Age of Consent in Sydney

The general age of consent in Sydney and elsewhere in New South Wales is 16. This means that a person who is aged 16 or older can validly consent to sexual activity with other people in NSW. A person who engages in sexual acts with a person who is under the age of 16 may be charged with a criminal offence. It is also illegal to engage in sexual activity with a younger person who is between the age of 16 and 18 if they are under your special care. This article outlines the laws around the sexual age of consent in Sydney and the rest of NSW.

What is consent?

Section 61HE of the Crimes Act 1900 defines consent for the purposes of sexual offences as free and voluntary agreement to sexual activity. The provision further states that a person is not taken to have consented to sex if:

• They were asleep or unconscious;
• They agreed because of threats or force;
• They were unlawfully detained;
• They did not have the cognitive capacity to consent;
• They consented because of a mistaken belief about the identity of the other person;
• They consented because of a mistaken belief that they were married to the other person;
• They consented because of a mistaken belief that the act is for medical or hygienic purposes or another mistaken belief about the nature of the act.

A person is not to be taken to have consented to sex merely because they did not physically resist. A person may be established not to have consented based on the fact that they were substantially intoxicated, were subjected to threats or intimidation or consented because of the abuse of a position of trust.

Age of consent in Sydney and persons under special care

It is an offence in Sydney and the rest of NSW for a person to have sexual contact with a young person aged 16 or 17 if the young person is under their ‘special care’. Situations where a person is under another person’s special care include where the other person is the young person’s parent, step-parent, grandparent, guardian, carer, teacher, principal or health professional.

In the situation where a young person is under another person’s special care, the age of consent that applies is 18. 

Offences relating to sex with child below the age of consent in Sydney

The Crimes Act 1900 contains a range of offences relating to sexual activity involving a child below the age of consent in Sydney or elsewhere in NSW. Some of these are summarised below.

Sexual intercourse – child under 16

Under section 66DB, it is an offence to have sexual intercourse with a child under 16. The maximum penalty that applies for this offence depends of the age of the child involved. Where the child is between 14 and 16, a maximum term of 10 years applies (or 12 years where there are circumstances of aggravation). Where the child is between 10 and 14, a maximum of  16 year applies (or 20 years where there are circumstances of aggravation).

Sexual intercourse – child under 10

Under section 66, it is an offence to have sexual intercourse with a child under 10. This offence carries a maximum penalty of imprisonment for life and a person sentenced to life imprisonment for this offence will have to serve the term of their natural life.

Sexual touching – child under 16

Under section 66DB, a person who sexually touches a child between the ages of 10 and 16 or procured another person to do so is guilty of an offence and liable to up to 10 years imprisonment.

Sexual touching – child under 10

Under section 66DA, a person who sexually touches a child under 10 or procures another person to do so is guilty of an offence and liable to up to 16 years.

Sexual act – child under 16

Under section 66DD, a person who intentionally carries out a sexual act at or with a child between the ages of 10 and 16 is guilty of an offence and liable to imprisonment for up to two years.

Under section 66DD, a person who intentionally carries out a sexual act at or with a child under 10 is guilty of an offence and liable to imprisonment for up to seven years.

The Crimes Act also contains other sexual offences against children, including grooming a child and persistent sexual abuse of a child. 

Defences

A person charged with an offence relating to sexual contact with a child below the age of consent in Sydney and NSW may be able to rely on the defences of similar age or honest and reasonable mistake.

Similar age

The defence of similar age applies where the alleged victim was 14 or older and the age difference between them and the alleged offender is less than two years. This defence exists in recognition that young people are developing sexually and that the law needs to recognise the reality that consensual sexual relationships exist between young people, while also protecting them from abuse by older people.

The defence of similar age may be relied on where two young people who were both below 16 engaged in sexual activity consensually or where one person below 16 and one person over 16 engaged in sexual activity (provided the age difference was not more than two years.)

Honest and reasonable mistake 

The defence of honest and reasonable mistake applies where the accused honestly and reasonably believed that the alleged victim was aged 16 or older at the time of the alleged offence.

If you require legal advice or representation in relation to the age of consent in Sydney or in any other legal matter, please contact Go To Court Lawyers.