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Teen Sex

In a recent decision that all parents of teenagers should be very aware of, the Tamworth Local Court sentenced a (then) 18 year old to imprisonment for 3 years and 6 months for having sex with his (then) 15 year old girlfriend. As a result of the conviction he will also be registered as a sex offender. The pair met in high school where they were 2 years apart and the sex was reported to be consensual in the everyday sense of that word.

I was not present at those proceedings and it would be entirely wrong for me to comment on that judgment specifically. However, as a general proposition it is, in my view, entirely wrong for the law to criminalise and punish consensual sex between adolescents simply because one is under 16 and the other is over. Of course, the law must protect children from being manipulated into acts that they are not emotionally or intellectually prepared for, particularly by those who would exploit a power imbalance, be it emotional or physical. However the law should recognise that there is no bright line at which such maturity is reached and acknowledge the obvious reality that sexual exploration is a normal and healthy part of growing up (Araji, 2004; Barbaree & Marshall, 2006; Eade, 2003).

The law in NSW as it presently stands provides that any person who has sexual intercourse with another person aged between 14 and 16 is liable to imprisonment for 10 years: section 66C(3) Crimes Act NSW. This legislation lags behind other jurisdictions (Western Australia, Tasmania, Victoria and the ACT) which offer a defence where the difference in age betwen accused and victim falls below a specified threshold.

There is some recognition of the injustice that can result from the law in NSW in the fact that 6% of offenders who pleaded guilty in the Local Court had their charge dismissed without a conviction even being recorded. Nevertheless, it is time for the law in NSW to be amended, perhaps so as to provide a defence in circumstances where the accused is less than 3 years older than the victim, there was no coercion, and the accused did not exploit a substantial developmental, emotional or intellectual imbalance in committing the offence. Of course such a subjective test presents its own problems but that is preferable to the inevitable injustice that is borne of otherwise rigid and inexorable law.

Image Credit – Miramiska ©

Written by Michael Hempsall on August 7, 2017

Armed with this unique perspective Michael offers his clients genuine understanding and sensitivity, to the point legal advice, and presents with a style of advocacy that speaks of his many years experience in the criminal jurisdiction. View Michael's profile

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