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Can Young People Consent to Sex? (ACT)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

The criminal laws in Australian states and territories are notorious for their lack of consistency. The age at which a person can consent to sex is one example of this. While the age of consent is 16 in most jurisdictions, it stands at 17 in others. Different states have different defences available to charges of having sexual intercourse with a young person and different penalties are applicable. In the ACT, the age at which a person can consent to sex is 16.

What is consent?

Consent is defined as free agreement. A person does not consent to sex if they agree because of threats, force or intimidation or if they are asleep, unconscious or so intoxicated they cannot effectively consent. A person does not consent to sex simply because they do not physically resist.

Sex without consent is always an offence and can be charged under Section 54 of the Crimes Act. The maximum penalty for sexual intercourse without consent in the ACT is 12 years imprisonment.

What is sex?

For the purposes of the age of consent laws, sex includes penetration of the vagina or anus with a penis, finger, other body part or object. It also includes non-penetrative sexual contact such as oral sex. It includes heterosexual and homosexual contact.

Can you consent to sex when you are under 16?

Although the ACT has an age of consent of 16, there are some situations where it is permissible to have sex with a person under 16.

Similar age

If you are less that two years older than the young person, it is not an offence to have sexual contact even if the younger person is under 16, provided they consent to the contact and are over the age of 10. This is known as the Romeo and Juliette law and has an equivalent in most Australiana states and territories. These laws exists in recognition of the fact that teenagers are developing sexually, that young people can validly consent to sex with someone else of a similar age, and that this contact  should not be criminalised.

Mistake as to age

It is a defence to a charge of sex with a young person if you honestly and reasonably believed that they were aged 16 or older.

Child sex offences

It is an offence for anyone to have sex with a child under 10 and this offence is punishable by a maximum of 17 years (Section 55(1)).

It is an offence for a person to have sex with a child under 16, in any situation other than the two situations discussed above. This offence is punishable by a maximum of 14 years (Section 55(2)).

Sex with a young person under special care

It is an offence to have sex with a young person who is under your special care, if the young person is under 18 and you are more than two years older than them. Special care includes teachers, foster carers, sports coaches, youth workers, health professional and counsellors (Section 55A).

This means that the age at which you can consent to sex is 18 when it comes to sex with a person in a position of authority.

Sex offenders registry

All adults who are found guilty of a sex offence against a young person are added to the Sex Offender Registry. A person under 18 who is found guilty of a sex offence can also be added to the registry but this requires a special order by the court. Persons on the Sex Offenders Register are required to keep the police informed of their address and employment details. They are prohibited from working with children and are required to report to the police the details of any children with whom they have regular contact.

If you require legal advice or assistance please contact Go To Court Lawyers.

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