Laws on consensual teenage sex 'draconian' and need change: Judge Paul Muscat

Updated

A judge is urging the laws on underage sex be changed to ensure teenagers with consensual sexual relationships do not end up facing criminal charges.

Judge Paul Muscat has imposed a bond on a South Australian teenager, now 18, for having unlawful sexual intercourse with his 15-year-old girlfriend.

The SA Government says it is happy to discuss the legal issues with the judge but notes he has exercised the discretion allowed in determining sentence.

The Adelaide District Court heard the pair's relationship started when the boy was underage and the pair later broke up and the girl "cried her eyes out".

Her GP then reported the matter to police.

The court heard the girl had falsely told her mother the boy had forced her to have sex.

Judge Muscat says the boy was not a predator nor rapist and did not deserve to be punished in the way the law prescribed.

The teenager pleaded guilty to two counts of unlawful sexual intercourse.

Judge Muscat made his view of the law clear during sentencing.

"There needs to be a review of our current laws or at the very least education to explain to young people what is considered sexual activity that is unlawful," he said.

"Unlike when I was at school, most students now turn 18 years of age in year 12.

"It is conceivable, and dare I say not uncommon, that a year 12 student, be they a boy or a girl who has turned 18, may be involved in a boyfriend/girlfriend relationship with another younger student."

Current law obligates schools to act

The judge says the law obligates school authorities to act if they learn of underage sexual activity.

"If the school should discover that these students were engaging in sexual activity then the school is obliged to report that activity to the police," he said.

"The outcome for the year 12 student be they a boy or a girl, as I have observed, would be an appearance in this court charged with a sexual offence and facing a possible prison term of seven years. That is the reality of our present laws.

"Just imagine what that would do for that student's year 12 prospects and beyond."

These are very important sentencing considerations which are there to protect our children from sexual abuse at the hands of adults. This case is not the sort of case that justifies such a sanction. Judge Paul Muscat

The judge says the laws are outdated, and he previously noted it is usually males who end up before the courts rather than females who have underage sex.

He says young people should not have their life prospects damaged in many cases of consenting sex.

"In my view such an outcome would be draconian and out of touch with life in our modern day society and its ever-changing attitudes or sense of social norms," he said.

"I'm sure there will be much debate over this and any reform to our existing laws will obviously be a matter for our parliamentarians to consider."

Judge Muscat says the laws need to protect young people from predators and from older people who take advantage of the immaturity of others.

"These are very important sentencing considerations which are there to protect our children from sexual abuse at the hands of adults," he said.

"This case is not the sort of case that justifies such a sanction."

Judge Muscat has declined to record a conviction against the 18-year-old man, which would have meant putting the teenager on the sex offenders' register for life.

He says that would have been "disproportionate consequences".

The teenager left the courtroom on a good behaviour bond.

SA Attorney-General John Rau released a statement in response to the case.

"I am happy to have a discussion with Judge Muscat about the changes he thinks need to be made to the law, however judges do have the discretion to determine what penalties are imposed and I note he exercised discretion in this case. "This resulted in Judge Muscat discharging the 18-year-old without a conviction. "This is a challenging area of the law. I have already taken to the highest national level and we are investigating possible changes to the law to deal with the phenomenon of 'sexting' and similar offences."

Law Society president Morry Bailes says the laws already are complex.

"The laws in relation to underage sex are actually quite difficult to understand. They change from one Australian jurisdiction to the next which makes it even more complicated and quite often they're not talked about, so I'm not sure that adults and parents would necessarily have a complete understanding about these laws," he said.

"We've got to protect the most vulnerable people in our society but equally we've got to accept teenagers, particularly in their late teenage years, are probably going to have sexual encounters and to try to criminalise that type of conduct would seem in some instances to be silly."

Topics: courts-and-trials, sexual-offences, prisons-and-punishment, laws, crime, law-crime-and-justice, sexuality, youth, community-and-society, sa, adelaide-5000, australia

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