Overview

This resource sheet is designed to inform practitioners and researchers about age of consent legislation in Australia.

If you are a young person seeking advice on sexual relations please refer to some of the following websites: LawStuff provides Australian state- and territory-specific legal information on a range of topics including sex, love and health.

provides Australian state- and territory-specific legal information on a range of topics including sex, love and health. ReachOut has information on sex and relationships for young people.

has information on sex and relationships for young people. Sex, Love and Other Stuff is an online booklet for young men, developed with the help of young men, which talks about sex, relationships, power and respect.

is an online booklet for young men, developed with the help of young men, which talks about sex, relationships, power and respect. What Do You Expect? is an online campaign against sexual violence that provides young people with practical information about consent, sexual negotiations, sexting and safety strategies.

Age of consent laws attempt to strike a balance between protecting children and young people from exploitation and other harms, and preserving their right to privacy and healthy sexual development. Young people at the age of consent are viewed by law to have general sexual competence to enforce personal boundaries and negotiate the risks involved in sexual activities. When an adult engages in sexual behaviour with someone below the age of consent, they are committing a criminal offence (child sexual abuse).

Age of consent laws cannot be considered in isolation to other legislation concerning issues such as sexual assault and child sexual abuse. For more information about the legislation concerning these issues, see the Brief Review of Contemporary Sexual Offence and Child Sexual Abuse Legislation in Australia (Boxall, 2014). For more information about preventing child sexual abuse, see Conceptualising the Prevention of Child Sexual Abuse report (Quadara, Nagy, Higgins, & Siegel, 2015).

Why are there age of consent laws?

Age of consent laws are designed to protect children and young people from sexual exploitation and abuse. Such laws effectively determine that children and young people below the age of consent are yet to reach a level of general maturity enabling their safe participation in sexual activities. In relation to sexual abuse charges in each state and territory, the key difference between child sexual assault and adult sexual assault is that adult sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws (Eade, 2003). An important distinction should be made between "willingness" and "consent". A child may be willing to engage in sexual behaviour; however, as they do not have the decision-making capacity to give consent according to law, all sexual interactions between an adult and a person under the age of consent are considered abusive (Barbaree & Marshall, 2006).

What is the legal age of consent in Australian state and territory jurisdictions?

The legal age for consensual sex varies across Australian state and territory jurisdictions (see Table 1). The age of consent is 16 years of age in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. In Tasmania and South Australia the age of consent is 17 years of age.

Sexual interactions with 16 and 17 year olds under special care

Although the legal age of consent throughout Australia is either 16 or 17 years of age, legislation in New South Wales, Victoria, Western Australia, South Australia and the Northern Territory makes it an offence for a person in a supervisory role to sexually engage with a person under their special care who is aged 16 or 17 years. A person in a supervisory role providing "special care" may include: a teacher, foster parent, religious official or spiritual leader, a medical practitioner, an employer of the child or a custodial official. For further information regarding sexual interaction with 16 and 17 years old under special care please see the relevant state or territory legislation.

What if both parties are under the age of consent?

Developmentally appropriate sexual exploration

It is a common and normal part of sexual development for young people to explore and experiment in sexual interactions with their peers (Araji, 2004; Barbaree & Marshall, 2006; Eade, 2003). Developmentally appropriate sexual exploration is when there is mutual agreement between same- or similar-aged peers, it is non-coercive and all participants have the control to participate, continue or stop the behaviour (Barbaree & Marshall, 2006). The state jurisdictions that provide a legal defence when the sexual interaction is between two young people close in age (Western Australia, Tasmania, Victoria and the Australian Capital Territory) are attempting to find a balance that protects children and young people from adult sexual exploitation in a way that does not criminalise them for having sexual relationships with their peers.

Problem or harmful sexual behaviour

Sexual interaction that is harmful and abusive between two young people under the legal age can be difficult to identify and determine. In situations where there is a clear age difference - for example a teenager and a young child - any sexual interaction is sexual abuse, as there is a definite power imbalance. However, when both parties are close in age, identifying whether the sexual activity is abusive is more complex. Ryan (1997) proposed three factors that must be considered in order to evaluate sexual interactions between two or more children: consent, equality and coercion. Reflecting on these three factors can help to clarify when behaviour is abusive.

Consent

Four areas of knowledge are required in order to give consent: understanding of what the physical act(s) involve, their meaning, society's laws and cultural norms, and possible consequences (McCarthy & Thompson, 2004). According to theoretical and practical understandings of consent, those key elements include:

transparency about what is being proposed (not being tricked or fooled);

that all parties possess similar cultural knowledge about standards of behaviour;

that all parties are similarly aware of possible consequences, such as pregnancy or disease;

having respect for agreement or disagreement without repercussion; and

that consent is freely given, and that all parties have the legal competence to freely give consent (being in possession of decision-making capacity and unaffected by intoxication)

Equality and coercion

Equality relates to the balance of power and control between those involved in sexual activities. A reasonable degree of equality needs to exist between the parties engaged in sexual activities, whether that pertains to relationships (authority and dependency), physical and/or intellectual capacity, or age (Conroy, Krishnakumar, & Leone, 2015; Craig, 2014; McCarthy & Thompson, 2004; Ryan, 1997). Gender and gender inequality also play a role in sexual consent. Templeton, Lohan, Kelly, & Lundy (2017, p. 1294) find that "adolescent sexual values, personal beliefs and expectations about sex are deeply shaped by gendered behaviours regulated by their peer and social environments."

