The criminal laws of different states and territories across Australia are notorious for their lack of consistency. One example of this is the age of consent for sexual acts. While the age of consent is 16 in the majority of jurisdictions, it is 17 in South Australia and Tasmania. This applies to penetrative sexual intercourse, both heterosexual and homosexual, and to sexual acts that fall short of penetration.
What is consent?
Consent is defined as free and voluntary agreement (Criminal Law Consolidation Act, Section 46). A person does not consent if they agree to sexual activity because of threats, force or while they are unlawfully detained. A person who is asleep or unconscious cannot consent nor can a person who is physically or mentally impaired so as to be unable to freely and voluntarily agree.
Sex without consent is an offence regardless of the age of the victim. While non-consensual sex with an adult is charged as rape under Section 48 of the Act, a range of offences exist in relation to sex acts with children and individuals can be found guilty of these regardless of the consent or otherwise of the victim.
Children under 17
In South Australia, a person who has sex with a child under 14 commits an offence punishable with a maximum of life imprisonment (Section 49(1)).
A person who has sex with a child aged under 17 is guilty of an offence publishable by a maximum of 10 years (Section 49(2)). However, it is a defence to this charge if
- The young person was aged 16 or over; and
- The accused is aged under 17; or
- The accused believed on reasonable ground that the young person was aged 17 or older. (Section 39(3))
It is worth noting that, unlike in many other states, in South Australia there is no defence available to this charge based on the consent of the young person. If a 17 year old has sex with a 14 year old, they commit an offence regardless of the 14 year old’s consent.
Offences under Section 49 do not apply if the two people are married to each other.
Person in position of authority
It is an offence for a person in a position of authority over a young person to have sex with the young person if he or she is under 18. Positions of authority include teachers, tutors, health professionals, employers and foster carers.
For the purposes of sex with a person in a position of authority, the age of consent is 18.
Romeo and Juliette laws
In most Australian states, provisions exist whereby it is a defence to a child sex offence if the participants were teenagers of a similar age in a consensual relationship. These are known as ‘Romeo and Juliette laws’ and exist in recognition of the fact that adolescent sexual development is natural and should not be criminalised.
In South Australia, this defence is limited to the situation where both the ‘victim’ and the ‘offender’ are aged 16. In most other states an age difference of up to two years is allowed under Romeo and Juliette laws; in South Australia there is no such loophole. In this respect, the age of consent laws in South Australia are more stringent than in the rest of the country.
While sexual activity between two young people aged 14 or 15 is not legal in South Australia, the decision to prosecute one or both of the participants in this situation is up to the police’s discretion and will depend on the circumstances of the case.
If you require legal advice or assistance with any matter, please contact Go To Court Lawyers.