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Age of Consent for Sexual Activity

The age of consent is 16 years old in NSW. This means that any sexual activity between an adult and someone under the age of 16 is considered a criminal offence under Section 66C of the Crimes Act 1900 (‘the Act’).

The age of consent is an important legal concept that protects children and young people from sexual exploitation and abuse, ensuring that they are able to make informed decisions about sexual activity and have the ability to give meaningful consent.

What is Considered Sexual Activity?

Sexual activity includes but is not limited to:

  • Sexual intercourse
  • Sexual touching
  • Sexual acts
  • Sending explicit images
  • Recording someone in a private act
  • Engaging in voyeurism
  • Upskirting

Age of consent laws apply equally to same-sex sexual activity as they do to opposite-sex sexual activity.

In recent years, there have been calls to raise the age of consent for sexual activity to 18. Supporters of this change argue that it would provide greater protection for young people and help prevent sexual exploitation and abuse. However, opponents argue that it may be difficult to enforce and could criminalise consensual sexual activity between young people.

Penalties for breaching Age of Consent laws

The severity of the punishment is determined by the age of the victim and the type of crime committed.

Sexual assault

Under Section 66C of the Act, sexual intercourse with a child who is between the ages of 10-14 and 14-16 years old carries a maximum penalty of 16 years and 10 years imprisonment, respectively.

Section 66A of the Act prescribes that having sexual intercourse with a child under the age of 10 is punishable with a maximum penalty of life imprisonment, and attempting to do so carries a maximum penalty of 25 years imprisonment.

Sexual touching

Sexual touching or inciting sexual touching with a person below 16 years of age is considered an offence according to Section 66DA and 66DB of the Act. The maximum penalties are 10 years imprisonment for crimes against a person 10-16 years of age and a maximum of 16 years imprisonment for crimes against a child under 10 years of age.

Sexual acts

According to Section 66DC of the Act, engaging in or inciting a sexual act with a child under 16 years old, or encouraging another person to do so, is a criminal offence. The maximum penalties for these offences are a maximum penalty of 2 years imprisonment for crimes against a person 10-16 years of age and a maximum penalty of 7 years imprisonment for crimes against a person under 10 years of age.

Aggravated circumstances that apply to age of consent laws

There are several circumstances that are considered aggravating factors in cases of sexual assault, including

  • The accused physically assaults the child
  • The accused threatens to assault the child or any other person present
  • The child has a serious disability or cognitive impairment
  • The accused commits the assault with another person or group of people
  • The accused breaks into a house or building to commit the offence
  • The accused restricts the child’s movement before or after the assault

The maximum penalties for sexual intercourse that occurs in circumstances of aggravation are a maximum of 12 years imprisonment for crimes against a person 14-16 years of age and a maximum of 20 years imprisonment for crimes against a person 10-14 years of age.

Persons under special care

Engaging in sexual activity with a young person between the ages of 16 and 18 who is under the offender’s “special care” is considered a criminal offence under Sections 73 and 73A of the Act. A person has “special care” of a young person if they are in a position of authority and have responsibility for their care and wellbeing, for example a parent, teacher, health professional, religious official or employer.

The maximum penalty for sexual activity with a person under special care is 4 years imprisonment if the victim is 17-18 years old, or 8 years if the victim is 16-17 years old.

Defences used for age of consent offences

Similar Age Defence

If the alleged victim and the accused have an age difference of less than 2 years and the victim is aged 14 or older, the defence of “similar age” can be used. This defence arises in situations where both parties are willing participants in sexual activity and are aged between 14 and 16, or where one person is over 16 and the other is below, but the age difference between them is no more than 2 years. Prior to a 2019 amendment, the defence of similar age did not exist and is now located in Section 80AG of the Act.

Honest and Reasonable Mistake 

If a person is charged with a child sexual offence, they may have a defence if they made an “honest and reasonable mistake” regarding the age of the young person involved. The mistake must meet both the honest and reasonable criteria. Simply believing that the other person is over the age of 16 is not sufficient if the circumstances surrounding that belief are not reasonable.

How can BSM Help?

The highly experienced criminal lawyers at Brander Smith McKnight can assist you with any queries regarding age of consent sexual offences.  We will advise you of potential legal defences and vigorously advocate for you in negotiations and court representations.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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