Coercion can be described as the peer pressure put on one child by another to achieve compliance (Ryan, 1997). Such pressure can be placed on a continuum. The lower end may include implied authority, manipulation, trickery or bribery. The top end of the continuum may include physical force, threats of harm and overt violence.

If the relationship between two children or young people under the legal age of consent is unequal, non-consensual or coercive, it is abusive and may require a child protection or judicial response.

Age of consent and digital technologies

Recent sex education programs for children and young people aged below or at the age of consent have shifted from a dominantly risk-based paradigm to building knowledge and resilience, particularly with regard to contemporary matters such as digital technologies. Public concern about young people's healthy sexual development now includes debates regarding their use of information and communication technologies, the majority of which are internet-enabled.

The widespread use of mobile phones has led to a number of legal interventions that attempt to protect children from sexual exploitation in online environments. Sexting laws provide a good example of how digital sexual activity does not necessarily align with broader age of consent laws in Australia. McLelland (2016, p.4) points out that, "in many jurisdictions provisions aimed at protecting young people from sexual predation and exploitation can also be used to criminalise and prosecute the sexual self-expression of those under the age of 18" - even when the young person is at the age of consent. A survey of Australian teens and their sexting behaviours finds that, "16-17 year olds must navigate sexual practices that can be both consensual and legal, but illegal to visually record" (Albury, Crawford, & Byron, 2013, p. 4). This can present challenges to young people and those who work with them.

For more information about young people and sexting, see Lawstuff and the Office of the Children's eSafety Commissioner.

Provisions for legal defences in cases involving sexual activities with a person under the legal age

If a person is accused of engaging in sexual behaviour with someone under the legal age, there are various statutory defences available, which are outlined in legislation. While legislation varies in each state and territory, in general two types of defences are available (Cameron, 2007). The first type relates to whether the accused believed on reasonable grounds that the person with whom they engaged in sexual behaviour was above the legal age of consent. All jurisdictions (except New South Wales) have provisions for this defence in legislation; however, several variations exist regarding restrictions on the use of the defence according to the age of the alleged victim. The defence cannot be used if the victim's age at the time of the alleged offence was:

10 years or younger in the Australian Capital Territory;

12 years or younger in Queensland, Tasmania and Victoria;

13 years or younger in Western Australia;

14 years or younger in the Northern Territory;

16 years or younger in South Australia.

The second statutory defence relates to situations in which the two people are close in age. For example, in Tasmania it is a defence if the child is 15 years of age and the accused person was not more than 5 years older than the child, or if the child was above 12 years of age and the accused person was not more than three years older than the child. In Victoria and the Australian Capital Territory, engaging in sexual behaviour under the legal age can be defended if the defendant was not more than two years older, and in Western Australia not more than three years older, than the person against whom the offence is alleged to have been committed. In Victoria and Western Australia there is also a legal provision for defence if the accused can demonstrate they are lawfully married to the child. Details for other states can be found in Table 2.

Table 2: Legal defences of age of consent laws State Legislation Legal defences ACT Crimes Act 1900 (Section 55) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 55(3). It states that: It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes that -

(a) he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years; or



(b) at the time of the alleged offence -

(i) the person on whom the offence is alleged to have been committed was of or above the age of 10 years; and (ii) the defendant was not more than 2 years older; and that that person consented to the sexual intercourse.

NSW Crimes Act 1900 (Section 66C) There is no legal defence in legislation when charges are made to a person charged with engaging in sexual activities with a person under the legal age. NT Criminal Code Act 1983 (Section 127) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 127(4). It states that: It is a defence to a charge of a crime defined by this section to prove:

(a) the child was of or above the age of 14 years; AND



(b) the accused person believed on reasonable grounds that the child was of or above the age of 16 years. QLD Criminal Code Act 1899 (Section 215)

Health and Other Legislation Amendment Bill 2016 If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 215(5). It states that: If the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years. SA Criminal Law Consolidation Act 1935 (Section 49) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 49(4). It states that: It shall be a defence to a charge under subsection (3) to prove that -

(a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and



(b) the accused -

(i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or (ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.

