Sexual Intercourse With Young Person

Sexual intercourse with a young person is distinguished from the other charges relating to sexual intercourse due to the age of the complainant. To be charged with this offence, the complainant must be under the age of 16 years. The maximum penalty for this offence ranges from 14 years to 17 years imprisonment, depending whether the sexual intercourse engaged in was with someone under the age of 16 years or under the age of 10 years, respectively.

It is important to note that consent is not a defence to this offence, as young persons are deemed incapable of providing consent to sexual intercourse. The exception to this is where the complainant was over 10 years of age and the accused was not more than 2 years older.

Penalties the court can impose:

• Imprisonment (Jail – Full Time)
• Intensive correction order (previously periodic detention)
• Community Service Order
• Suspended Sentence
• Good behaviour order
• Fine order
• Section 17: proven but dismissed

The Offence of Sexual Intercourse with A Young Person:

The offence of sexual intercourse with a young person is separated into two categories depending on the age of the complainant.

If the sexual intercourse is engaged in with a young person under the age of 16 years, the relevant provision is section 55(2) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with the complainant, who is under 16 years of age. This offence carries a maximum penalty of imprisonment for 14 years.

If the sexual intercourse is engaged in with a young person under the age of 10 years, the relevant provision is section 55(1) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with the complainant, who is under 10 years of age. This offence carries a maximum penalty of imprisonment for 17 years.

However, it is a defence to section 55(1) and section 55(2) of the Crimes Act 1900 if the accused can prove that either:-

• The accused believed on reasonable grounds that the complainant was at least 16 years old; or
• At the time of the alleged offence, the complainant consented to the sexual intercourse, the complainant was at least 10 years old and the accused was not more than 2 years older than the complainant.

This defence is contained in section 55(3) of the Crimes Act 1900.

What Is Sexual Intercourse?

To understand why you may be charged with sexual intercourse without consent, it is important to acknowledge the broad interpretation given to ‘sexual intercourse.’ Sexual intercourse is defined in section 50 of the Crimes Act 1900 as:-

• The penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
• The penetration, to any extent, of the genitalia or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
• The introduction of any part of the penis of a person into the mouth of another person; or
• Fellatio; or
• Cunnilingus; or
• The continuation of sexual intercourse as defined in any of the above.

• ‘Genitalia’ includes surgically constructed or altered genitalia; and
• ‘Object’ includes an animal.

What Actions Might Constitute Sexual Intercourse with A Young Person?

Examples of acts of indecency on young people include:-

• You arrange a coast trip with your girlfriend and her little sister who is 13 years old. Once your girlfriend has gone to bed, her sister asks if she can try performing fellatio on you. She willingly puts your penis in her mouth and you encourage her. You are 19 years old.
• You are at your neighbour’s house with his son who is 6 years old. You sit him on your lap and insert a finger in his anus.
• You are 17 years old and in year 11 at school. You have been flirting with one of the year 9 girls who you assume is 15 years old. You have sexual intercourse and continue hanging out afterwards, and both of you are happy. The girl’s mother reports you to the principal because she is actually still 14 years old.

What the Police Must Prove:

To convict you of engaging in sexual intercourse with a young person, the prosecution must prove each of the following matters beyond reasonable doubt:

• That you engaged in an act; and
• That act constituted sexual intercourse; and
• The sexual intercourse was engaged in with a person under 16 years of age; and
• You did not believe on reasonable grounds that the young person was at least 16 years old.

If the young person was at least 10 years old the prosecution must also prove, in addition to the above, that:-

• The young person did not consent to the sexual intercourse; and
• If the young person did consent, that you were more than 2 years older than the young person.

Possible Defences for Sexual Intercourse with A Young Person:

The common ways to defend this charge are:-

• To maintain your innocence if you did not engage in sexual intercourse; or
• To argue that the act did not constitute sexual intercourse; or
• To argue that you believed on reasonable grounds that the young person was at least 16 years old; or
• If the person on whom the offence was committed was over 10 years of age and you were less than 2 years older than them, to argue that they consented to the sexual intercourse.

Which Court Will Hear Your Matter?

Sexual intercourse with a young person is a strictly indictable matter and will be dealt with in the ACT Supreme Court.