What is the Legal age in Australia?
According to criminal law in Australia, the age of consent refers to the age a person is considered to be capable of legally giving informed consent to sexual acts with another person. When an adult engages in sexual behaviour with someone below the age of consent, they are committing a criminal offence (child sexual abuse).
Age of consent laws cannot be considered in isolation to other legislation concerning issues such as sexual assault and child sexual abuse. For more information about the legislation concerning these issues, see the (Boxall, 2014). For more information about preventing child sexual abuse, see report (Quadara, Nagy, Higgins, & Siegel, 2015).
Why are there age of consent laws?
Age of consent laws are designed to protect children and young people from sexual exploitation and abuse. Such laws effectively determine that children and young people below the age of consent do not have the emotional maturity to consent to sexual activities. In relation to sexual abuse charges in each state and territory, the key difference between child sexual assault and adult sexual assault is that adult sexual assault is based on the absence of sexual consent, whereas in child sexual assault, the issue of consent is superseded by age of consent laws (Eade, 2003). An important distinction should be made between "willingness" and "consent". A child may be willing to engage in sexual behaviour; however, as they do not have the psychological capacity to give consent according to law, all sexual interactions between an adult and a person under the age of consent are considered abusive (Barbaree & Marshall, 2006).
What is the legal age of consent in Australian state and territory jurisdictions?
The legal age for consensual sex varies across Australian state and territory jurisdictions (see). The age of consent is 16 years of age in the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. In Tasmania and South Australia the age of consent is 17 years of age.
Sexual interactions with 16 and 17 year olds under special care
Although the legal age of consent throughout Australia is either 16 or 17 years of age, legislation in New South Wales, Victoria, Western Australia, South Australia and the Northern Territory makes it an offence for a person in a supervisory role to sexually engage with a person under their special care who is aged 16 or 17 years. A person in a supervisory role providing "special care" may include: a teacher, foster parent, religious official or spiritual leader, a medical practitioner, an employer of the child or a custodial official. For further information regarding sexual interaction with 16 and 17 years old under special care please see the relevant state or territory legislation.
"Normal" sexual exploration
It is a common and normal part of sexual development for young people to explore and experiment in sexual interactions with their peers (Araji, 2004; Barbaree & Marshall, 2006; Eade, 2003). Appropriate sexual exploration is when there is mutual agreement between same- or similar-aged peers, it is non-coercive and all participants have the control to participate, continue or stop the behaviour (Barbaree & Marshall, 2006). The state jurisdictions that provide a legal defence when the sexual interaction is between two young people close in age (Western Australia, Tasmania, Victoria and the Australian Capital Territory) are attempting to find a balance that protects children and young people from adult sexual exploitation in a way that does not criminalise them for having sexual relationships with their peers.
Inappropriate and abusive sexual behaviour
Sexual interaction that is harmful and abusive between two young people under the legal age can be difficult to identify and determine. In situations where there is a clear age difference - for example a teenager and a young child - any sexual interaction is sexual abuse, as there is a definite power imbalance. However, when both parties are close in age, identifying whether the sexual activity is abusive is more complex. Ryan (1997) proposed three factors that must be considered in order to evaluate sexual interactions between two or more children: consent, equality and coercion. Reflecting on these three factors can help to clarify when behaviour is abusive.
According to Ryan (1997), the key elements of consent include:
- understanding what is being proposed without confusion (not being tricked or fooled);
- knowing the standard for the behaviour in the family, the peer group and the culture (both parties have similar knowledge);
- having an awareness of possible consequences, such as punishment, pain, pregnancy or disease (both parties similarly aware);
- having respect for agreement or disagreement without repercussion; and
- having the competence to consent (being intellectually able and unaffected by intoxication).