Under Age Consensual Sex – Should Either Party Be Charged?

 Background – Case Study – Client John

Note: Psyuedonyms for all names


  1. Initially, John was charged in relation to two complainants – Mary and Jane.
  2. At the time of the alleged offences, Mary was about 16 years and some months and Jane about 15 years and 9 months; and John was about 6 months younger than Mary and 9 months younger than Jane.
  3. John, Mary and Jane all attended the same high school and were in the same year/grade.
  4. Initially, John was charged as follows:


2 counts of sexual assault under s61I Crimes Act (without consent) – maximum period of imprisonment – 14 years on indictment;


2 counts of aggravated sexual assault under s.61J Crimes Act (without consent and complainant under 16) – maximum period of imprisonment – 20 years on indictment;

In the alternative to the above, 2 counts of sexual intercourse with Jane who was under 16years under ss.66C(3) Crimes Act – maximum period of imprisonment – 10 years on indictment; and

4 counts of aggravated (because complainant under 16) indecent assault with Jane who was under 16 years under s.61M(2) Crimes Act – maximum period of imprisonment – 10 years on indictment.


  1. Upon conviction for ANY of these offences, John would be required to be listed on the Child Protection Register.
  2. The police Facts in relation to Jane alleged that she had a learning disability (cognitive impairment) and sought to infer, without directly saying it, that John took advantage of that impairment to have “sex” with Jane.
  3. John believed that Jane was “slow” in some subjects but was not aware that she had any learning disability and socially, John believed that Jane was “on par” with other students; and there was no evidence to contradict John.
  4. It is important to note there are other provisions in the Crimes Act (for example – s.66F) under which John could have been charged if the Crown alleged that he took advantage of her disability BUT that direct allegation was not made.
  5. The ODPP sought a joint hearing with both complainants and sought to rely on “tendency evidence”.
  6. Detailed submissions were made on behalf of John (“YP” – Young Person) in the Children’s Court opposing the tendency application and the joint hearing and the defence succeeded in relation to both.
  7. Following Representations to the ODPP – outlining many encounters of consensual sex between Mary and John, including when Mary was under 16 years of age, the ODPP withdrew all charges in relation to Mary.
  8. Notwithstanding detailed Representations to the ODPP in relation to Jane, again outlining many consensual encounters with Jane and that the Facts did not disclose any sexual assault; and the submitted, perverse result, in the event that the “under age” charges proceeded, the ODPP refused to withdraw any of the counts.
  9. The defence gave serious consideration to filing a Motion for a permanent stay of proceedings, potentially arguing that for the charges to proceed was perverse, however, concluded that the Motion would fail because as a matter of law, perverse or not, the offences relating to “under age sex” was committed.
  10. The charges concerning Jane were given a hearing date and the working day before, the ODPP put a proposal – offering to withdraw the sexual assault counts on the basis that the YP pleaded guilty to some of the “under age sex” counts, which proposal, begrudgingly, the YP accepted – because the fact of the matter was that, according to law, BOTH the YP and Jane committed the same offence(s), namely, engaging in “sex” with one another, when the other was under 16 years of age; that the ODPP sought only to prosecute the YP was [incredibly, in the circumstances] within prosecutorial discretion. It should be further noted that in relation to at least one of the counts, the YP was 14 years of age!


A Perverse Result?

  1. In my view, in a word – yes!
  2. There was a lengthy sentence hearing and various witnesses including a school teacher were called to give evidence, and contrary to earlier comments of the magistrate, and notwithstanding the ODPP lawyer pressed for a conviction; fortunately, the YP avoided a conviction and the matter was finalised so that the YP was not required to be placed on the Child Protection Register (S. s33 (1) (a) Children (Criminal Proceedings) Act 1987). The magistrate referred to the YP’s case on sentence, as “overwhelming”.
  3. Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as “similar age” defence which allows consent to be used as a defence when the victim and the accused are certain ages: see s45 of the Crimes Act 1958 (Vic); s124 of the Criminal Code Act 1924 (Tas); s55 of the Crimes Act 1900 (ACT); s321 of the Criminal Code Compilation Act 1913 (WA).
  4. 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 [2013] ZACC 35 (3 October 2013), 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).


NSW Bureau of Crime Statistics – 2010 – 2015

  1. The NSW Bureau of Crime Statistics and Research (“BOCSAR”: Reference: sr15-13587) records between July 2010 and June 2015, that of 707 s66C(3) charges (not 707 offenders) only two charges related to an accused person who was under 16 years of age, namely 0.28%. The BOCSAR also reveals that, of 163 offenders (in respect of s66C(3)), only 1 offender (0.61%) was under 16 years of age.
  1. The cumulative effect of these statistics strongly evidence that the ODPP decision to proceed to prosecute the YP in respect of the s66C(3) and 61M(2) charges is a rarity, and in my view, truly regrettable.
  1. It is particularly instructive to consider the second reading speeches in parliament when s.66C was enacted. The second reading speeches, tendered to the court on sentence for the YP, make no mention whatsoever, of any intention for s66C(3) to “capture” consensual sex between two 15 year olds. The references in the second reading speeches to offenders is exclusively, to adult offenders. It is therefore not surprising that the BOCSAR statistics reflect that the prosecution of the YP was a rarity.
  1. It is reasonable to accept it is very likely that police/prosecutors would be aware of a substantial number of other allegations of young persons under the age of 16 years having had sex with someone also under 16 years of age. If that is a reasonable proposition, then, the prosecution of the YP demonstrates an instance of a very unusual use of prosecutorial discretion. In the circumstances, the prosecution of the YP was in my view, perverse.


Although, the court cannot interfere with prosecutorial discretion to prosecute, the court’s acceptance of the rarity of a prosecution where the YP is younger than or at about the same age as the complainant and where the “sex” was consensual, is a relevant matter on sentence.

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