and works at a café. This indicates he was granted bail but it is unknown whether he will travel to Melbourne for the court appearance or appear via audio visual link due to the Covid-19 pandemic.
IS SEX WITH A 16 YEAR OLD PERSON ILLEGAL IN NSW?
In New South Wales, the age of consent is 16 years old. This means it is legal for any persons 16 years old and over can have sex with anyone who is 16 or older including adults. While this is true generally, there are exceptions which relate to whether the 16 year old was considered to be under special care. Such exceptions include:
- The offender is the parent, grandparent, step-parent, guardian or authorised carer of the victim or the de facto partner of a parent, guardian or authorised carer of the victim;
- The offender is a member of the teaching staff of the school at which the victim is a student;
- 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;
- The offender is a custodial officer of an institution of which the victim is an inmate; or
- The offender is a health professional and the victim is a patient of the health professional.
In the above circumstances, the maximum penalty for the adult who has sex with a person between 16 and 17 years of age, is 8 years in prison. Where the young person is aged between 17 and 18, the penalty is 4 years in prison. The majority of sex offences therefore pertain to consent.
WHAT IS CONSENT?
Consent is defined as the following: A person “consents” to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
The Crimes Act 1900 (NSW) lists the specific moments when consent cannot be obtained. They include:
- If the person does not have the capacity to consent to the sexual activity, including because of age, cognitive incapacity, unconscious or asleep;
- If the person engage in sexual activity because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person); or
- If the person engages in sexual activity because the person is unlawfully detained.
Consent is also not given if there is:
- A mistaken belief as to the identity of the other person,
- A mistaken belief that the other person is married to the person;
- A mistaken belief that the sexual activity is for health or hygienic purposes; or
- Any other mistaken belief about the nature of the activity induced by fraudulent means.
Furthermore, it may be established that a person did not consent in the following scenarios:
- If the person engages in sexual activity while substantially intoxicated by alcohol or any drug;
- If the person engages in sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force; or
- If the person engages in sexual activity because of the abuse of a position of authority or trust.
It is unknown what the nature of the sexual allegations Ben has been charged with. We can deduce that age is not the basis of the charges as the alleged victim is 16 years old.
Interestingly, the age of consent to have sex is limited to actual physical contact. If a 16 year-old engages in a form of sexting where images and videos are shared involving the 16 year-old, then, the images and videos could be considered child abuse material under schedule 473.1 of the Criminal Code Act 1995 (Cth). Possession of child abuse material is an extremely serious offence which carries a maximum penalty of 15 years in prison under the Commonwealth legislation.