Defence of Similar Age


It is a defence to a having sexual intercourse with a child, sexually touching a child, carrying out a sexual act with or towards a child, or sexually touching a person between the age of 16 and 18 if they are under the persons special care, if the age difference between the victim and the accused is no more that two years, and the victim was 14 years or older.

The Law of Defence of Similar Age

Section 80AG of the Crimes Act 1900 outlines when the defence of similar age is available:

  • It is a defence to a prosecution for an offence under section 66C (3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than 2 years.
  • In any criminal proceedings in which the application of this section is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the alleged victim was less than 14 years of age or that the difference in age between the alleged victim and the accused person is more than 2 years.

What offences does the defence apply to?

This defence is available to the following offences under the Crimes Act 1900:

  • Section 66C(3) – Sexual intercourse with a child between the ages of 14 and 16
  • Section 66DB – Sexually Touching a Child
  • Section 66DD – Carrying gout a sexual act with or towards a child
  • Section 73 – Sexual intercourse with a young person under special care
  • Section 73A – Sexual touching of young person under special care

Raising Defence of Similar age

An accused only needs to raise the defence of similar age as an issue in their case. Then it is for the prosecution to prove, beyond reasonable doubt, that that defence does not apply.

The prosecution must prove beyond reasonable doubt, either:

  • That the age gap was more than two years, or
  • That the victim was less than 14 years old.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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