Defence of Similar Age

In most jurisdictions of Australia, there are some offences involving sexual contact with a child for which a defence of similar age applies. The defence of similar age is used where the accused and the alleged victim are close in age. It may only be used as a defence to offences that do not involve a lack of consent. There is a lot of variation between different states and territories as to when this defence can be relied on, particularly in relation to how old the child must have been at the time of the alleged offence for this defence to be available, and in Queensland and the Northern Territory there is no defence of similar age. This page deals with the defence of similar age in Australia.

Defence of similar age in New South Wales

In New South Wales, a number of child sex offences are contained in the Crimes Act 1900.

If the alleged victim of a child sex offence was 14 or older at the time of the alleged offence, and the age difference between the victim and the accused is no more than two years, then the accused may rely on the defence of similar age. This defence is set out in section 80AG of the Crimes Act 1900.

The defence of similar age is applicable to the following offences:

• sexual intercourse with a child between 14 and 16 years old under section 66C of the Crimes Act 1900
• sexual touching of a child between 10 and 16 years old under section 66DB of the Crimes Act 1900
• sexual acts with a child between 10 and 16 years old under section 66DD of the Crimes Act 1900
• sexual intercourse with a child under special care under section 73 of the Crimes Act 1900
• sexual intercourse with a child under special care under section 73A of the Crimes Act 1900

Defence of similar age in Victoria

In Victoria, sexual offences against children are set out in the Crimes Act 1958.

If the alleged victim of the offence was 12 or older at the time of the alleged offence, and the age difference between them and the accused is no more than two years, then the accused may rely on the defence of similar age.

An accused person may also rely on the defence of similar age if they reasonably believed that the alleged victim was 12 or older, and that the age different between the parties was no more than two years.

The defence of similar age in Victoria is set out in sections 49V and section 49W of the Crimes Act 1958.

The defence of similar age if applicable to the following offences:

• sexual penetration of a child under 16 under section 49B of the Crimes Act 1958
• sexual assault of a child under 16 under section 49D of the Crimes Act 1958
• sexual activity in the presence of a child under 16 under section 49F of the Crimes Act 1958

Western Australia

In Western Australia, sexual offences against children are set out in the Criminal Code Act Compilation Act 1913.

In WA, if a person is charged with having sexual contact with a child between the age of 13 and 16, they can rely on the defence of similar age if:

• they were less than three years older than the child; and
• they believed on reasonable grounds that the child was aged 16 or older.

It is important to note that the defence of similar age cannot be relied on if the accused was in a position of care, supervision or authority over the child.

Defence of similar age in the ACT

In the ACT, sexual offences against children are contained in the Crimes Act 1900.

A defence of similar age is available in the ACT if the alleged victim is aged over 10 and the accused was not more than two years older than them.

The defence of similar age is available for the following offence:

• sexual intercourse with a young person under section 55 of the Crimes Act 1900
• act of indecency with a young person under section 61 of the Crimes Act 1900

Defence does not exist in Queensland

In Queensland, sexual offences against children are set out in the Criminal Code 1899.

There is no defence of similar age in Queensland.

A person charged with having sexual contact with a child over 12 in Queensland has a defence if they believed that the child was over the age of 16. In the absence of such a belief, there is no defence where the accused was close in age to the child and the sexual contact was consensual. This is the case even where the child was 14 or 15.

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