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What is the Age of Consent? (WA)

Every state and territory of Australia has different criminal laws and therefore, different laws relating to the age of consent. In Western Australia, the age at which a person can validly consent to sex is 16. This is the same for males and females and for heterosexual and homosexual sex.

A person who is aged 16 or 17 cannot validly consent to sex with a person who is in a position of authority over them. In these cases, the age of consent is 18.

What is consent?

Consent is defined as consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or other fraudulent means (Criminal Code Compilation Act, Section 319).

A child under the age of 13 cannot consent to sex.

What is sex?

The age of consent laws apply to sexual intercourse, meaning the penetration of the vagina, anus or mouth by a penis or the penetration of the vagina or anus by an object. They also apply to non-penetrative sexual acts such as oral sex.

Sexual offences against children under 13

It is an offence to have sexual contact with a child under the age of 13. Different penalties apply for different types of sexual behaviour with children under 13. In Western Australia, sexual offences against children are set out in the Criminal Code Compilation Act. The offences against children under 13 are 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 behaviour Under 13Imprisonment for 20 years
Section 320(4)Indecent dealingUnder 13Imprisonment for 10 years
Section 320(6) Indecently record childUnder 13Imprisonment for 10 years

Sexual offences against children aged 13 to 16

It is an offence for a person to have sexual contact with a child aged under 16. However, it is a defence if the person;

A) Was less than 3 years older than the child;
B) Believed on reasonable grounds that the child was over the age of 16;
C) Was lawfully married to the child.

Different penalties apply for different types of sexual behaviour with children under 16. These 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)

Sexual offences by person in authority

It is an offence to have sexual contact with a child aged 16 or 17 if you are a person with care, supervision or authority over the child. It is a defence to such an offence if the accused was lawfully married to the child at the time of the alleged offence. It is not a defence to prove that the accused believed on reasonable grounds that the child was over the age of 18.

The penalties that apply to 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 are similar to those in most other states and territories in that they allow for sexual contact to occur between young people of a similar age, while prohibiting sexual contact between adults and young people under 16. The age of consent laws in all jurisdictions seek to balance the interests of recognizing that sexual development and increasing sexual activity is part of growing up and  prohibiting the exploitation of children by older people.

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