Did you know that it is a criminal offence to have consensual sex or any form of consensual sexual touching when one or both are under the age of 16 years?
- Example 1: the boy is 16 ½ and the girl is 15 ½ – it is a criminal offence
- Example 2: the girl is 16 ½ and the boy is 15 ½ – it is a criminal offence
- Example 3: one is an adult and the other is under 16 years – it is a criminal offence
- Example 4: both are under 16 years – it is a criminal offence
In this article I will deal with examples 1, 2 and 4 because they relate to ‘Young Persons’ in the Children’s Court, due to them being under 18 years of age.
In December 2018 a new law was introduced in NSW called ‘the similar age defence’. Essentially, provided the alleged ‘victim’ is at least 14 years old, if the ‘other’ teenager is within two years of the age of the victim that other teenager can rely on the ‘similar age defence’ and the prosecution would have to prove one of the following to convict that other:
- That the alleged victim was under 14 years of age; or
- That the age difference was more than two years.
Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as the “similar age” defence.
Prior to the introduction of that law, if both teenagers were under 16 years of age and engaged in consensual sex, it was likely that the boy would be charged with a criminal offence, even if the boy was younger than the girl. Fortunately, the new law has changed things in that regard.
However, every parent should be aware that where their teenager is say 16 ½ years old and he/she has ‘sex’ with another teenager who is say, 14 years old, then clearly, as the age difference is more than two years, the 16 ½ years old will have committed a criminal offence.
Should consensual sex between teenagers be a criminal offence?
Many would say consensual sex between young teenagers, who are more likely than not, exploring their sexuality, should never amount to a criminal offence. Who is to say that the two years age will prevent any unfairness? What if, for example, the boy is 16 ½ years old and the girl a touch under 14 ½ years old but there is evidence to establish the girl was more emotionally mature than the boy, whether due to a cognitive impairment of the boy or not?
Food for Thought
An authority on what is just and reasonable (in context) may be gleaned, from the South African case of Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development , where the Constitutional Court found that laws criminalising consensual sex between young people were unreasonable, and consequently, were unconstitutional; the Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child (under the South African Constitution any limitation on these must be reasonable).
What are the consequences?
As a parent, you should be aware that any conviction for such an offence could result in your daughter or son being required to be listed on the Child Protection Register for a period of about 7 years or so, which involves a lot of restrictions and creates many obligations. Not to mention the potential impact on employment in the event of a finding of guilt.
If you require legal advice or representation in any legal matter, contact the team at Conditsis lawyers. We offer a free first consultation to review your case.