Similar Age Defence

10 November 2025 in Criminal Law | 5 min read | skip to FAQs

This article explains how the similar age defence operations in New South Wales. It outlines the statutory framework in Section 80AG of the Crimes Act 1900 (NSW), the offences to which this defence applies to, the onus of proof required from the prosecution and the reasons for its introduction in 2019. This defence is intended to assist young people and their families understand how the law handles consensual contact between teenagers who are in close in age while still extending protection to young children from exploitation.

What is the Similar Age Defence?

The similar age defence is a statutory defence that applies when both people involved in consensual relations are teenagers and the age difference between them is small. The law recognises that young people often explore their sexuality with peers of a similar age and that this conduct should not always be unlawful. NSW parliament introduced this defence in 2019 to prevent situations where one teenager was criminalise for consensual behaviour with another teenager despite being only slightly older.

Section 80AG of the Crimes Act 1900 (NSW) sets out when the defence is able to be applied, and what must be proven if it is raised.

When Does the Similar Age Defence Apply?

For the similar age defence to apply in NSW, two requirements must always be met:

1. The alleged victim must have been at least 14 years of age at the time of the incident; and
2. The age difference between the accused and the alleged victim must not be more than two years.

If these two requisites are met, the defence can be raised in relation to a range of child sexual offences in the Crimes Act 1900.

Onus of Proof is on the Prosecution

Once the defence of similar age is raised by the defence, the burden of proof shifts to the prosecution. Section 80AG(2) states that the prosecution must prove beyond reasonable doubt that:

1. The alleged victim was younger than 14 at the relevant time, or
2. The age difference between the accused and the alleged victim was more than two years.

This means that the accused does not need to prove that the defence applies. The defence need only raise the issue, leaving it to the prosecution to disprove it beyond reasonable doubt.

Offences Where the Similar Age Defence May Be Used

The similar age defence can be raised for the following offences:

1. Section 66C(3) which covers sexual intercourse with a child between 14 and 16 years of age
2. Section 66DB which covers sexual touching of a child between 10 and 16 years of age
3. Section 66DD which covers carrying out a sexual act with or towards a child between 10 and 16 years of age
4. Section 73 which covers sexual intercourse with a person between 16 and 18 who is under special care
5. Section 73A which covers sexual touching of a person between 16 and 18 who is under special care.

Exceptions to the Use of the Similar Age Defence

It is important to note that the similar age defence only applies to offences where the lack of consent is not an element of the charge. For example, it will not apply to a charge such as sexual intercourse without consent, which always requires the prosecution to prove that the complainant did not consent. The defence also cannot be used for aggravated offences or where the accused was in a position of authority or providing special care.

Aggravated Circumstances includes:

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

Position of Authority or Special care includes:

1. Parents
2. Teachers
3. Health professionals
4. Employers
5. Religious Officials

In Summary the Similar Age Defence does not Apply if:

The similar age defence cannot be used if any of the following situations apply:

1. The alleged victim was under 14
2. The age gap is more than two years
3. The charge involves a lack of consent
4. The conduct occurred in circumstances of aggravation
5. The accused held a position of authority or special care

Why Does the Similar Age Defence Exist?

The similar age defence was introduced by parliament to reflect the realities and common occurrence of teenage development and relationships. Before it was introduced, police were required to follow the previous legislative infrastructure, which meant they were charging teenagers who had consensual contact even when they were only slightly older than the other teenager. This often resulted in young people being treated as offenders in situations that did not reflect any level of exploitation or coercion.

The introduction of the defence has created a balance between protecting younger children from predatory behaviour and avoiding unnecessarily criminalising teenagers involved in consensual peer relationships.

Age of Consent in NSW

The general age of consent in NSW is 16 years of age. This means that a person aged 16 or older can legally consent to sexual activity. However, there are special rules for young people aged 16 or 17 who are under the special care of another person. In those situations, consent cannot be given even if the young person is of age. If the adult is in a position of authority and has responsibility for the care and well being of a young person between 16 and 18 years, they are considered under special legislation. This applies to parents, teachers, health professionals, employers or religious officials. The child is said to be under special care and if they are sexually abused, the offender faces significant penalties. These are a maximum of 4 years imprisonment if the victim is 17-18 years old, or 8 years if the victim is 16-17 years old. The primary aim of the age of consent is to prevent sexual exploitation of children by older people. For further information, please see our article on the Age of Consent for Sexual Activity.

Where the complainant is under 16, but at least 14, the similar age defence may apply if the age difference between the teenagers is less than two years.

How can BSM Sydney Lawyer assist you?

Brander Smith McKnight Sydney Lawyers has extensive experience representing clients charged with child sexual offences and other serious criminal matters. Our criminal defence lawyers regularly appear in the Local and District Courts and understand the complexity of these cases and the sensitivity required when acting for young people and their families. We will listen carefully to you, review the documents from the police and liaise with the prosecutors to achieve the best possible outcome for you. This may involve making representations to negotiate a lesser charge, such as the similar age legislation. For more information on representations, see our article on representations. The senior criminal lawyers at Brander Smith McKnight Lawyer Sydney offer a free 20-minute consultation

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