TAS Criminal Code Act 1924 (Section 124) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 124(3). It states: It is a defence to a charge under this section to prove that the accused person believed on reasonable grounds that the other person was of or above the age of 17 years. Subsection (3) describes the defence against this charge: The consent of a person against whom a crime is alleged to have been committed under this section is a defence to such a charge only where, at the time the crime was alleged to have been committed

(a) that person was of or above the age of 15 years and the accused person was not more than 5 years older than that person; or



(b) that person was of or above the age of 12 years and the accused person was not more than 3 years older than that person. VIC Crimes Act 1958 (Section 45) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 45(4). It states that: Consent is not a defence to a charge unless at the time of the alleged offence the child was aged 12 or older and -

(a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or



(b) the accused was not more than 2 years older than the child; or



(c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child. WA Criminal Code Act Compilation Act 1913 (Section 321) If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 321(9-10). It states that: It is a defence to a charge under this section to prove the accused person -

(a) believed on reasonable grounds that the child was of or over the age of 16 years; and (b) was not more than 3 years older than the child.

Note: Under subsection 9(a) it is no defence if the child was under the care or supervision of the accused person. Under subsection 10, it is a defence to a charge to move that the accused was lawfully married to the child.

The National Framework for Protecting Australia’s Children 2009-2020

One of the key supporting outcomes for the National Framework for Protecting Australia’s Children 2009-20201 is: "child sexual abuse and exploitation is prevented and survivors receive adequate support" (Department of Social Services, 2013, para. 6). The framework discusses the importance of raising awareness and broader knowledge in the community about the importance of healthy relationships.

Conclusion

Age of consent laws are important measures for protecting children and young people from sexual predation and exploitation. Whether the sexual interaction between an adult and a person under the age of consent appeared consensual is irrelevant, as children and young people are determined in law to lack the decision-making capacity to consent to sexual activity with an adult. Adolescence is an important stage of growth, in which young people are developing autonomy, learning to form intimate relationships outside of the family, and negotiating desire. The challenge for legislation is to find the balance that ensures age of consent laws protect young people from adult sexual exploitation in a manner that does not disempower them or criminalise the sexual exploration with peers that is normal for their age and stage in life.

For more information about differentiating peer sexual assault from developmentally appropriate sexual exploration, see papers on Peer Sexual Assault and The prevalence and management of problem or harmful sexual behaviour in Australian children and young people: A review of available literature (upcoming AIFS publication).

References

Araji, S. (2004). Preadolescents and adolescents: Evaluating normative and non-normative sexual behaviours and development. In G. O'Reilly, W. Marshall, A. Carr, & R. Beckett (Eds.), The handbook of clincal intervention with young people who sexually abuse (pp. 3-35). Hove: Brunner-Routledge.

Albury, K., Crawford, K., & Byron, P. (2013). Young people and sexting in Australia: Ethics, representation and the law. Kensington: University of New South Wales.

Barbaree, H. E., & Marshall, W. L. (2006). An introduction to the juvenile sex offender. In H. E. Barbaree & W. L. Marshall (Eds.), The juvenile sex offender. New York: The Guild Press.

Boxall, H. (2014). Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: Special report. Canberra: Australian Institute of Criminology. Retrieved from <www.childabuseroyalcommission.gov.au/policy-and-research/published-research/contemporary-sexual-offence-and-abuse-legislation>.

Cameron, S. (2007). Age of consent. HIV Australia, 5(3), 1-7.

Conroy, N. E., Krishnakumar, A., & Leone, J. M. (2015). Reexamining issues of conceptualization and willing consent: The hidden role of coercion in experiences of sexual acquiescence. Journal of Interpersonal Violence, 30(1), 1828-1846.

Craig, E. (2014). Capacity to consent to sexual risk. New Criminal Law Review, 17(1), 103-134.

Department of Social Services. (2013). National Framework for Protecting Australia's Children 2009-2020. Canberra: Department of Social Services. Retrieved from <www.dss.gov.au/our-responsibilities/families-and-children/publications-articles/protecting-children-is-everyones-business>.

Eade, L. (2003). Legal incapacity, autonomy, and children's rights. Newcastle Law Review, 5(2), 157-168.

McCarthy, M., & Thompson, D. (2004). People with learning disabilities: Sex, the law and consent. In M. Cowling. & P. Reynolds (Eds.), Making sense of sexual consent (pp. 227-242). Burlington: Ashgate.

McLelland, M. (2016). "Not in front of the parents!": Young people, sexual literacies and intimate citizenship in the internet age. Sexualities, 20(1-2), 234-254.

Quadara, A., Nagy, V., Higgins, D., & Siegel, N. (2015). Conceptualising the prevention of child sexual abuse: Final report (Research Report No. 33). Melbourne: Australian Institute of Family Studies. Retrieved from <aifs.gov.au/publications/conceptualising-prevention-child-sexual-abuse?no_cache=1456287381>

Ryan, G. (1997). Perpetration prevention. In G. Ryan & S. Lane (Eds.), Juvenile sexual offending: Causes, consequences, and correction (pp. 433-454). San Fransisco: Jossey-Bass.

Templeton, M., Lohan, M., Kelly, C., & Lundy, L. (2017). A systemic review and qualitative synthesis of adolescents' views of sexual readiness. Journal of Advanced Nursing, 73(6), 1288-1301.