What is the Age of Sexual Consent in New South Wales?

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Consent

The law says a person is unable to lawfully agree to sexual activity such as sexual intercourse, sexual touching or a sexual act before they reach a certain age, this is known as the ‘age of consent’.

This means a person who engages in sexual activity with a child under that age can be found guilty of a sexual offence regardless of whether the child gave express or implied consent to the conduct.

The age of consent is generally 16 years in New South Wales, but there are important exceptions.

Two of these exceptions are contained in section 73 and 73A of the Crimes Act 1900, which respectively make it an offence engage in sexual intercourse with a person under the age of 18 years if they are under the ‘special care’ of a person, or to sexually touch a person under special care.

Sexual intercourse with a person under special care

Sexual Intercourse with a young person under special care is an offence under section 73 of the Crimes Act 1900, which 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. You had sexual intercourse with a young person,
  2. You 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 your ‘special care’ if:

  1. You were his or her step-parent, guardian, authorised carer, or the de facto partner of his or her parent, guardian or authorised carer
  2. You were a member of the teaching staff at his or her school,
  3. You established a personal relationship with him or her in connection with the provision of religious, sporting, musical or other instruction,
  4. You were a custodial officer at an institution where he or she was an inmate, or
  5. You were a health professional and he or she was your patient.

You cannot be found guilty if you were married to the young person.

Sexual touching of a person under special care

Sexual touching of a young person under special care is an offence under section 73A of the Crimes Act 1900, which carries a maximum penalty of 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:

  1. You sexually touched a young person, or you incited a young person to sexually touch themselves, or you incited a third person to sexually touch a young person, or you incited a young person to sexually touch a third person, and
  2. You did so intentionally.

‘Sexual touching’ is defined as 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.

Again, a ‘young person’ is a person aged at least 16 but less than 18 years, you cannot be found guilty if you were married to the young person and special care has the same meaning as with section 73.

Legal defences to charges relating to 

Under section 80AG of the Crimes Act, it is a specific statutory defence to the charges below where  you and the complainant were of ‘similar age’, which means the complainant was at least 14 years of age and you were no more than 2 years older:

  • Sexual intercourse with a child between 10 and 16 years of age, under section 66C of the Crimes Act;
  • Sexual touching of a child between 10 and 16 years, under section 66DB,
  • Sexual act with child between 10 and 16 years, under section 66DD, 
  • Sexual intercourse with child under special care under section 73, and
  • Sexual touching of child under special cause under section 73A.

General legal defences also apply, including duress, self-defence and necessity.

Where you are able to raise evidence of the statutory defence or a general legal defence, the onus then shifts to the prosecution to disprove that defence beyond a reasonable doubt.

You are entitled to an acquittal if the prosecution is unable to do so.

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Author

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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