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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

The Defence of Similar Age

In New South Wales, it is a defence to numerous child sex offences if the age difference between the victim and the accused is no more than two years, and the alleged victim was 14 years or older at the time of the offence. The defence of similar age can be argued in relation to sexual intercourse with a child under 16, sexually touching a child under 16 and carrying out a sexual act with a child under 16. It can also be argued in relation to sex offences against children aged between 16 and 18 where the child was under the accused’s special care.

Onus of proof

Section 80AG of the Crimes Act 1900 outlines when the defence of similar age is available and who bears the onus of proof. The provision states that the prosecution has the onus of proving beyond a 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 was more than two years.

What offences does the defence apply to?

The defence of similar age is available for 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

Why does the defence of similar age exist?

The defence of similar age was introduced in 2019 to protect teenagers from being criminalised for consensual sexual contact with younger teenagers where the age difference is no more than two years.

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