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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

The Age of Consent and Child Sex Offences (WA)


Every Australian jurisdiction has different criminal laws and therefore, different laws relating to the age at which a person can consent to sex. In Western Australia, the age of consent is 16. This is the same regardless of the type of sexual activity and regardless of the gender of the participants.  A young person who is 16 or 17 cannot legally of the consent to sex with a person who occupies a position of authority over them. In such a situation, the age of consent is 18.

Having sex with a child who is below the age of content can result in a significant term of imprisonment, with the maximum penalty depending on the age of the child and their relationship with the offender.

What is consent?

Consent is defined at law as agreement freely and voluntarily given. Consent is not given freely and voluntarily if it is obtained through threats, force, intimidation, deceit or by fraudulent means (Criminal Code Compilation Act, Section 319).

A child under 13 cannot consent to sex with any other person.

What is sex?

The age of consent laws apply to the penetration of a vagina, anus or mouth by a person’s penis or the penetration of a person’s vagina or anus by another person using an object. The age of consent laws also apply to non-penetrative sexual acts such as oral sex.

The Age of Consent: Sexual offences against children under 13

In Western Australia, it is an offence to have any sexual contact with a child who is below the age of 13. Different penalties apply for different sexual acts with children under 13. Sexual offences against children are contained in the Criminal Code Compilation Act. The offences against children under 13 are also set out in the table below.

PROVISIONOFFENCEAGE OF CHILDMAXIMUM PENALTY
Section 320(2)Sexual penetrationUnder 13Imprisonment for 20 years
Section 320(3)Procure, incite, encourage to engage in sexual behaviourUnder 13Imprisonment for 20 years
Section 320(4)Indecent dealingUnder 13Imprisonment for 10 years
Section 320(6)Indecently record childUnder 13Imprisonment for 10 years

The Age of Consent: Sexual offences against children aged between 13 and 16

It is an offence in Western Australia for a person to have sexual contact with a child aged under 16. However, it is a defence if:

A) The accused was less than 3 years older than the child;

 B) The accused believed on reasonable grounds that the child was aged at least 16;

 C) The accused and the child were lawfully married at the time.

The penalties that apply for different types of sexual contact with children under 16 are set out in the table below.

PROVISIONOFFENCEAGE OF CHILDMAXIMUM PENALTY
Section 321(2)Sexual penetration of child13-16Imprisonment for 14 years (20 years if the child is under the offender's supervision or care)
Section 321(3)Procure, incite or encourage child to engage in sexual behaviour13-16Imprisonment for 14 years (20 years if the child is under the offender's supervision, care or authority)
Section 321(4)Indecent dealing with child13-16Imprisonment for 7 years (10 years if the child was under the offender's supervision, control or authority)
Section 321(5)Procure, incite or encourage child to do sexual act13-16Imprisonment for 7 years (10 years if the child was under the offender's supervision, control or authority)
Section 321(6)Indecent record child13-16Imprisonment for 7 years (10 years if the child was under the offender's supervision, control or authority)

The Age of Consent: Sexual offences by persons in authority

It is an offence for a person with the care, supervision or authority over a child aged 16 or 17 to have sexual contact with the child. However, it is a defence to such an offence if the accused was lawfully married to the child at the time. It is important to note that it is not a defence to this offence if the accused believed on reasonable grounds that the child was aged 18 or older.

The penalties that apply to sexual offences against children aged 16 or 17 by a person in authority are set out below.

PROVISIONOFFENCEAGE OF CHILDMAXIMUM PENALTY
Section 322(2)Sexual penetration of a child16 - 17Imprisonment for 10 years
Section 322(3)Procure, incite or encourage to engage in sexual behaviour16 - 17Imprisonment for 10 years
Section 322(4)Indecent dealings with child16 - 17Imprisonment for 5 years
Section 322(5)Procure, incite or encourage to engage in indecent act16 - 17Imprisonment for 5 years
Section 322(6)Indecently record child16 - 17Imprisonment for 5 years

Conclusion

The age of consent laws in Western Australia, like those in other states, include provisions that allow for sexual contact between young people who are similarly aged while prohibiting sex between adults and young people under 16. Age of consent laws seek to balance a recognition that sexual development and increasing sexual activity is part of growing up with the prohibition of exploitation of children by older people.

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

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