Age of consent laws
Last updated November 2013
According to criminal law in Australia, the age of consent refers to the age a person is considered to be capable of legally giving informed consent to sexual acts with another person. When an adult engages in sexual behaviour with someone below the age of consent, they are committing a criminal offence (child sexual abuse).
This document is provided as a guide only. Information is current up to the date of publication. Individuals are encouraged to check the currency of any information that is provided by contacting relevant departments or organisations.
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 do not have the emotional maturity to consent to 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sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws (Eade, 2003).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 psychological 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).
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, Victoria and Western Australia. In Tasmania and South Australia the age of consent is 17 years of age. Queensland is the only state that makes a distinction between different forms of sexual activity and the age of consent. In Queensland, the age of consent for anal sex (referred to as sodomy in legislation) is 18 years of age, while the age of consent for all other sexual behaviour (described as carnal knowledge) is 16 years of 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 was 10 years or younger at the time of the alleged offence in the Australian Capital Territory, 12 years or younger in Queensland and Victoria, 13 years or younger in Western Australia, and 16 years or younger in South Australia.
The second statutory defence relates to situations in which the two people are close in age. 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 2 years older, in WA no more than 3 years older, than the person against whom the offence is alleged to have been committed. In Tasmania it is a defence if the child is 15 years of age and that the accused person was not more than 5 years older than the child, or if the child is above 12 years of age and the accused person is not more than 3 years older than the child. Details for other states can be found in Table 1.
In Victoria and WA there is legal provision for defence if the accused can demonstrate they are lawfully married to the child.
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 is an offence for a person to engage in sexual interactions with a person aged 16 or 17 years if the young person is under his or her special care or supervision. 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.
"Normal" 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). 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. If two young people who are close in age engage in a sexual relationship and there is no evidence of a power imbalance or violence, the sexual interaction is not a legal issue (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.
Inappropriate and abusive 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.
According to Ryan (1997), the key elements of consent include:
- understanding what is being proposed without confusion (not being tricked or fooled);
- knowing the standard for the behaviour in the family, the peer group and the culture (both parties have similar knowledge);
- having an awareness of possible consequences, such as punishment, pain, pregnancy or disease (both parties similarly aware);
- having respect for agreement or disagreement without repercussion; and
- having the competence to consent (being intellectually able and unaffected by intoxication).
Equality relates to the balance of power and control in the relationship. Indicators of inequality include size and weight differences, age differences and differences in intellectual development. Indicators of power differentials are more subtle and they are often established prior to sexual interactions; for example, a strength differential may have been established in earlier wrestling, fighting or play (Ryan, 1997).
In considering the final factor of coercion, Ryan (1997) determined that coercion is the peer pressure put on one child by another to achieve compliance. 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.
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.
Age of consent laws are important measures for protecting children and young people from sexual exploitation. Whether the sexual interaction between an adult and a person under the age of consent appeared consensual is irrelevant, as the laws determine that children and young people do not possess the maturity to consent to sex with an adult. Adolescence is an important developmental period in which young people are developing autonomy and forming relationships. 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 or criminalise the sexual exploration with peers that is normal for their age and stage in life.
- 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.
- 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.
- Cameron, S. (2007). Age of consent. HIV Australia, 5(3), 1-7. Retrieved from <www.afao.org.au/view_articles.asp?pxa=ve&pxs=103&pxsc=127&pxsgc=139&id=603>.
- Department of Social Services. (2013). National Framework for Protecting Australia’s Children 2009–2020. 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.
- 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.
This paper was updated by Debbie Scott, a Research Fellow with the Child Family Community Australia infomation exchange at the Australian Institute of Family Studies. The content is current as of November 2013.
Previous editions have been compiled by Alister Lamont.
Published by the Australian Institute of Family Studies, November 2013
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