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).

Age of consent laws cannot be considered in isolation to other legislation concerning issues such as sexual assault and child sexual abuse. For more information about the legislation concerning these issues, see the Brief Review of Contemporary Sexual Offence and Child Sexual Abuse Legislation in Australia (Boxall, 2014). For more information about preventing child sexual abuse, see Conceptualising the Prevention of Child Sexual Abuse report (Quadara, Nagy, Higgins, & Siegel, 2015).

Why are there age of consent laws?

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sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws (Eade, 2003).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).

What is the legal age of consent in Australian state and territory jurisdictions?

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.

Sexual interactions with 16 and 17 year olds under special care

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 an offence for a person in a supervisory role to sexually engage with a person under their special care who is aged 16 or 17 years. 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.

What if both parties are under the age of consent?

"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 (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.

Consent

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

Equality relates to the balance of power and control in the relationship. Indicators of inequality include size and weight 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).

Coercion

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.

Provisions for legal defences in cases involving sexual activities with a person under the legal 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, 14 years or younger in the Northern Territory, 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, and in Western Australia not 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 the accused person was not more than 5 years older than the child, or if the child was above 12 years of age and the accused person was not more than 3 years older than the child. Details for other states can be found in Table 2.

In Victoria and Western Australia there is legal provision for defence if the accused can demonstrate they are lawfully married to the child. In Queensland, there are separate legal defences in the legislation relating to unlawful sodomy.

The National Framework for Protecting Australia’s Children 2009-2020

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.

Conclusion

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.

For more information about differentiating peer sexual assault from developmentally normal sexual exploration, see Peer Sexual Assault.

References

• 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.
• Boxall, H. (2014). Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: Special report. Australian Institute of Criminology. Retrieved from <www.childabuseroyalcommission.gov.au/policy-and-research/published-research/contemporary-sexual-offence-and-abuse-legislation>
• Cameron, S. (2007). Age of consent. HIV Australia, 5(3), 1-7.
• 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.
• Quadara, A., Nagy, V., Higgins, D., & Siegel, N. (2015). Conceptualising the prevention of child sexual abuse: Final report (Research Report No. 33). Melbourne: Australian Institute of Family Studies. Retrieved from <aifs.gov.au/publications/conceptualising-prevention-child-sexual-abuse?no_cache=1456287381> 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.