Defence Of Similar Age (NSW)

Where a person has been charged with a child sexual offence and the age difference between the victim and the accused is not more than two years with the alleged victim being 14 years or older at the time of the offence, they may be able to rely on the defence of similar age. The defence of similar age is a complete defence to certain child sexual offences. 

The Legislation:

Availability of Defence: 

The defence of similar age only applies to the following offences:

1. Sexual intercourse – child between 14 and 16 pursuant to section 66C(3) of the Crimes Act 1900;
2. Sexual touching – child between 10 and 16 pursuant to section 66DB of the Crimes Act 1900;
3. Sexual act – child between 10 and 16 pursuant to section 66DD of the Crimes Act 1900;
4. Sexual intercourse – young person between 16 and 18 under special care pursuant to section 73 of the Crimes Act 1900;
5. Sexual touching – young person between 16 and 18 under special care pursuant to section 73A of the Crimes Act 1900. 

The defence of similar age is only available where consent (or lack of consent) is not an element to the charge. Practically this means that while a person under the age of 16 cannot legally consent to sexual intercourse, the defence of similar age will only be available when the alleged victim agreed to participate in the sexual activity. 

Onus of Proof:

The Act states that the Prosecution has the onus (burden) of proving beyond a reasonable doubt that the alleged victim was less than 14 years of age, or that the difference between the age between the victim and the accused person was not more than 2 years.