Legal Age of Consent in Australia
Criminal laws in Australia deals severely with offenders engaging in illegal sexual activities with a child or a young person under the legal age of consent determined by each State and Territory in Australia.
The Purpose of Age of Consent Laws in Australia
Consent can be defined as a person’s free and voluntary agreement to participate in an activity. Consent has to be without coercion, fear, or intimidation and it needs to be actively communicated. The law clearly states that a child or young person is unable to lawfully agree to sexual intercourse, sexual touching, or any sexual act before they reach a certain age.
These legal age-of-consent laws in Australia protect children and young people from abuse and sexual exploitation from older teenagers or adults. These laws determine the age when children or young people have the necessary maturity to engage in safe sexual activities.
There is a distinct difference between adult sexual assault and child sexual assault. When an adult is assaulted it happens without sexual consent. The child does not have the decision-making capacity or the necessary mental capacity to give consent to any sexual interactions.
This means any sexual interactions or relations between an adult and a person under the age of consent are considered, sexual abuse, abusive and illegal. A person who engages in sexual activity with a child under the age of consent can be found guilty of a sexual offence regardless of whether the child gave express or implied consent to the sexual conduct.
What is the Legal Age of Consent in Australia?
Consent is defined as a free and voluntary agreement to sexual activity at the time of the sexual activity. The age of consent refers to the age at which a child or young person is considered legally competent to agree to sexual activity with another person. A person under this age cannot consent to sexual activity.
The legal age of consent in Australia varies between 16 and 17 years across the Australian States and Territory jurisdictions. The legal age of consent laws in the different States and Territories in Australia are:
- New South Wales 16 years
- Victoria 16 years
- Queensland 16 years
- Western Australia 16 years
- South Australia 17 years
- Tasmania 17 years
- Northern Territory 16 years
- Australian Capital Territory 16 years
The legal age of consent in Australia aims to protect children and young people from sexual exploitation. It is illegal to engage in any sexual activity with a person under the legal age of consent, even if they might agree to the activity.
The penalties imposed for breaching the age of consent laws are severe across the States and Territories in Australia. The severity of the penalties for having sexual activity with children under the legal age of consent depends on the age of the child and the circumstances of the offence.
The Age of Consent in New South Wales
Under Section 66C of the Crimes Act 1900 (NSW) the legal age of consent in NSW is 16 years or above. A child or a younger person under 16 years of age cannot lawfully consent to sexual activity, including touching, kissing, or sexual intercourse. This means it is a crime punishable by imprisonment to have sex or engage in any sexual intercourse with a person aged less than 16 years even if the person consents to the sexual intercourse.
A person under the age of 16 might want to engage in sexual activity and may be considered a willing participant at the time. However, that does not mean the sexual activity is consensual by law. Sexual activity for a consenting person who is above the age of 16 is considered legal, except in relationships involving special care.
Sexual intercourse includes sexually penetrate to any extent of the genitalia or anus of any person or oral sex. The Act also outlines other offences with a child under the age of 16:
- Sexual touching
- Carrying out a sexual act
- Procuring or grooming children
- Persistent illegal sexual relationship with a child
The four sexual assault offences are:
- Sexual intercourse or act
- Sexual touching
- Sexual assault
- Aggravated sexual assault
Sexual assault is any unwanted sexual behaviour of a person or a group of people, against a child or young person or any other person without their consent. Consent must be given freely and voluntarily by a person who can give consent. By law, a child or young person under the age of 16 cannot give consent to sexual activities or cannot protect themselves from sexual assault.
Persons under Special Care
Although the age of consent is 16 years in NSW, there are exceptions. Section 73 and 73A of the Crimes Act 1900 contains these exceptions. It is an offence to engage in sexual intercourse with or sexually touch a person under the age of 18 years if they are under the person’s special care, that is, the person committing the offence is persons in a position of authority over the child. If a person has a special care relationship with a young person 16 -18 years of age, sexual activities as per subdivision 11 are considered illegal.
On 16 June 2020, the NSW Parliament passed the Crimes Amendment (Special Care Offences) Bill 2020 to toughen special care offences. The special care relationships are listed below.
Special Care relationships can include:
- A parent or grandparent
- A guardian or a person authorised to care for the young person
- A spouse or de facto partner of one of the parents, grandparents, guardian, or the person authorised to care for the young person
- A teacher or principal
- A religious figure
- A custodial officer of the institution where the person lives
- A healthcare professional
- Any person who care for the young person or work for an organisation providing refuse
The prosecution has to prove beyond a reasonable doubt that a person had sexual intercourse with a young person and they did so intentionally. The person knew the person under their special care was a young person and recklessly ignored the fact that the young person was in their special care. The young person is less than 18 years old but at least 16 years old. A person cannot be found guilty of an offence of sexual intercourse if they were married to the young person.
Penalties
The penalties for this offence depend on the age of the person and the penalties can range between 10 to 16 years in prison. A person who persistently abused a child sexually for some time will receive a maximum penalty of life imprisonment under Section 66 EA pf the Crimes Act 1900.
