Defence of Similar Age

The defence of similar age can be applied to certain offences involving sexual contact with a child in most Australian jurisdictions. The defence applies when consensual sex occurs between two young people who are of a similar age. There is considerable variation between different states and territories regarding when this defence can be used, especially regarding the minimum age of the child at the time of the alleged offence for the defence to be applicable. Some jurisdictions do not have a defence of similar age. This page focuses on the application of the defence of similar age throughout Australia.

Defence of similar age in New South Wales

In New South Wales, a number of child sex offences are contained in the Crimes Act 1900.

Section 80AG of the Crimes Act 1900 allows an accused to use the defence of similar age if the alleged victim of a child sex offence was aged 14 or older and the age difference between the victim and the accused is not more than two years.

This defence can be applied to the following offences under the Crimes Act 1900:

Sexual intercourse with a child aged between 14 and 16 years old as per section 66C
Sexual touching of a child aged between 10 and 16 years old as per section 66DB
Sexual acts with a child aged between 10 and 16 years old as per section 66DD
Sexual intercourse with a child under special care under section 73
Sexual touching of a child under special care under section 73A

Defence of similar age in Victoria

The Crimes Act 1958 outlines the sexual offences against children in Victoria. In Victoria, an accused may rely on the defence of similar age if the alleged victim of the offence was aged 12 or older and the age difference between them and the accused is no more than two years.

An accused may also use the defence of similar age if they reasonably believed that the alleged victim was 12 or older, and that the age difference between them and the accused was no more than two years.

This defence is established in sections 49V and 49W of the Crimes Act 1958.

The defence of similar age is applicable to the following offences:

Sexual penetration of a child under 16 under section 49B of the Crimes Act 1958
Sexual assault of a child under 16 under section 49D of the Crimes Act 1958
Sexual activity in the presence of a child under 16 under section 49F of the Crimes Act 1958.

Defence of similar age in Western Australia

The Criminal Code Compilation Act 1913 outlines sexual offences against children in Western Australia.

In WA, if a person is accused of having sexual contact with a child between the ages of 13 and 16, they may use the defence of similar age if they are no more than three years older than the child and had a reasonable belief that the child was 16 or older. However, this defence cannot be used if the accused held a position of care, supervision, or authority over the child.

Defence of similar age in the ACT

In the ACT, sexual offences against children are outlined in the Crimes Act 1900.

The defence of similar age is available in the ACT if the alleged victim was over 10 and the accused is no more than two years older than them.

The defence of similar age can be used for the following offences:

• sexual intercourse with a young person under section 55 of the Crimes Act 1900

• act of indecency with a young person under section 61 of the Crimes Act 1900.

Defence of similar age in Tasmania

In Tasmania, a person charged with an offence involving sexual contact with a child under 17 has a defence of similar age if:

The child was 12 or older and the accused was no more than three years older than them; or
The child was 15 or older and the accused was no more than five years older than them.

Child sex offences in Tasmania are set out in the Criminal Code Act 1924.

Defence of similar age in South Australia

In South Australia, child sex offences are set out in the Criminal Law Consolidation Act 1935.

A person charged with having sexual contact with a child under 17 in South Australia, has a defence of similar age if:

The child was aged 16 or older; and
The accused was aged under 17; or
The accused believed on reasonable grounds that the child was over 17.

Queensland

The Criminal Code 1899 outlines sexual offences against children in Queensland.

Unlike in most other states in Australia, there is no defence of similar age available in Queensland.

An accused person charged with having sexual contact with a child over 12 in Queensland has a defence if they had a reasonable belief that the child was over 16. Without this belief, there is no defence available even if the child was 14 or 15 and the accused and the child were close in age.

Northern Territory

In the NT, sexual offences against children are set out in the Criminal Code 1983.

There is no defence of similar age in the NT. A person has a defence if they had a reasonable belief that the child was over 16.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. 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.