Age of Consent NSW: How Does It Work?

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What is the age of consent in NSW? This is the age at which the law deems a person to be competent to agree or give consent for sexual activity. Hence, if a person has not reached the age of consent, they are unable to lawfully agree to sexual activity. The law says that sexual intercourse is:

• Any penetration of a person’s genitalia or anus by any part of the body of another person or any object; or
• Any kind of oral sex.

This means a person who engages in sexual activity with a child under that age can be guilty of a sexual offence. This may include child sexual assault, regardless of whether the child gave express or implied consent. The Crimes Act 1900 deals with the age of consent NSW laws and all matters relating to this. This article explores relevant matters on the age of consent in NSW.

Age of Consent Laws NSW

In New South Wales, a person can legally consent to a sexual act once they are 16 years of age. So, any person who engages in sexual activity with a person under the age of consent may be guilty of a crime.

Having sexual intercourse even if the person under 16 wants to engage in the conduct will still make the act illegal. In the eyes of law, a person under 16 is legally incapable of giving sexual consent. Only sexual activity with any consenting person above 16 is legal.

What Does the Crimes Act 1900 Say?

In understanding the age of consent NSW laws, one must first understand the meaning of “consent”. Generally, in our daily lives, consent means getting permission to do something.

Section 61HI of the Crimes Act 1900 provides the legal definition of “consent.” It provides that a person “consents” to a sexual activity if, at the time of the sexual activity, the person gives free and voluntary agreement to the sexual activity.

The law also provides important points regarding consent:

• A person may, by words or conduct, withdraw consent to a sexual activity at any time.
• Sexual activity occurs without consent if it occurs after a party withdraws sexual consent.
• A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
• A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. Example: A person who consents to a sexual activity using a condom is not to be taken to consent to a sexual activity without using a condom.
• A person who consents to a sexual activity with a person on one occasion is not to be taken to consent to a sexual activity with either: that person on another occasion, or another person on that or another occasion.

Hence, instances, where consent is not freely and voluntarily given, include:

• the person doesn’t have the capacity to give consent because of a cognitive incapacity such as a mental illness,
• the person is under the influence of alcohol or other drugs making them incapable of giving sexual consent,
• the person is unconscious or asleep,
• the person only participated because another party forced them to or because they are fearful of harm to them or their property. This includes threatening behaviour that occurs at any time (not just at the time of the sexual activity), and
• the person only participated because another party coerced, blackmailed or intimidated them at some time (not just at the time of the sexual activity).

Exceptions to the Age of Consent NSW

Indeed, the general rule is that 16 is the age of sexual consent. However, there are important exceptions. These exceptions are provided under Sections 73 and 73A of the Crimes Act 1900, which make it an offence to engage in sexual intercourse with a person under 18 years of age if they are under the “special care” of a person, or to sexually touch a young person under special care.

Age of Consent NSW and Sexual Intercourse with Persons Under Special Care

Content warning: This portion of the article contains information of sexual offences, and explicit language.

Under Section 73 of the Crimes Act 1900, it is an offence to have sexual intercourse with a young person who is between 16 and 18 years old where the young person is under the person’s “special care”. A “young person” is a person who is at least 16 but less than 18 years old. To establish the offence, the prosecution must prove that:

1. They had sexual intercourse with a young person,
2. They knew, or were reckless as to whether, he or she was a young person, and
3. The young person was under your ‘special care’.

Sexual Intercourse Definition

The definition of “Sexual intercourse” is:

1. The penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person,
2. The introduction of a penis into the mouth of another person,
3. The application of the mouth or tongue to the female genitalia, or
4. The continuation of any of these activities.

Young People Under Special Care

The young person was under your “special care” if you are:

1. A parent, or grandparent of the young person;
2. The guardian or authorised carer of the young person;
3. The spouse or de factor partner of a parent, grandparent, guardian or authorised carer of the young person;
4. A teacher, principal or deputy principal of the young person;
5. Performing work at the school of the alleged victim and has the young person under their authority;
6. Has established a personal relationship with the young person through provision of religious, sporing, musical or other instruction;
7. A custodial officer of an institution in which the young person is an inmate;
8. A health professional to a young person with a serious physical disability;
9. Performing work in association with residential care to the young person; or
10. Performing work for an organisation that provides refuge or crisis accommodation to the young person.

In addition, courts cannot find you guilty if you were married to the young person.

Penalties

Sexual intercourse with a young person under special care carries a maximum penalty of:

• 4 years’ imprisonment where the young person was at least 17 but less than 18 years of age; or
• 8 years’ imprisonment where the young person was at least 16 but less than 17 years of age.

Age of Consent NSW and Sexual Touching of a Person Under Special Care

The definition of “sexual touching” is as follows: Touching another person with any part of the body, or through anything, including clothing, where a reasonable person would consider it to be sexual. Under Section 73A of the Crimes Act 1900, to establish the offence, the prosecution must prove that:

1. You sexually touched a young person under your special care, or you incited that young person to sexually touch themselves, or you incited a third person to sexually touch a young person, or you incited a young person to sexually touch a third person, and
2. You did so intentionally without reasonable grounds.

Important matters that determine whether touching is sexual include:

1. Whether there is touching of the genitals, or the breasts of a female, or the breasts of someone who identifies as female,
2. Whether the act was for sexual arousal or gratification, and
3. Whether any other aspect of the touching, or the surrounding circumstances, make it sexual.

Penalties

Sexual touching of a young person under special care carries a maximum penalty of 2 years’ imprisonment where the young person was at least 17 but less than 18 years of age, or 4 years’ imprisonment where the young person was at least 16 but less than 17 years of age.

The Importance of Seeking Legal Advice

Has someone engaged in sexual activity with you without your consent? Know that the act can lead to a criminal offence and lawyers will be able to help. JB Solicitors has a leading team of experienced lawyers that can help with your situation. We can offer you legal representation and legal advice on the age of consent NSW laws.

Do you have any more queries on the age of consent in NSW? Contact us today.