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 not 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 raised in relation to the following offences, where the alleged victim is 14 years or older:

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;

However, it is relevant to note that the defence of similar age is only available in relation to specific offences, being offences where consent (or lack of consent), is not an element to the charge.

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.

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.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.