Sexual Offences Against Young Persons Under ‘Special Care’ in New South Wales

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The story of Chris Dawson, a high school teacher who married one of his former student’s after his wife Lynette’s disappearance in 1982 is a case that has gripped the nation. 

And justice for Lynette’s family has been a long time coming. After two separate coronial inquiries and various police investigations, Chris Dawson was found guilty of the murder of Lynette last year and is now serving 24 years behind bars, with eligibility for parole after 18 years. 

Over the years, the story of Lynette’s disappearance has been the subject of TV documentaries, magazine articles, news headlines and a highly successful podcast. 

Brothers’ alleged sexual relationships with their students

Chris and his twin brother Paul were both teachers at high schools on the Northern Beaches in the 1980s after their careers as professional footballers ended, and there have long been rumours that both men had sexual relationships with their students. 

Earlier this year, Chris Dawson was found guilty of “carnal knowledge” with an underage teenager identified only as AB. 

During the trial, the court heard that both the brothers had sex with teenage girls at opposite ends of the same pool.

Now, Paul Dawson has been publicly accused of having sexual intercourse with one of his underage students.  

The accusation against Paul Dawson

Former Forest High School student Shelley Oates-Wilding told the Nine Network’s 60 Minutes programme that she was aged 15 or 16 at the time of the “intimate” contact. She was also a babysitter to Paul’s children. 

She is one of several former students from Sydney’s Northern Beaches who made similar allegations against Paul Dawson, who is now 75 years old. 

However, it is important to emphasise that no criminal charges have been laid against Mr Dawson and he has vehemently denied ever having sexual relations with Shelley Oates-Wilding, adamantly asserting the allegations are ‘false’.   

He is therefore entitled to the presumption of innocence until and unless charges are brought against him and those accusations are proven beyond a reasonable doubt in a court of law.

The age of consent in NSW

The current age of consent in New South Wales – meaning the age before which a person cannot consent to sexual activity – is 16 years.

There is, however, an important proviso to this. The age of consent increases to 18 years where the alleged victim is under the ‘special care’ of the defendant.

In that regard, section 73 of the Crimes Act 1900 (NSW) contains the offence of sexual intercourse with a young person under special care.

The offence carries a maximum penalty of 4 years in prison where the young person was at least 17 but less than 18 years of age, or 8 years in prison where the young person was at least 16 but less than 17 years of age.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant had sexual intercourse with a young person,
  2. The defendant knew, or were reckless as to whether, he or she was a young person, and
  3. The young person was under your ‘special care’.

‘Sexual intercourse’ is defined as:

  1. The penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person, 
  2. The introduction of a penis into the mouth of another person, 
  3. Cunnilingus, or
  4. The continuation of any of these activities.

A ‘young person’ is someone aged at least 16 but less than 18 years.

The young person was under a person’s ‘special care’ if that person:

  1. Was the young person’s step-parent, guardian, authorised carer, or the de facto partner of his or her parent, guardian or authorised carer,
  2. Was member of the teaching staff at his or her school,
  3. Established a personal relationship with the young person in connection with the provision of religious, sporting, musical or other instruction,
  4. Was a custodial officer at an institution where the young person was an inmate, or
  5. Was the health professional for the young person.

A person cannot be found guilty he or she and the young person were married.

Another proviso to the general rule that the age of consent is 16 years is found in section 73A of the Crimes Act 1900 (NSW), which contains the offence of sexual touching of a young person under special care.

The maximum penalty for that offence is 2 years in prison where the young person was at least 17 but less than 18 years of age, or 4 years in prison where the young person was at least 16 but less than 17 years of age.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Sexually touched a young person, or incited a young person to sexually touch themselves, or incited a third person to sexually touch a young person, or incited a young person to sexually touch a third person, and
  2. Did so intentionally.

‘Sexual touching’ is touching another person with any part of the body, or through anything, including clothing, where a reasonable person would consider it to be sexual.

Matters that are relevant when determining whether touching is sexual include:

  1. Whether there is touching of the genitals, or the breasts of a female, or the breasts of someone who identifies as female,
  2. Whether the act was for sexual arousal or gratification, and
  3. Whether any other aspect of the touching, or the surrounding circumstances, make it sexual.

Touching is not sexual if it was carried out for a genuine medical or hygienic purpose.

The definitions of ‘young person’ and ‘special care’ are the same as for the previously-outlined section and, once again, the defendant cannot be found guilty if he or she was married to the young person.

General legal defences

General legal defences including duress, necessity and self-defence apply to the above charges.

Where evidence of such a defence has been raised, the prosecution is required to disprove beyond a reasonable doubt that the defence applies in the circumstances of the case.

The defendant is entitled to an acquittal if the prosecution is unable to do this.

History of the age of consent in NSW

The age of consent in New South Wales was 12 years before 1883. It increased to 14 years in that year and then to 16 years in 1910. 

The general age of consent has been 16 years in our state since 1910.

In the 1970s and 1980s, in response to growing social concerns regarding child sexual abuse was prevalent, many jurisdictions began to strengthen laws against child sexual abuse by focusing on creating laws which outlines the definition of  sexual penetration / sexual intercourse, otherwise called “carnal knowledge” and offences were introduced where the accused person was in a position of authority and trust. 

Child abuse material laws and regulations around mandatory reporting were also introduced during this period. 

Protecting children and teenagers 

Then, after the Royal Commission into Child Sexual Abuse’s horrific findings – the Commission heard stories of abuse within almost 3,500 institutions (organisations, religious communities, schools etc) across Australia – a range of new offences were introduced in many jurisdictions. 

New South Wales was one of the first states to respond comprehensively to the Commission’s findings, bringing laws into effect in 2018, which offer much greater protections for children and tougher sentences for offenders. The laws also updated the language typically used in the judicial process, making it much more modern, and easier to understand, which is beneficial for both victims, and juries. 

Child Sex Offences in New South Wales 

The Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018’s reforms included broadening the definition of grooming offences, under 66EB (3) making it a crime to offer a child a material or financial benefit to engage in sexual activity.  Under the laws, it is also a crime to groom a parent or carer with the intention of engaging in sexual activity by offering financial or other material benefits. 

Persistent sexual abuse was also redefined. This is an section 66EA of the Crimes Act 1900. Under the section, an adult who engages in  two or more unlawful sexual acts with a person under 16 now faces a maximum penalty of life imprisonment.

The new offence of sexual touching of a young person between 16 and 18 under special care which is outlined above was created. 

A new failure to report offence, under section 316A of the Crimes Act requires all adults to report child sexual abuse and failing to do so can lead to prison time of 2 years. And section 43B defines the new ‘failure to protect’ offence. Anyone who is aware of a child at risk of child abuse has a duty to reduce the risk, or remove it.  

A significant change to the Sentencing Procedures Act stipulates that an historical child sex crime an offender must be sentenced under current laws, rather than those in place at the time the offence. 

As police have explained in the wake of the story going to air, individuals have a choice to pursue historical offences, should they wish to do so. 

Because the effect of child sexual abuse is complex trauma, it can take victims years to come to terms with what happened to them, and then they speak out. Certainly in the aftermath of the publicity and government action surrounding the Royal Commission, when issues were brought out into the open, many victim survivors who had remained silent finally felt empowered to tell their own stories and in some cases to instigate police investigations. 

Court cases are ongoing. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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