Age of Consent (NSW)
In New South Wales, a person can legally consent to sexual activity once they are 16 years of age. A person who is under 16 years of age cannot lawfully consent to sexual activity, whether it be kissing, touching or sexual intercourse. Any person who engages in sexual activity with a person who is under the age of consent may be guilty of a crime.
Having sex with an underage person is an offence even if the person under 16 wanted to engage in the conduct. This is because a person under the age of 16 is legally incapable of consenting to sexual activity. A person under the age of 16, who wants to engage in sexual activity may be considered to be a ‘willing participant’. However, that does not mean the act is consensual at law.
As outlined above, the age of consent in New South Wales is 16 years meaning that sexual activity with any consenting person who is above the age of 16 is legal. However, there is an exception relating to relationships involving ‘special care’.
Age of consent and persons under special care
It is an offence to have sexual intercourse with, or sexually touch a young person who is between 16 and 18 years old where the person is under the persons ‘special care’. The offences are contained pursuant to section 73 and 73A of the Crimes Act 1900.
A young person is deemed to be under the ‘special care’ of another person if that other person is:
- A parent, or grandparent of the young person;
- The guardian or authorised carer of the young person;
- The spouse or de factor partner of a parent, grandparent, guardian or authorised carer of the young person;
- A teacher, principal or deputy principal of the young person;
- Performing work at the school of the alleged victim and has the young person under their authority;
- Has established a personal relationship with the young person through provision of religious, sporing, musical or other instruction;
- A custodial officer of an institution in which the young person is an inmate;
- A health professional to the young person;
- Performing work in association with residential care to the young person; or
- Performing work for an organisation that provides refuge or crisis accommodation to the young person.
Similar age defence
The defence of ‘similar age’ can be raised where the age difference between the alleged victim and the accused is less than 2 years, provided the victim is 14 years of age or older.
The defence of similar age can be argued in relation to sexual offences involving children under the age of 16. This most commonly occurs where:
- two persons between the ages of 14 and 16 engage in sexual activity and both are willing participants; or
- two persons engage in sexual activity and both are willing participants but one person is above the age of 16 and the other is below, provided the age difference is no more than 2 years.
The defence of similar age has not always been a defence. It is located in section 80AG of the Crimes Act 1900 following an amendment in 2019.
Other possible defences
A person may have a defence to a child sexual offence with which they are charged if they are found to have made an ‘honest and reasonable’ mistake as to the age of the young person. The mistake must be both honest and reasonable. It is not enough that a person truly believed that another was over the age of 16 if the circumstances of that belief are not reasonable.
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