Sexually Assaulting a Child
As per Section 66 C of the Crimes Act 1900 (NSW), the penalties for sexual intercourse with a child between the ages of 10-14 years and 14 – 16 years are:
- 10 – 14 years Maximum penalty of 16 years imprisonment
- 14 – 16 years Maximum penalty of 10 years imprisonment
According to Section 66A of the Crimes Act 1900 (NSW), sexual intercourse with a child who is under the age of 10 years is punishable with a maximum penalty of life imprisonment. If a person attempts to have sexual intercourse with a child who is under the age of 10 years will face a maximum penalty of 25 years imprisonment.
Penalties in Circumstances of Sexual Assault and Aggravation
Circumstances of sexual assault and aggravation can include the following:
- The accused assaults the child
- Threatens to assault the child
- Threatens any other person who is present or nearby
- The accused is in company of another person or person’s
- Restrict the child’s movement before or after the assault
- The child has a serious disability or cognitive impairment
- Broke into a house or building to commit the offence
If a person assaults a child between the ages of 10 – 16 with the intent of having sexual intercourse they will likely have to face the punishment of committing the actual offence.
If sexual intercourse occurs in circumstances of aggravation the maximum penalties are:
- 10 – 14 years Maximum penalty of 20 years imprisonment
- 14 – 16 years Maximum penalty of 12 years imprisonment
Penalties for Sexually Touching a Child
It is an offence under Section 66DA and 66 DB of the Crimes Act 1900 (NSW) for a person to sexually touch a child under the age of 16 or incite a child to touch them or another person. A person cannot encourage another person to sexually touch a child below the age of 16 years. The maximum penalties for the anbove offences are:
- Children under 10 years Maximum penalty of 16 years imprisonment
- 10 – 16 years Maximum penalty of 10 years imprisonment
Penalties for a Sexual Act against a Child
Under Section 66DC of the Crimes Act 1900, it is a crime to perform a sexual act toward a child under the age of 16 or incite a child to perform a sexual act towards another person. It is also an offence to encourage another person to perform a sexual act toward a child. The maximum penalties for the above offences are:
- Children under 10 years Maximum penalty of 7 years imprisonment
- 10 – 16 years Maximum penalty of 2 years imprisonment
The penalty for an aggravated sexual act with bodily injury against a child whilst under the offender’s authority at the time of the crime is a maximum of 5 years imprisonment according to Section 66DE of the Crimes Act 1900.
Penalties – Person under Special Care
The maximum penalties for sexual activities with a young person under special care under Section 73 of the Crimes Act 1900 (NSW) are:
- 17 -18 years Maximum penalty of 4 years imprisonment
- 16 – 17 years Maximum penalty of 8 years imprisonment
Legal Defences
Section 80AG of the Crimes Act 1900 (NSW) outlines a specific statutory defence for the following charges:
- Under Section 66C of the Crimes Act – Sexual intercourse with a child aged 10 – 16 years
- Under Section 66DB of the Crimes Act – Sexual touching of a child aged 10 – 16 years
- Under Section 66DD of the Crimes Act – Sexual act with a child aged 10 – 16 years
- Under Section 73 of the Crimes Act – Sexual intercourse with a child under special care
- Under Section 73A of the Crimes Act – Sexual touching of a child under special care
A similar age defence may be applicable as outlined in Section 80G of the Crimes Act if the young person was 14 years or above and the age difference between the young person and the accused offender is no more than 3 years.
A similar age defence can be argued if for example:
- Two persons between the ages of 14 and 16 engage in sexual activity and they are both willing participants and both gave consent
- Two persons are willing participants in sexual activity, one person is older than 16 years and the other is younger – the age difference cannot be more than 2 years
The following general legal defences may be presented by the defence in certain circumstances:
- A person believed that the young person was of or above the age of 16 years and made an honest and reasonable mistake
- Duress
- Self-defence
- Necessity
The onus shifts to the prosecution to disprove the defence beyond a reasonable doubt if the defence were able to raise evidence of the statutory defence or a general legal defence. A person may be acquitted if the prosecution fails to disprove the defence.
The Penalties for Age of Consent in States and Territories of Australia
The maximum penalties for having sexual activity with a child under the age of legal consent vary between the different Australian State and Territory jurisdictions. The maximum penalties in all the States and Territories are severe with zero tolerance for sexual offences against children and young persons under the legal age of consent.
The maximum penalties of all the States and Territories vary, but sexual offences against children or younger people under the legal age of consent carry a prison sentence in all States and Territories in Australia, with a maximum penalty of life imprisonment in certain circumstances.
It is strongly recommended to obtain legal advice when faced with the severe penalties and serious nature of sexual assault charges against children and young people under the legal age of consent. Contact a sexual assault lawyer in Sydney immediately.
Lyons Law Group can provide expert advice regarding this legal matter.
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