This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
The Age of Consent (ACT)
The age of consent is the age at which a young person can legally consent to sexual activity with another person. While the age of consent is 16 in most Australian jurisdictions, it stands at 17 in others. Different states have different defences available to charges of having sexual intercourse with a young person below the age of consent and different penalties apply. In the ACT, the age of consent is 16.
What is consent?
Consent is defined at law as free agreement. A person does not validly consent to sex if they acquiesce because of threats, force or intimidation or if they are asleep, unconscious or so intoxicated they cannot effectively consent. A person is not taken to consent to sex simply because they do not physically resist.
Sex without consent is always an offence regardless of the ages of the parties and can be charged under Section 54 of the ACT Crimes Act. The maximum penalty for sexual intercourse without consent in the ACT is imprisonment for 12 years.
What is the definition of sex?
For the purposes of the age of consent laws, sex includes the penetration of a person’s vagina or anus with a penis, finger, other body part or with an object. It also includes non-penetrative sexual contact such as oral sex. It includes heterosexual and homosexual activity.
Sex with person below the age of consent
Although the ACT has an age of consent of 16, there are some situations where it is legal to have sex with a young person aged under 16.
Similar age
If you are less that two years older than a person under the age of consent, it is not an offence to have sexual contact with them, provided they consent and are aged over 10. This is known as the Romeo and Juliette law. It has an equivalent in most Australiana states and territories. These laws exists in recognition of the fact that teenagers are developing sexually, that young people can validly consent to sex with someone else of a similar age, and that this activity should not be criminalised.
Mistake as to age
It is a defence to a charge of sex with a young person under 16 if you honestly and reasonably believed that the young person was aged 16 or older.
Offences relating to sex with child under age of consent
It is an offence for a person to have sex with a child under the age of consent, in any situation other than the two situations discussed above. This offence is punishable by a maximum of 14 years imprisonment (Section 55(2)).
The ACT also has offences relating to sex with a child under particular circumstances.
Sex with child under 10
Under section 55(1), It is an offence for anyone to have sex with a child under 10 and this offence is punishable by a maximum of 17 years imprisonment.
Sex with a young person under special care
It is an offence to have sex with a young person who is under your special care, if the young person is under 18 and you are more than two years older than them. Special care includes teachers, foster carers, sports coaches, youth workers, health professional and counsellors (Section 55A).
This means that the age at which you can consent to sex with a person in a position of authority over you is 18.
Sex Offender Registry for those who offend against children under age of consent
All adults who are found guilty of a sex offence against a person below the age of consent are added to the Sex Offender Registry. A person under 18 who is found guilty of a sex offence can also be added to the registry but this requires a special order by the court. Persons on the Sex Offenders Register are required to keep the police informed of their address and employment details. They are prohibited from working with children and are required to report to the police the details of any children with whom they have regular contact.
If you require legal advice or assistance please contact Armstrong Legal.